P. v. Guzman

Filed 8/3/20 P. v. Guzman CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
RAUL GUZMAN,
Defendant and Appellant.
B297087
(Los Angeles County
Super. Ct. No. BA040676)
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Kathleen Kennedy, Judge. Affirmed.
Adrian K. Panton, 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, Senior
Assistant Attorney General, Charles S. Lee and Kristen J.
Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________

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Raul Guzman appeals the summary denial of his petition
for resentencing under Penal Code1 section 1170.95. Appellant
contends the superior court erred in denying the petition without
first honoring his request for appointment of counsel. We
disagree and affirm.
PROCEDURAL BACKGROUND2
A jury convicted appellant of second degree murder on
January 29, 1993. He was sentenced to state prison for 15 years
to life with the possibility of parole plus a five-year enhancement
for the personal use of a firearm under section 12022.5.
On January 31, 2019, appellant filed a petition for
resentencing under section 1170.95, alleging that he had been
convicted of first or second degree murder pursuant to the felony-
murder rule or the natural and probable consequences doctrine,
and could not be convicted of murder because of the changes to
sections 188 and 189 by Senate Bill No. 1437. The petition
further alleged that appellant was “convicted of 2nd degree
murder under the natural and probable consequences doctrine or
under the 2nd degree felony murder doctrine,” but could not now
be convicted of murder due to changes to section 188. Appellant
also checked the boxes on the form stating that he was not the
actual killer, he did not aid and abet with intent to kill, and he
was neither a major participant nor acted with reckless
indifference to human life. Appellant’s petition included a
request that counsel be appointed to represent him.
On February 26, 2019, without appointing counsel and with
no appearance by appellant or the People, the superior court
1 Undesignated statutory references are to the Penal Code.
2 The appellate record does not contain a recitation of the
underlying facts of the offense.

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summarily denied the petition. In its order the court stated:
“[P]etitioner is not entitled to relief as a matter of law” because
he “was convicted of murder but the court file reflects that the
petitioner was the actual killer and was not convicted under a
theory of felony-murder of any degree, or a theory of natural and
probable consequences. There are no jury instructions for aiding
and abetting, felony murder, or natural and probable
consequences.”
On March 27, 2019, the superior court issued a revised
memorandum of decision in response to a letter from appellant.
Again, the superior court denied the petition without appointing
counsel, ruling that he was not entitled to relief as a matter of
law. The court added the following information to its previous
order:
“A review of the trial transcript confirms that the jury was
not instructed on the natural and probable consequences theory
of aiding and abetting a first degree murder. The trial judge
during jury selection explained briefly the concepts of aiding and
abetting and natural and probable consequences to the venire in
a general fashion. Ultimately, however, the jury was not
instructed on that theory, nor did the prosecutor rely upon the
natural and probable consequences doctrine in her final
argument. The jury found that each of the three defendants in
this case shot at the victim and that each was guilty of first
degree murder as either being the actual killer or an aider and
abettor to the actual crime of first degree murder. The evidence
presented revealed that [the] victim sustained numerous gunshot
wounds while being shot simultaneously by the three defendants.
Apparently, the specific wound that proved to be fatal was a
shotgun blast that was apparently fired by a codefendant,
however, clearly the jury was satisfied that this defendant was

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an aider and abettor of the charged crime. He is not entitled to
relief.”
DISCUSSION
I. The Superior Court’s Summary Denial of
Appellant’s Petition Was Proper
A. Senate Bill No. 1437 and section 1170.95
The Legislature enacted Senate Bill No. 1437 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).)
To accomplish this objective, Senate Bill No. 1437 amended
section 188, defining malice, and section 189, which classifies
murder into two degrees and lists the predicate felonies for the
crime of first degree felony murder.3 (Stats. 2018, ch. 1015, §§ 2,
3; People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
Senate Bill No. 1437 and its amendment to section 188
“significantly restricted potential aider and abettor liability, as
3 The amendments to section 189 included the new
requirement that a participant in a specified felony during which
a death occurs may be convicted of murder for that death “only if
one of the following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] [or] (3) The person
was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.” (§ 189, subd. (e)(1)–(3).)

