P. v. Magana

Filed 6/2/20 P. v. Magana 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.
JOSE MAGANA,
Defendant and Appellant.
B297514
(Los Angeles County
Super. Ct. No. BA129512)
APPEAL from an order of the Superior Court of
Los Angeles County. Michael E. Pastor, Judge. Affirmed.
James Koester, 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, Amanda V. Lopez and Stacy S. Schwartz,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________

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In 1996, defendant and appellant Jose Magana was
convicted of second degree murder. (Pen. Code, § 187.)1 He was
sentenced to 16 years to life in state prison. Defendant appealed
his conviction, and on October 29, 1997, we affirmed the
judgment. (People v. Magana (Oct. 29, 1997, B106669) [nonpub.
opn.], pp. 1, 4 (Magana I).)
On September 30, 2018, the Governor signed Senate Bill
No. 1437 (2018 Reg. Sess.) (S.B. 1437) in order 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).) As is relevant to the
issues raised in this appeal, prior to the passage of S.B. 1437, the
malice element of murder could be satisfied by imputation. S.B.
1437 changed that by amending section 188 to provide that
malice could no longer be proven by imputation. S.B. 1437 also
added section 1170.95, which created a procedure whereby a
person whose felony murder conviction was final, but who could
not have been convicted under the amended statutes, could
petition to have the conviction vacated. (§ 1170.95, subd. (a).)
S.B. 1437 went into effect on January 1, 2019. (See Stats.
2018, ch. 1015, § 4.)
On January 31, 2019, defendant filed a petition for
resentencing under section 1170.95. The trial court summarily
denied his petition.
Defendant timely filed a notice of appeal. He argues that
the trial court erred when it summarily denied his petition
1 All further statutory references are to the Penal Code
unless otherwise indicated.

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because the record does not affirmatively show that he is not
eligible for section 1170.95 relief.
We are not convinced by defendant’s argument; the record
of conviction shows that defendant is ineligible for relief as a
matter of law. Accordingly, we affirm the trial court’s order
summarily denying defendant’s section 1170.95 petition.
FACTUAL BACKGROUND
“On June 25, 1995, Miguel Garcia dropped Alex Campos off
at Alex’s house, and rode his bicycle to his house two blocks away
to get a sweater. Alex’s house was in a territory claimed by the
Primera Flats street gang. Alex’s brother, Julio Campos, was
outside the house when Alex arrived home. Alex went across the
street with his friends, and Julio went inside the house. Alex’s
sister Juana was on her way home from a friend’s house when
she saw Alex approach a black car that had just passed her.
Miguel returned to the house at that time, and the black car
passed him. He noticed that the car pulled up by Alex. Miguel
saw that the driver was an overweight, bald, Hispanic man. The
passenger asked Alex, ‘Where are you from?’ Alex answered, and
the passenger took a gun out and shot him. Alex instinctively
raised his hands, and tried to run. Alex fell to the ground, and
the passenger continued to shoot him. The firing stopped and the
vehicle sped away. Alex was mortally wounded. Juana Campos
and Veronica Gudino also witnessed the shooting. Veronica
covered Alex after the shooting, felt for a pulse, and told people to
call the police.
“Miguel and Juana identified the shooter as Miguel Funes
[(Funes)]. Juana identified [defendant] as the driver.
“Police officers interviewed [defendant], who stated that on
June 25, 1995, he was with a couple of friends, including Miguel
Funes. Someone asked [defendant] to get the neighborhood gun.
He went into his house and retrieved it. Funes took possession of

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the gun and they decided to drive around. They saw someone on
a bicycle, and approached him and another young man standing
near him. They asked the man without the bicycle where he was
from, and when he replied he was from Primera Flats, Funes shot
him approximately six times. They drove away, and [defendant]
dropped off Funes at home. [Defendant] stated that he did not
know Funes was going to shoot anybody.
“Officer Daniel Jaramillo testified that the Al Capone gang
occupied a small area within the housing projects and was
surrounded by the Primera Flats street gang, which began
infringing on the Al Capone territory in the 1990’s. The rivalry
between the two gangs resulted in physical altercations and
shootings. Jaramillo testified that he had witnessed Al Capone
gang members commit a drive-by shooting of a Primera Flats
gang member. He also investigated a second shooting of a
Primera Flats gang member by an Al Capone gang member. He
testified that when a gang member asks, ‘Where are you from?’
he is issuing a challenge. The answer could result in no incident,
an altercation, or a shooting. Officer Jaramillo came into contact
with [defendant] in 1993, when he claimed to be a member of the
Al Capone gang.
“Julio was able to identify the vehicle used in the shooting.
At trial, Julio testified that a few weeks prior to his brother’s
murder, the same vehicle had approached him while he was
riding his bicycle. After asking him where he was from, the
occupant tried to shoot him with a shotgun, but the gun did not
go off.
“[Defendant] testified that he belonged to the Al Capone
gang for seven or eight years previous to the shooting. A few
days before the shooting, Funes came to [defendant’s] house and
asked him to keep a gun for him. On June 25, 1995, Funes
visited [defendant], asked for the gun, and asked for a ride.

