P. v. MesaRamos

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Filed 6/15/20 P. v. MesaRamos CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE DEJESUS MESARAMOS,
Defendant and Appellant.
A157828
(Alameda
Super. Ct. No. H39529B)
Jose DeJesus MesaRamos appeals from the denial of his petition for
resentencing pursuant to Penal Code section 1170.95,1 which provides for the
resentencing of individuals convicted of murder under a felony murder or
natural and probable consequences theory if they could no longer be convicted
of murder under January 1, 2019 amendments to the Penal Code. He
contends his hand-written petition under section 1170.95 made out a prima
facie showing for relief, so it was error for the trial court to summarily deny it
without a hearing and without appointing counsel. We affirm. We conclude
that where, as here, the record of conviction unambiguously shows that,
contrary to allegations in the section 1170.95 petition, the defendant was not
convicted of murder under a felony murder or natural and probable
1 Further statutory references are to the Penal Code unless otherwise indicated.

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consequences theory, the petitioner has not made out a prima facie case for
relief and the petition may be summarily denied.
I. STATUTORY BACKGROUND
Before 2019, there were three ways in which a person could be
convicted of murder based on a killing committed by another person under
aiding and abetting principles. First, he or she might be convicted under a
direct aiding and abetting theory. (People v. McCoy (2001) 25 Cal.4th 1111,
1118; People v. Chiu (2014) 59 Cal.4th 155, 158, 166–167 (Chiu).) “ ‘Second,
under the natural and probable consequences doctrine, an aider and abettor
[was] guilty not only of the intended crime, but also “for any other offense
that was a ‘natural and probable consequence’ of the crime aided and
abetted.” ’ ” (Chiu at p. 158.) Third, “ ‘ “[u]nder the felony-murder doctrine,
when the defendant or an accomplice kill[ed] someone during the
commission, or attempted commission, of an inherently dangerous felony, the
defendant [was] liable for either first or second degree murder, depending on
the felony committed. If the felony is listed in section 189, the murder [was]
of the first degree; if not, the murder [was] of the second degree.” ’ ” (People v.
Powell (2018) 5 Cal.5th 921, 942.)
Senate Bill 1437 was signed into law, effective January 1, 2019, to
“amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It
amended section 189, which defines the degrees of murder, to limit murder
liability based on felony murder to actual killers or to aiders and abettors
who (1) intend to kill, or (2) act as “a major participant in the underlying

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felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.” (§ 189, subd. (e) (3); People v. Verdugo
(2020) 44 Cal.App.5th 320, 326 (Verdugo), review granted March 18, 2020,
No. S260493.) These changes do not apply when the victim was a peace
officer acting in the course of his or her duties and the defendant knew or
reasonably should have known that fact. (§189, subd. (f).) Senate Bill 1437
also amended the definition of malice in section 188, to provide that “[m]alice
shall not be imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3); Verdugo, at p. 326.)
Senate Bill 1437 added section 1170.95, which provides that “[a] person
convicted of felony murder or murder under a natural and probable
consequences theory may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and to be
resentenced on any remaining counts.” (§ 1170.95, subd. (a).) The individual
may file a petition if three conditions are met: “(1) A complaint, information,
or indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of first
degree or second degree murder following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first degree or
second degree murder. [¶] (3) The petitioner could not be convicted of first or
second degree murder because of changes to [Penal Code] Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subds. (a)(1)-(3), italics added.)
Under subdivision (b), the petition must include a declaration that the
petitioner is eligible for relief based on the requirements above; the case
number and year of the conviction; and whether the petitioner requests the
appointment of counsel. (§ 1170.95, subd. (b)(1).)

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Section 1170.95 describes what must be included in a petition for
resentencing, and sets forth the procedure to be followed by a trial court upon
receiving a petition: “The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor shall file
and serve a response within 60 days of service of the petition and the
petitioner may file and serve a reply within 30 days after the prosecutor
response is served. . . . If the petitioner makes a prima facie showing that he
or she is entitled to relief, the court shall issue an order to show cause.” (§
1170.95, subd. (c).)