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well as coconspirator liability, for murder under the natural and
probable consequences doctrine, effectively overruling [People v.]
Chiu [(2014) 59 Cal.4th 155 (Chiu)] insofar as it upheld second
degree murder convictions based on that theory. Now, rather
than an objective, reasonable foreseeability standard, as
discussed in [People v.] Prettyman [(1996) 14 Cal.4th 248] and
Chiu, pursuant to new section 188, subdivision (a)(3), to be guilty
of murder other than as specified in section 189, subdivision (e),
concerning felony murder, the subjective mens rea of ‘malice
aforethought’ must be proved: ‘[T]o be convicted of murder, a
principal in a crime shall act with malice aforethought.’ (See also
Sen. Bill 1437 (Stats. 2018, ch. 1015, § 1, subd. (g) [‘[a] person’s
culpability for murder must be premised upon that person’s own
actions and subjective mens rea’].) And that required element of
malice ‘shall not be imputed to a person based solely on his or her
participation in a crime.’ (§ 188, subd. (a)(3).)” (People v. Lopez
(2019) 38 Cal.App.5th 1087, 1103, review granted Nov. 13, 2019,
S258175; People v. Lewis (2020) 43 Cal.App.5th 1128, 1135,
review granted Mar. 18, 2020, S260598 (Lewis).) However, as
Lewis observed, while the amendment to section 188 effectively
eliminated use of the natural and probable consequences doctrine
to support a murder conviction, the change did not “alter the law
regarding the criminal liability of direct aiders and abettors of
murder because such persons necessarily ‘know and share the
murderous intent of the actual perpetrator.’ (People v. McCoy
(2001) 25 Cal.4th 1111, 1118; see Chiu, supra, 59 Cal.4th at
p. 167 [a direct aider and abettor ‘acts with the mens rea required
for first degree murder’].)” (Lewis, supra, 43 Cal.App.5th at
p. 1135, rev.gr.)
In addition to these amendments, Senate Bill No. 1437 also
added section 1170.95 to provide a procedure by which those
convicted of felony murder or murder under a natural and

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probable consequences theory can seek retroactive relief if they
could no longer be convicted of murder because of the changes in
sections 188 or 189. (People v. Martinez, supra, 31 Cal.App.5th at
pp. 722–723.) A petition under section 1170.95 must include the
following allegations:
“(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 Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a)(1)–(3).)
In addition, the petition must include a declaration of
eligibility based on the requirements of subdivision (a), the year
of conviction and the superior court case number, and whether
the petitioner requests appointment of counsel. (§ 1170.95, subd.
(b)(1).) Subdivision (b)(2) provides that “[i]f any of the
information required by this subdivision is missing from the
petition and cannot be readily ascertained by the court, the court
may deny the petition without prejudice to the filing of another
petition and advise the petitioner that the matter cannot be
considered without the missing information.”
B. Appellant failed to make a prima facie showing that
he falls within the provisions of the new law as required
under subdivision (c) of section 1170.95
Appellant contends the superior court erred in summarily
denying his petition without honoring his request for
appointment of counsel. But appellant’s argument ignores the

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superior court’s initial duty under section 1170.95,
subdivision (c)⎯before it must appoint counsel⎯to “review the
petition and determine if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this
section.” Because appellant did not satisfy the first prima facie
showing requirement of subdivision (c), the superior court did not
err in failing to appoint counsel.
Section 1170.95, subdivision (c) prescribes the superior
court’s responsibilities upon the filing of a complete 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. 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.” (§ 1170.95, subd. (c).)
In interpreting section 1170.95, we must give meaning to
all parts of the statute to the extent possible. (People v. Shabazz
(2006) 38 Cal.4th 55, 67 [“ ‘The meaning of a statute may not be
determined from a single word or sentence; the words must be
construed in context, and provisions relating to the same subject
matter must be harmonized to the extent possible’ ”]; People v.
Verdugo (2020) 44 Cal.App.5th 320, 329, review granted Mar. 18,
2020, S260493 (Verdugo).) “[T]he language used in a statute or
constitutional provision should be given its ordinary meaning,
and ‘[i]f the language is clear and unambiguous there is no need
for construction, nor is it necessary to resort to indicia of the
intent of the Legislature . . . .’ [Citation.] To that end, we