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When [defendant] gave the gun to Funes, it was unloaded. Even
though at trial he stated that he was concerned that Funes had a
gun in his car, he did not protest when Funes wanted to cruise in
his car with a gun. Indeed, he stated he wanted to be part of the
gang, and allowed people to ride in his car who he knew were
carrying guns. He also testified that he was aware that his gang
committed drive-bys and shot people. He knew that there was a
war going on between the Al Capone gang and Primera Flats
gang, and that Al Capone gang members had shot or tried to
shoot members of Primera Flats gang. [Defendant] and Funes
were cruising when they saw Alex and Miguel. [Defendant]
stopped the car near them. Funes asked Alex where he was from,
and when Alex answered ‘Flats,’ he shot him. [Defendant]
testified that he was not aware that Funes was going to shoot.
However, he waited until Funes was finished shooting, then sped
away from the scene and drove Funes home.” (Magana I, supra,
B106669, at pp. 2–4.)
DISCUSSION
Defendant contends that the trial court improperly denied
his petition for resentencing without appointing counsel or
requiring a response from the prosecutor. According to
defendant, his petition was not facially insufficient because there
was no conclusive evidence that, even as an aider and abettor, he
personally held the requisite malice aforethought.
A. Relevant proceedings
On January 4, 2019, defendant filed a section 1170.95
petition, which the trial court denied partly on the grounds that
defendant had failed to check a box indicating that he had been
prosecuted under a theory of felony murder or murder under the
natural and probable consequences doctrine.
On January 31, 2019, defendant filed a second section
1170.95 petition, alleging that an information had been filed

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against him that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine; that he had been convicted of
first or second degree murder pursuant to the felony murder rule
or the natural and probable consequences doctrine; that he could
not now be convicted of first or second degree murder because of
changes made to section 188; and that he was not the actual
killer.
In response to defendant’s second section 1170.95 petition,
the trial court stated: “The Court denied the 1st Petition based
in part upon [defendant’s] structural failure to check box 1. [¶]
However, the Court denied the 1st Petition and denies this 2nd
Petition because [defendant’s] claims in checked boxes 2a and 3 of
both the 1st and 2nd Petitions are not borne out by the jury
instructions. As stated in this Court’s original ruling, despite
[defendant’s] assertions, ‘[i]t does not appear as though the jury
was ever instructed as to any felony-murder doctrine or the
natural and probable consequences doctrine. The jury was
instructed only as to the malice-murder doctrine, and [defendant]
was convicted of murder based only upon that doctrine.
Therefore, he is not eligible for re-sentencing pursuant to any
changes in . . . sections 188 and 189.”
B. Relevant law
As set forth above, S.B. 1437 amended the felony murder
rule and the natural and probable consequences doctrine 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. (People v. Martinez (2019) 31
Cal.App.5th 719, 723.) S.B. 1437 amended section 188 by adding
a requirement that all principals to murder must act with
express or implied malice to be convicted of that crime; malice

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can no longer be proven by imputation. It amended section 189
by adding a requirement to the felony murder theory that a
defendant who was not the actual killer or a direct aider and
abettor must have been a major participant in the underlying
felony and acted with reckless indifference to human life. (S.B.
1437, §§ 2 & 3.) S.B. 1437 also added section 1170.95, which
established the procedure for defendants already convicted of
murder under the old law to seek resentencing if they could not
be convicted of that crime under the new laws.
In order to obtain S.B. 1437 resentencing relief, the
petitioner must proceed sequentially through the section
1170.95’s separate steps. (People v. Lewis (2020) 43 Cal.App.5th
1128, 1140, review granted Mar. 18, 2020, S260598; see also KB
Home Greater Los Angeles, Inc. v. Superior Court (2014) 223
Cal.App.4th 1471, 1477 [sequential structure of a statutory
scheme supports interpretation that acts required by the statutes
occur in the same sequence].) First, a defendant must file a
facially sufficient section 1170.95 petition. The petitioner must
aver that (1) an accusatory pleading was filed against him
allowing the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; (2) he was convicted of first or second degree murder;
and (3) he could not be convicted of murder as a result of the
recent amendments to sections 188 and 189.
If a petition lacks any of this information, it may be denied
without prejudice. (§ 1170.95, subd. (b)(2).) However, if the
petition is facially sufficient, the petitioner is entitled to the
appointment of counsel. (§ 1170.95, subd. (c); People v. Lewis,
supra, at pp. 1139–1140; People v. Verdugo (2020) 44 Cal.App.5th
320, 331–332, review granted Mar. 18, 2020, S260493.)
In other words, the trial court must immediately review the
petition and, if the petitioner is ineligible for resentencing as a