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II. BACKGROUND
On March 11, 2005, Sergio Duenas, Carlos Casteneda and Oscar
Martinez returned to Martinez’s home in Casteneda’s Toyota. Duenas and
Castaneda remained in the car while Martinez got out. A red Saturn, driven
by appellant, passed by. Codefendant Frank Ledesma Sr. was in the front
passenger seat and codefendant Frank Ledesma Jr. was in the rear
passenger seat. The Saturn returned moments later, and appellant and the
codefendants fired shots from three guns: a .357 revolver, a shotgun and a .45
pistol. Ledesma Sr. admitted he fired the shotgun. The evidence indicated
that appellant fired the pistol and that Ledesma Jr. fired the revolver and
fatal bullet. The police pursued appellant and the codefendants. After the
Saturn crashed, appellant and the codefendants fled on foot and discarded
their weapons and other items, which the police later found. The police
ultimately detained appellant and the codefendants. Martinez identified
them as the shooters.
Appellant and the Ledesmas were charged with the first degree murder
of Duenas (§ 187, subd. (a); Count 1), and the attempted murder of Castaneda
and Martinez (§§ 664/187; Counts 2 and 3). Appellant alone was charged
with the unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd.
(a); Count 4). As to Count 1, the information included a special circumstance
allegation that the murder was intentional and committed by shooting from a
vehicle at a person outside it with the intent to inflict death (§ 190.2, subd.
(a)(21)). Special allegations that appellant and codefendants committed the
murder and attempted murder for the benefit of a criminal street gang (§
186.22, subd. (b)(1)), and that a principal personally and intentionally
discharged a firearm proximately causing great bodily injury or death (former
§ 12022.53, subd. (d), (e)(1)) were also included.

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A jury trial was held. The instructions given to the jury advised them
that appellant and his codefendants were being “prosecuted for first-degree
murder under two theories: (1) the murder was willful, deliberate, and
premeditated and (2) the murder was committed by shooting a firearm in
another vehicle.” As to first degree premeditated murder, the jury was
instructed, “A defendant is guilty of first-degree murder if the People have
proved that he acted willfully, deliberately, and with premeditation. The
defendant acted willfully if he intended to kill. The defendant acted
deliberately if he carefully weighed the considerations for and against his
choice and, knowing the consequences, decided to kill. The defendant acted
with premeditation if he decided to kill before committing the act that caused
death.” As to first degree murder by shooting from a vehicle, the jury was
instructed, “A defendant committed this kind of murder if: [¶] 1. He shot a
firearm from a motor vehicle; [¶] 2. He intentionally shot at a person who was
outside the vehicle; [¶] AND [¶] 3. He intended to kill that person.”
The jury was also instructed on aiding and abetting principles under
CALCRIM Nos. 400 and 401, the latter of which provided: “To prove a
defendant is guilty of a crime based on aiding and abetting that crime, the
People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2.
The defendant knew that the perpetrator intended to commit the crime; [¶] 3.
Before or during the commission of the crime, the defendant intended to aid
and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The
defendant’s words or conduct did in fact aid and abet the perpetrator’s
commission of the crime.” No instructions were given on the theories of
felony murder or of natural and probable consequences.
An instruction was given concerning the “drive-by” special
circumstance allegation: “The defendant is charged with the special