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generally must ‘accord[] significance, if possible, to every word,
phrase and sentence in pursuance of the legislative purpose,’ and
have warned that ‘[a] construction making some words
surplusage is to be avoided.’ ” (People v. Valencia (2017) 3
Cal.5th 347, 357; People v. Abrahamian (2020) 45 Cal.App.5th
314, 332.)
It is clear from the language of section 1170.95,
subdivision (c) that the superior court conducts two separate
reviews of a facially sufficient petition before an order to show
cause may issue: The first review is “made before any briefing to
determine whether the petitioner has made a prima facie
showing he or she falls within section 1170.95—that is, that the
petitioner may be eligible for relief—and a second after briefing
by both sides to determine whether the petitioner has made a
prima facie showing he or she is entitled to relief.” (Verdugo,
supra, 44 Cal.App.5th at p. 328, rev.gr.)
Appellant, however, ignores the first step prescribed by
subdivision (c), arguing that the superior court must appoint
counsel if requested. Numerous courts have rejected appellant’s
position. (Lewis, supra, 43 Cal.App.5th at pp. 1137–1140, rev.gr.;
People v. Tarkington (2020) 49 Cal.App.5th 892, 897–899
(Tarkington); People v. Offley (2020) 48 Cal.App.5th 588, 596–
597; People v. Edwards (2020) 48 Cal.App.5th 666, 673–675,
review granted July 8, 2020, S262481; People v. Law (2020) 48
Cal.App.5th 811, 820–821, review granted July 8, 2020, S262490;
People v. Torres (2020) 46 Cal.App.5th 1168, 1173, 1178, review
granted June 24, 2020, S262011; People v. Cornelius (2020) 44
Cal.App.5th 54, 57–58, review granted Mar. 18, 2020, S260410;
Verdugo, supra, 44 Cal.App.5th at pp. 332–333, rev.gr.)
The issue of whether a superior court may consider the
record of conviction in determining whether a petitioner has
made a prima facie showing of eligibility for relief under section

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1170.95 is currently under review by the California Supreme
Court. (<https://appellatecases.courtinfo.ca.gov/search/case/
mainCaseScreen.cfm?dist=0&doc_id=2311967&doc_no=S260598
&request_token=NiIwLSEmXkw5W1BBSCMtSEJJUEw0UDxTJ
SJeUzNRMCAgCg%3D%3D> [as of July 7, 2020], archived at
<https://perma.cc/RV72-6SDZ>.) Pending further guidance from
our Supreme Court, we agree with these courts’ conclusions that
section 1170.95, subdivision (c) permits the superior court to
review the record of conviction as well as the averments of the
petition, and to summarily deny the petition without the
appointment of counsel where this initial review reveals that the
petitioner is ineligible for relief as a matter of law.
“ ‘A prima facie showing is one that is sufficient to support
the position of the party in question.’ ” (Lewis, supra, 43
Cal.App.5th at p. 1137, rev.gr., quoting Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 851.) In the initial prima
facie review required by section 1170.95, subdivision (c), the
superior court must determine the petitioner’s “statutory
eligibility for resentencing, a concept that is a well-established
part of the resentencing process under Propositions 36 and 47.
[Citations.] The court’s role at this stage is simply to decide
whether the petitioner is ineligible for relief as a matter of law,
making all factual inferences in favor of the petitioner.”
(Verdugo, supra, 44 Cal.App.5th at p. 329, rev.gr.) In the context
of Propositions 36 and 47, as well as in habeas corpus
proceedings, this initial review does not require blind acceptance
of the allegations contained in the petition, but permits the court
to examine the record of conviction to determine if a prima facie
basis for relief exists. (Lewis, at pp. 1137–1138 [court’s initial
review of petition for resentencing under Prop. 36 and Prop. 47 to
determine if petition establishes prima facie case for eligibility
includes examination of the record of conviction]; see also People

