P. v. Falcon

Filed 11/9/20; THE SUPREME COURT OF CALIFORNIA HAS GRANTED REVIEW
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
CHRISTOPHER FALCON,
Defendant and Appellant.
B296392
(Los Angeles County
Super. Ct. No. MA046170-02)
APPEAL from an order of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Affirmed.
Carlo Andreani, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________

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Appellant Christopher Falcon entered a plea of no contest
to second degree murder in violation of Penal Code1 section 187,
subdivision (a), in 2011. Following the enactment of Senate Bill
No. 1437 (§ 1170.95), appellant filed a petition seeking
resentencing on the theory that he entered a plea of no contest to
avoid a conviction of first or second degree murder under the
natural and probable consequences doctrine. The trial court
denied the petition, finding that appellant failed to make a prima
face case. Appellant appeals from the order denying that
petition. We affirm the court’s order.2
I. Prima Facie Case
Appellant contends he made a prima facie showing that he
fell within the provisions of section 1170.95 when he filed his
form petition, signed under penalty of perjury. In that petition
he declared that an information was filed against him which
permitted the prosecution to proceed under a theory of felony
murder or under the natural and probable consequences doctrine;
he pled no contest to second degree murder because he believed
he could have been convicted of first or second degree murder
1 Further undesignated statutory references are to the Penal
Code.
2 On April 20, 2020, we granted respondent’s request that we
take judicial notice of the joint preliminary hearing transcript for
the joint preliminary hearing of appellant and co-defendant
Mancera. As we explain in this opinion, a trial court may
properly consider the petitioner’s preliminary hearing transcript
in deciding a petition for resentencing. We now deny appellant’s
April 16, 2020 motion to strike the portions of respondent’s brief
that rely on the preliminary hearing transcript.

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under the felony murder or natural and probable consequences
doctrine; and he could not now be convicted of second degree
murder due to changes to section 188.
If a petitioner files a facially sufficient petition, as
appellant did in this case, the trial 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.” (§ 1170.95. subd. (c), italics added.) Several courts have
held that after determining the petition is facially sufficient, the
trial court should review the record of conviction to determine
whether the petitioner is ineligible for relief as a matter of law.
(See, e.g. People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review
granted Mar. 18, 2020, S260410; People v. Lewis (2020)
43 Cal.App.5th 1128, 1139–1140, review granted Mar. 18, 2020,
S260598.) We adopt the persuasive analyses in these decisions.
Here, the trial court found the record of conviction showed
“defendant entered a plea to second degree murder as an aider
and abettor to the actual shooter, co-defendant Anthony
Mancera. Co-defendant Mancera subsequently was convicted of
first degree murder after trial by jury.”
Appellant pled no contest to second degree murder, but
stipulated only “to a factual basis pursuant to People versus
Holmes based upon count one, paragraph one, of the charging
information for the purpose of entering this plea only.” People v.
Holmes provides: “If the trial court inquires of defense counsel
regarding the factual basis [for a plea], it should request that
defense counsel stipulate to a particular document that provides
an adequate factual basis, such as a complaint, police report,
preliminary hearing transcript, probation report, grand jury

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transcript, or written plea agreement.” (People v. Holmes (2004)
32 Cal.4th 432, 436.)3
The first paragraph of count 1 of the information, as
stipulated to by appellant’s counsel, states: “On or about July 2,
2009, in the County of Los Angeles, the crime of MURDER, in
violation of PENAL CODE SECTION 187(a), a Felony, was
committed by ANTHONY MANCERA and CHRISTOPHER
ROBERT FALCON, who did unlawfully, and with malice
aforethought murder SERGIO SANTIAGO, a human being.”
Nothing in this paragraph suggests appellant was being
prosecuted under the natural and probable consequences doctrine
or the felony murder rule; to the contrary it suggests he was
being prosecuted as a principal. The information contains a
firearm enhancement alleging that Mancera personally
discharged a firearm resulting in death, which would make
appellant an aider and abettor.
The trial court accordingly turned to the record of
conviction for clarification concerning the prosecutor’s theory of
the case and the evidence against appellant. As we discuss in
more detail below, while the trial court improperly considered
evidence offered at Mancera’s trial, the same evidence is found in
appellant’s preliminary hearing transcript. A witness testified at
appellant’s preliminary hearing that about five seconds after
Mancera and appellant approached the victim and his
3 There are many cases in California law entitled People v.
Holmes. Appellant suggests his counsel was referring to People v.
Holmes (1960) 54 Cal.2d 442, which stands for the proposition
that a jury waiver must be expressed and not implied. In
context, it is clear defense counsel was referring to this more
recent and relevant case.

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companion, appellant told Mancera to get his gun out. Mancera
did so, and shot the victim. Appellant stated: “This is how we do
it.” At the preliminary hearing an expert on gang evidence also
testified that the statement, “This is how we do it”, was an
affirmation that the shooting was a proper response to the
victim’s lack of respect.
Appellant’s comments immediately before and after
Mancera’s shooting show that appellant encouraged Mancera to
take out his gun during a planned confrontation with the victim,
and then approved Mancera’s fatal shooting of the victim. His
statement was further illuminated by expert gang evidence. This
would be ample evidence to convict appellant as a direct aider
and abettor if he were tried after the amendments to section 188.
(CALJIC 3.01 [“A person aids and abets the [commission] of a
crime when he or she: [¶] (1) With knowledge of the unlawful
purpose of the perpetrator, and [¶] (2) With the intent or purpose
of committing or encouraging or facilitating the commission of
the crime, and [¶] (3) By act or advice aids, promotes, encourages
or instigates the commission of the crime.”].) Thus, the trial
court did not err in finding appellant had failed to make a prima
facie showing.
II. Reliance on Transcripts of Co-defendant Mancera’s Trial.
Appellant contends the trial court erred in relying on the
records of co-defendant Mancera’s trial. We agree, but find the
error harmless.
The trial court’s order states: “Pursuant to Evidence Code
section 452(d), the court takes judicial notice of the trial and
appellate court records in this case.” The trial court, however,
referred almost exclusively to evidence, argument and jury
instructions at Mancera’s trial. The trial court summarized the