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circumstance of committing murder by shooting a firearm from a motor
vehicle in violation of Penal Code section 190.2(a)(21). [¶] To prove that this
special circumstance is true, the People must prove that: [¶] 1. The defendant
shot a firearm from a motor vehicle, killing Sergio Duenas; [¶] 2. The
defendant intentionally shot at a person who was outside the vehicle; [¶]
AND [¶] 3. At the time of the shooting, the defendant intended to kill.”
Appellant was convicted of first degree murder, as well as the
remaining charges and allegations, including the “drive-by” special
circumstance allegation. He was sentenced to life without the possibility of
parole for the murder count, two consecutive terms of seven years each for
the attempted murder counts, and two consecutive terms of 25 years to life,
plus 20 years for the firearm enhancements. This court affirmed in an appeal
from the judgment in 2012. (People v. Ledesma (April 10, 2012, A125441)
[nonpub. opn.].)
On June 5, 2019, appellant filed a pro se petition for resentencing
under section 1170.95. He alleged that because of changes made to sections
188 and 189 by Senate Bill 1437, he could no longer be convicted of first or
second degree murder because (1) he was not Duenas’s actual killer; (2) he
did not act with intent to kill; (3) he was not a major participant in the
underlying felony and did not act with reckless indifference to human life;
and (4) Duenas was not a peace officer acting in the performance of his duties
when he was shot. On June 17, 2019, the court issued a 33-page order
denying the petition The order discussed the facts of the underlying case, the
evidence presented at trial, the closing arguments, the jury instructions
given, and the statutory changes effected by Senate Bill 1437. The court
concluded that appellant was not entitled to relief under section 1170.95
because he was convicted as a direct aider and abettor, not under a felony

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murder or natural and probable consequences theory. It also concluded that
even if appellant had been convicted under a felony murder theory, the jury
found he acted with intent to kill when it found the drive-by shooting special
circumstance allegation to be true.2
III. DISCUSSION
Applying a de novo standard of review, we conclude that the trial court
correctly denied appellant’s resentencing petition. (See, e.g., Taylor v.
Department of Industrial Relations Etc. (2016) 4 Cal.App.5th 801, 807
[constitutional and statutory construction questions are reviewed de novo];
Greene v. Marin County Flood Control & Water Conservation Dist. (2010) 49
Cal.4th 277, 287 [questions of law are subject to de novo review].) Appellant
does not argue that on the merits, he is entitled to relief under section
1170.95 because he was convicted of murder under a theory that is no longer
valid after the enactment of Senate Bill 1437. Rather, he presents a
comprehensive analysis of section 1170.95 that advances a single essential
point, namely, that the court was bound to accept the allegations of
appellant’s petition as true until disproven at a hearing the court was obliged
to hold. We disagree.
Section 1170.95, subdivision (b)(1)(A) requires a defendant to file a
petition which includes a declaration by the defendant that he or she is
eligible for relief. Section 1170.95, subdivision (c) provides: “The court shall
review the petition and determine if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this section. If the
petitioner has requested counsel, the court shall appoint counsel to represent
the petitioner. The prosecutor shall file and serve a response within 60 days
2 Appellant also filed a companion petition for a writ of habeas corpus, which the trial
court denied.

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of service of the petition and the petitioner may file and serve a reply within
30 days after the prosecutor response is served. These deadlines shall be
extended for good cause. If the petitioner makes a prima facie showing that
he or she is entitled to relief, the court shall issue an order to show cause.”
Appellant posits that proceedings under section 1170.95 are “special
proceedings” created by statute and that consequently, the terms and
conditions of that statute must be strictly followed. He argues that a “prima
facie case” is established when the petition alleges facts that, if true, would
entitle the petitioner to relief, even if those allegations are directly
contradicted by the record on appeal. He claims section 1170.95 establishes a
two-step procedure that requires the court to first evaluate the allegations in
the petition for their facial validity and, if the petition asserts facts that
would entitle the petitioner to relief if proven to be true, counsel must be
appointed upon request and an evidentiary hearing must be held.
We are not persuaded that if a petitioner frames allegations which
track the three elements specified in section 1170.95, subdivision (a), the trial
court must accept the truth of those allegations, and has only the ministerial
duty to issue the order to show cause and conduct “a hearing to determine
whether to vacate the murder conviction.” (§ 1170.95, subd. (d)(1).) Although
section 1170.95 does not specify what materials the court may consider in
determining whether a prima facie case for relief has been established,
nothing in the statute limits the court’s consideration to the petition, and
nothing precludes the court from conducting its own review of other readily
available information, such as the court’s file. “ ‘It would be a gross misuse of
judicial resources to require the issuance of an order to show cause or even
appointment of counsel based solely on the allegations of the petition, which
frequently are erroneous, when even a cursory review of the court file would