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v. Page (2017) 3 Cal.5th 1175, 1188–1189 [Prop. 47]; Teal v.
Superior Court (2014) 60 Cal.4th 595, 600 [Prop. 36].)
“ ‘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 show as a matter of law that the petitioner is not
eligible for relief. For example, if the petition contains sufficient
summary allegations that would entitle the petitioner to relief,
but a review of the court file shows the petitioner was convicted
of murder without instruction or argument based on the felony
murder rule or [the natural and probable consequences doctrine],
. . . it would be entirely appropriate to summarily deny the
petition based on petitioner’s failure to establish even a prima
facie basis of eligibility for resentencing.’ ” (Lewis, supra, 43
Cal.App.5th at p. 1138, rev.gr.)
So it is in the case at bar. The record here as augmented
on appeal4 shows that appellant was convicted of second degree
murder with a finding by the jury that he personally used a
firearm in the commission of the offense, and there was no
4 Appellant attached the following documents from the
archived trial record to his motion to augment the record on
appeal: the minute order of the jury’s verdict declaring appellant
guilty of second degree murder and finding that he personally
used a firearm in the commission of the murder (§ 12022.5), the
abstract of judgment, and four jury instructions given to
appellant’s jury⎯CALJIC No. 8.10 defining murder, CALJIC No.
8.30 defining unpremeditated murder of the second degree,
CALJIC 8.70 instructing the jury to find the degree of murder,
and CALJIC 8.74 requiring a unanimous verdict. Appellant does
not claim that additional relevant documents or instructions exist
that he was unable to obtain.

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instruction on the natural and probable consequences doctrine or
felony murder. Not only an actual killer, but also a direct aider
and abettor may be convicted of murder notwithstanding the
amendments to sections 188 and 189, which changed nothing
with regard to direct aider and abettor liability. “One who
directly aids and abets another who commits murder is thus
liable for murder under the new law just as he or she was liable
under the old law.” (Lewis, supra, 43 Cal.App.5th at p. 1135,
rev.gr.) Accordingly, appellant was required to make a prima
facie showing that he was not convicted as the actual killer or a
direct aider and abettor, and thereby “ ‘falls within the provisions
of’ the statute.” (Lewis, at p. 1137; § 1170.95, subds. (a)(3) & (c).)
He failed to do so. (See People v. Whalen (2013) 56 Cal.4th 1, 85
[appellant’s burden includes presenting an adequate record for
review and affirmatively demonstrating error]; People v. Garza
(2005) 35 Cal.4th 866, 881 [“on appeal a judgment is presumed
correct, and a party attacking the judgment . . . must
affirmatively demonstrate prejudicial error”].) The superior court
therefore properly denied the petition on the basis of its finding
that appellant was not entitled to relief as a matter of law
because he was not convicted under a theory of felony murder or
natural and probable consequences, the two theories affected by
Senate Bill No. 1437.
Appellant claims that the superior court’s failure to note
that his codefendant was convicted of first degree murder while
he was convicted of “the lesser offense of second degree murder”
“does not inspire confidence that appellant in fact was the actual
killer.” The assertion lacks merit. The superior court did, in fact,
note that appellant’s codefendants were found guilty of first
degree murder, and that even though the fatal wound was
inflicted by a codefendant’s gunshot, all three defendants
simultaneously shot the victim multiple times, and each was

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guilty of murder as the actual killer or a direct aider and abettor.
The court concluded that appellant is not entitled to relief
because “clearly the jury was satisfied that [appellant] was an
aider and abettor of the charged crime.”
It is also irrelevant that appellant was convicted of second
degree rather than first degree murder: A conviction of second
degree murder simply means that the murder was not willful,
deliberate, and premediated, it was not perpetrated by means of
an explosive device, weapon of mass destruction, by use of
ammunition designed to penetrate armor, poison, lying in wait,
or torture, it was not committed in the perpetration of a
qualifying felony, and the murder was not committed by
intentionally firing a gun from a vehicle with the intent to cause
the death of a person outside the vehicle.5 A conviction of second
degree murder plainly does not mean the defendant was not the
actual killer or a direct aider and abettor.
In sum, the allegations in the petition that appellant “could
not now be convicted of 1st or 2nd degree murder because of
5 As relevant to first and second degree murder, section 189
provides: “(a) All murder that is perpetrated by means of a
destructive device or explosive, a weapon of mass destruction,
knowing use of ammunition designed primarily to penetrate
metal or armor, poison, lying in wait, torture, or by any other
kind of willful, deliberate, and premeditated killing, or that is
committed in the perpetration of, or attempt to perpetrate, arson,
rape, carjacking, robbery, burglary, mayhem, kidnapping, train
wrecking, or any act punishable under Section 206, 286, 287, 288,
or 289, or former Section 288a, or murder that is perpetrated by
means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the
intent to inflict death, is murder of the first degree.
“(b) All other kinds of murders are of the second degree.”