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pertinent evidence at trial as follows: “The evidence at trial
showed that, prompted by the defendant, co-defendant Mancera
shot the victim at close range as part of a longstanding gang
dispute with the victim, his ex-girlfriend’s new boyfriend.”
Appellant was not a defendant or a witness at that trial, and the
trial court should not have considered records of Mancera’s trial
or his subsequent appeal.
Appellant’s and Mancera’s joint preliminary hearing
transcript was part of Mancera’s record of conviction. But the
transcript is also part of appellant’s record of conviction and, as
such, the trial court and this court may properly consider it.
(People v. Reed (1996) 13 Cal.4th 217, 223.) As stated above, we
agree with People v. Lewis and People v. Cornelius that a trial
court may properly rely on the petitioner’s record of conviction,
including the preliminary hearing transcript. (See also People v.
Perez (2020) 54 Cal.App.5th 896, 905–906 [court may rely on
petitioner’s preliminary hearing transcript in determining
whether a prima facie case has been made].)
While it is not clear if the trial court in fact read the
preliminary hearing transcript in Mancera’s file, we see no
reasonable possibility that the court would have reached a
different conclusion based on the preliminary hearing evidence
alone, given that the evidence in that transcript was virtually
identical to the evidence at trial.
III. Denial of Counsel
Appellant contends the trial court erred in summarily
denying his resentencing petition without appointing counsel
because he presented a prima facie case for relief. He contends
he had a statutory right to counsel and a state and federal
constitutional right to counsel as well. He argues that if there is

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not a right to counsel in post-conviction proceedings, the due
process clauses of the state and federal constitutions guarantee
his right to assistance of counsel. We do not agree.
When we interpret statutes, “giving effect to legislative
purpose is the touchstone of our mission.” (People v. Valencia
(2017) 3 Cal.5th 347, 409.) “The text of the statute is integral to
our understanding of the statute’s purpose.” (Ibid.) “We must
take ‘the language . . . as it was passed into law, and [we] must, if
possible without doing violence to the language and spirit of the
law, interpret it so as to harmonize and give effect to all its
provisions.’ ” (Id. at pp. 409–410.)
Section 1170.95 was enacted as part of the legislative
changes effected by Senate Bill No. 1437. “Senate Bill [No.] 1437
was enacted 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).)” (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
Section 1170.95, subdivision (c) provides, in plain language,
that 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.” The statute thus
contemplates an initial eligibility determination by the court.
Where the record of conviction precludes any reasonable factual
dispute over defendant’s ineligibility for relief, it would be a
waste of judicial resources to require appointment of counsel and
briefing.

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Several courts have similarly interpreted the statutory
language and have concluded that a defendant seeking
resentencing is entitled to appointment of counsel only after
demonstrating a prima facie case. (See, e.g., People v. Tarkington
(2020) 49 Cal.App.5th 892, 899–900, review granted Aug. 12,
2020, S263219; People v. Verdugo (2020) 44 Cal.App.5th 320,
328–332, review granted Mar. 18, 2020, S260493; People v.
Cornelius, supra, 44 Cal.App.5th at p. 58, review granted Mar.
18, 2020, S260410; People v. Lewis, supra, 43 Cal.App.5th at
pp. 1139–1140, review granted Mar. 18, 2020, S260598.) We
adopt the persuasive analyses in these decisions.
Section 1170.95, subdivision (a) provides that only persons
“convicted of felony murder or murder under a natural and
probable consequences theory” may file a petition seeking
resentencing. Appellant was not convicted on a theory of felony
murder or under the natural and probable consequences doctrine.
As we discuss, evidence at the preliminary hearing, which
occurred before appellant entered his plea, shows that appellant
directly aided and abetted co-defendant Mancera; there can be no
doubt that was the prosecution’s theory of the case. Thus,
appellant is ineligible for relief as a matter of law. Accordingly,
he was not entitled to appointment of counsel, which, we hold, is
mandatory only after the court has determined that a prima facie
showing has been or can be made.
Appellant also contends denial of appointment of counsel
violates his federal and state constitutional rights. We are not
persuaded. A sentence modification is not a criminal trial; it is
an act of lenity. (See Dillon v. United States (2010) 560 U.S. 817,
826–828 [no Sixth Amendment right to a jury trial in statutory
proceeding to modify a sentence because the statute constituted

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an act of lenity].) When a state need not provide a given right
under the federal constitution, “it follows that the erroneous
denial of that right does not implicate the federal Constitution.”
(People v. Epps (2001) 25 Cal.4th 19, 29.) Here we find section
1170.95 is an act of lenity. If the trial court acted erroneously in
declining to appoint counsel, that error does not constitute a
violation of appellant’s constitutional rights.
DISPOSITION
The order denying the resentencing petition is affirmed.
CERTIFIED FOR PUBLICATION
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.

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