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show as a matter of law that the petitioner is not eligible for relief.’ ” (People
v. Lewis (2020) 43 Cal.App.5th 1128, 1138, review granted Mar. 18, 2020,
S260598 (Lewis), citing Couzens, et al., Sentencing Cal. Crimes (The Rutter
Group 2019) 23:51(H)(1), pp. 23-150 to 23-151.)3
The bedrock goal of statutory construction is to effectuate the purpose
of the statute. (E.g., People v. Pennington (2017) 3 Cal.5th 786, 795; People v.
Tran (2015) 61 Cal.4th 1160, 1166.) “[O]ur task is to select the construction
that comports most closely with the Legislature’s . . . intent, with a view to
promoting rather than defeating the statute’s . . . purpose, and to avoid a
construction that would lead to unreasonable, impractical, or arbitrary
results.” (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381,
388; Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1291.)
In the context of busy trial courts screening petitions to determine whether a
prima facie showing of entitlement to relief is made, it would indeed produce
“unreasonable, impractical, and arbitrary” results if courts could not consult
the judgment of conviction in their own case files and records.
We find guidance in the prior sentence reduction measures commonly
known as Propositions 36 and 47. Each of these measures give the trial court
the authority to determine if the petitioner was eligible for relief. (See §§
1170.126, subd. (f) [Prop. 36: “Upon receiving a petition for recall of sentence
3 The California Supreme Court is currently considering the issue of whether the record
of conviction may be considered when determining if a prima facie case has been stated
under section 1170.95, so as to require a hearing and the appointment of counsel.
(Verdugo, supra, 44 Cal.App.5th 320, review granted March 18, 2020, No. S260493;
Lewis, supra, 43 Cal.App.5th 1128, review granted March 18, 2020, No. S260598;
People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted March 18, 2020, No.
S260410.)

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under this section, the court shall determine whether the petitioner satisfies
the criteria [for eligibility]”], 1170.18, subd. (b) [Prop. 47: “Upon receiving a
petition [for recall of sentence], the court shall determine whether the
petitioner satisfies the criteria [for eligibility]”].) In using that authority,
trial courts have regularly and routinely consulted the record of conviction in
determining whether the petitioning defendant has met his or her burden of
showing eligibility for resentencing under both Proposition 36 (People v.
Bradford (2014) 227 Cal.App.4th 1322, 1331-1332) and Proposition 47 (People
v. Johnson (2016) 1 Cal.App.5th 953, 967-969).
The instant case provides a good example of why we believe the
Legislature intended to allow trial courts to consider the record of conviction
when determining whether a prima facie case for relief has been made under
section 1170.95. Appellant averred in his petition that he “could not now be
convicted of 1st or 2nd degree murder because of changes made to Penal Code
[sections] 188 and 189, effective January 1, 2019.” He further averred that
he had been convicted of first degree murder and, “I was not the actual
killer,” “I did not, with the intent to kill, aid, abet, counsel, command, induce,
solicit, request, or assist the actual killer in the commission of murder in the
first degree,” and “I was not a major participant in the felony or I did not act
with reckless indifference to human life during the course of the crime or
felony.” Yet the court’s own records in this case clearly show that the jury
which convicted appellant of first degree murder was not even instructed on
felony murder or a natural and probable consequences theory, but was only
instructed on a theory of direct aiding and abetting. (CALCRIM Nos. 400,
401.) Direct aiding and abetting remains a viable theory of murder after
Senate Bill 1437. (Lewis, supra, 43 Cal.App.5th at p. 1137.) Moreover, the