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changes made to Penal Code §§ 188 and 189” but was
nevertheless “convicted of 2nd degree felony murder under the
natural and probable consequences doctrine or under the 2nd
degree felony murder doctrine” are contradicted by the record of
conviction. Because the record of conviction plainly shows that
appellant does not fall within the provisions of the statute, he did
not make the first prima facie showing required under section
1170.95, subdivision (c). Appellant is thus ineligible for relief as
a matter of law, and the superior court properly denied his
petition without first appointing counsel. (§ 1170.95, subd. (c);
Verdugo, supra, 44 Cal.App.5th at p. 329, rev.gr.)
II. Appellant Was Not Entitled to Appointed
Counsel
Despite his failure to meet his obligation to make a prima
facie showing of eligibility for relief, appellant nevertheless
maintains the superior court should have appointed counsel and
proceeded to the next stages of review under section 1170.95,
subdivision (c).
We reject the assertion on the basis of the Lewis6 court’s
reasoning, which we adopt: “The provision for the appointment of
counsel is set forth in the second sentence of section 1170.95,
subdivision (c), and does not, when viewed in isolation, indicate
when that duty arises. When interpreting statutory language,
however, we do not ‘ “examine that language in isolation, but in
6 The question of when the right to appointed counsel
arises under section 1170.95, subdivision (c) is also pending
before the California Supreme Court. (<https://appellatecases.
courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=
2311967&doc_no=S260598&request_token=NiIwLSEmXkw5W1
BBSCMtSEJJUEw0UDxTJSJeUzNRMCAgCg%3D%3D> [as of
July 7, 2020], archived at <https://perma.cc/RV72-6SDZ>.)

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the context of the statutory framework as a whole.” ’ [Citation.]
When the statutory framework is, overall, chronological, courts
will construe the timing of particular acts in relation to other acts
according to their location within the statute; that is, actions
described in the statute occur in the order they appear in the
text.” (Lewis, supra, 43 Cal.App.5th at pp. 1139–1140, rev.gr.)
Thus, “the requirement to appoint counsel as arising in
accordance with the sequence of actions described in section
1170.95 subdivision (c); that is, after the court determines that
the petitioner has made [the first] prima facie showing that
petitioner ‘falls within the provisions’ of the statute, and before
the submission of written briefs and the court’s determination
whether petitioner has made ‘a prima facie showing that he or
she is entitled to relief.’ ” (Id. at p. 1140; Tarkington, supra, 49
Cal.App.5th at pp. 900–901.)
We also reject appellant’s claim that the dismissal of his
petition without the appointment of counsel violated his federal
constitutional rights to counsel and due process under the Sixth
and Fourteenth Amendments.
The United States Supreme Court has declared that the
Sixth Amendment “right to appointed counsel extends to the first
appeal of right, and no further.” (Pennsylvania v. Finley (1987)
481 U.S. 551, 555.) In this regard, the high court has explained
that a petition seeking postconviction relief by an imprisoned
defendant constitutes “a collateral attack that normally occurs
only after the defendant has failed to secure relief through direct
review of his conviction. States have no obligation to provide this
avenue of relief, [citation], and when they do, the fundamental
fairness mandated by the Due Process Clause does not require
that the State supply a lawyer as well.” (Id. at p. 557; In re
Barnett (2003) 31 Cal.4th 466, 474.) Likewise, the California
constitution confers no unconditional constitutional right to

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counsel to mount a collateral attack on a judgment of conviction,
and the rules for postconviction relief⎯whether by petition for
writ of habeas corpus or coram nobis⎯require the petition to first
make a prima facie showing of entitlement to relief before the
court issues an order to show cause and appoints counsel. (In re
Barnett, at p. 475 [habeas corpus]; People v. Shipman (1965) 62
Cal.2d 226, 232–233 [coram nobis]; People v. Fryhaat (2019) 35
Cal.App.5th 969, 982; People v. Rodriguez (2019) 38 Cal.App.5th
971, 982.)
Appellant did not make a prima facie showing that he came
within the provisions of section 1170.95, which would have
triggered a statutory right to counsel. (§ 1170.95, subd. (c).) In
the absence of the requisite prima facie showing that appellant
was entitled to relief, the superior court was not required to
appoint counsel, order briefing, issue an order to show cause, or
schedule a hearing. (See § 1170.95, subds. (c), (d)(1).)

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DISPOSITION
The postjudgment order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.

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