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jury found the special circumstance allegation true, necessarily finding that
appellant had the intent to kill.
Appellant contends that the trial court’s failure to appoint counsel
violated his state and federal constitutional rights to due process and the
assistance of counsel. Because appellant has not set forth a prima facie case
that he falls within section 1170.95, we conclude that the denial of counsel
did not violate his constitutional rights.
The potential constitutional issue arises because section 1170.95 does
not mandate counsel during the trial court’s initial assessment to determine
whether the petition has established a prima facie case that the petitioner
falls within the statute. The Lewis and Verdugo courts considered this
question and concluded that the text and structure of section 1170.95 indicate
that the requirement arises only after the trial court’s determination that the
petition sets forth such a prima facie case. (See Lewis, supra, 43 Cal.App.5th
at p. 1140; Verdugo, supra, 44 Cal.App.5th at pp. 332-333.) The first
sentence of section 1170.95, subdivision (c), requires the trial court to make a
prima facie showing; the second sentence mandates the appointment of
counsel if requested; and the third sentence requires the prosecutor to file
and serve a response and allows the petitioner to file a reply. “The structure
and grammar of this subdivision indicate the Legislature intended to create a
chronological sequence: first, a prima facie showing; thereafter, appointment
of counsel for petitioner; then, briefing by the parties.” (Verdugo, at p. 332;
see also Lewis, at p. 1140.)
This sequence makes sense given the greater role for counsel to play in
responding to the prosecution’s brief, which would only be necessary if the
petition succeeds at the first prima facie stage. (Verdugo, supra, 44
Cal.App.5th at p. 332.) It also conserves public resources by avoiding

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appointment of counsel in cases where the petitioner is ineligible for relief as
a legal matter. We agree with the analyses in Lewis and Verdugo and hold
that the trial court did not violate section 1170.95 in declining to appoint
counsel before concluding that appellant did not establish a prima facie case
that he fell within the statute. As our Supreme Court has held in the context
of post-conviction coram nobis petitions, “in the absence of adequate factual
allegations stating a prima facie case, counsel need not be appointed either in
the trial court.” (People v. Shipman (1965) 62 Cal.2d 226, 232; see also In re
Clark (1993) 5 Cal.4th 750, 780 [“the appointment of counsel is demanded by
due process concerns” if a post-conviction “petition attacking the validity of a
judgment states a prima facie case leading to issuance of an order to show
cause”].) We are not persuaded by appellant’s citation to People v. Rouse
(2016) 245 Cal.App.4th 292, 300 (Rouse), in which the court held resentencing
under Proposition 47 to be a critical stage in the proceedings requiring
counsel. Although Rouse held that a petitioner who had established
eligibility for relief was entitled to counsel at his re-sentencing hearing, it did
not address whether counsel would be required before a petitioner
established eligibility. (Id. at p. 301.)
We note that this is not a case in which the record is ambiguous as to
whether appellant was convicted under a theory that is now invalid under
Senate Bill 1437. It is clear from the record that the only theory on which the
jurors were instructed was direct aiding and abetting, and it is equally clear
they found he acted with an intent to kill. This is not a case, then, where the
appointment of counsel might allow the defendant to effectively develop new
evidence as is allowed under section 1170.95. (§1170.95, subd. (d)(3).)
Whatever evidence counsel might present regarding felony murder and the
natural and probable consequences theory, appellant would stand convicted

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as a direct aider and abettor who acted with intent to kill. This excludes him
from the statute.
III. DISPOSITION
The order denying appellant’s petition under section 1170.95 is
affirmed.

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NEEDHAM, J.
We concur.
SIMONS, ACTING P.J.
BURNS, J.
(A157828)

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