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matter of law because of some disqualifying factor, the trial court
must dismiss or deny the petition. (See People v. Verdugo, supra,
44 Cal.App.5th at pp. 328–333; People v. Cornelius (2020) 44
Cal.App.5th 54, 57–58, review granted Mar. 18, 2020, S260410;
People v. Lewis, supra, 43 Cal.App.5th at p. 1140.) Disqualifying
factors, or factors indicating ineligibility, include, for example, a
petitioner who admitted to being the actual killer (People v.
Verdugo, supra, at pp. 329–330) or a petitioner that the jury
found was the actual killer (People v. Cornelius, supra, at p. 58).
(See also People v. Lewis, supra, at pp. 1138, 1140.)
In deciding whether a petitioner is ineligible for
resentencing, a trial court may consider its own file and record of
conviction. (People v. Lewis, supra, 43 Cal.App.5th at p. 1138; see
also AOB 16 [“it appears the court was entitled to review the
court file and make some preliminary determinations regarding
appellant’s threshold eligibility for relief”].) “The record of
conviction includes a reviewing court’s opinion. [Citations.]”
(People v. Lewis, at p. 1136, fn. 7.)
C. Analysis
Applying these legal principles, we conclude that the trial
court correctly held that defendant failed to establish the first
step of the prima facie test under section 1170.95, subdivision (c).
Defendant was convicted on the principle of direct aiding and
abetting, which requires proof of an intent to kill, rather than the
natural and probable consequences theory or the felony murder
rule. After all, the jury was instructed only on the malice murder
doctrine and aider and abettor liability. The jury was not
instructed on either natural and probable consequences or felony
murder.
It follows that defendant was ineligible for resentencing
under S.B. 1437 as a matter of law, and the trial court rightly
denied his petition. (People v. Lewis, supra, 43 Cal.App.5th at

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p. 1137 [“one can be convicted of murder even after the
amendments if he . . . directly aided and abetted the perpetrator
of the murder”].)
Urging us to reverse, defendant argues that the trial court
erred in denying his petition before appointing counsel to
represent him. We are not convinced. Rather, we agree with our
colleagues in Divisions One and Six, who reasoned that the trial
court is not required to appoint counsel when the defendant has
not set forth the threshold eligibility for relief. (See People v.
Cornelius, supra, 44 Cal.App.5th at p. 58; People v. Lewis, supra,
43 Cal.App.5th at p. 1137.)
For the same reasons, we reject defendant’s suggestion that
the trial court should not only have immediately appointed
defendant counsel, but also should have ordered the prosecutor to
file a response to defendant’s petition. Defendant did not make
the initial threshold showing; he therefore has not demonstrated
reversible error for the trial court’s decision not to “order the
prosecutor to file a response” to his petition.
Relying upon People v. McCoy (2001) 25 Cal.4th 1111, 1122,
People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164–1165,
and People v. Nero (2010) 181 Cal.App.4th 504, 518 (Nero),
defendant contends that there was not a “conclusive finding” that
he acted with a “personally held malice aforethought mens rea.”
In support, he relies upon the trial court’s use of CALJIC
No. 3.00.2 According to defendant, because the jurors were
instructed with then CALJIC No. 3.00, which contains the
misleading phrase “equally guilty,” they could have found
2 That instruction provided: “The persons concerned in the
[commission] of a crime who are regarded by law as principals in
the crime thus [committed] and equally guilty therefore include:
[¶] 1. Those who directly and actively [commit] the act
constituting the crime, or [¶] 2. Those who aid and abet the
[commission] of the crime.”

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defendant guilty of murder based only upon the direct
perpetrator’s malice, rather than his own.
We are not convinced. In Magana I, when we set forth our
reasons explaining why the trial court’s failure to instruct the
jury on an accessory after the fact charge was harmless error, we
stated: “The jury was instructed as to the requirement of intent
in the aiding and abetting instruction, as well as intent for
second degree murder. The jury was informed that [defendant]
was not guilty of second degree murder if he had no prior
knowledge that Funes was going to murder anyone. Accordingly,
the jury rejected [defendant’s] theory that he did not know or
intend for Funes to commit murder.” (Magana I, supra, B106669,
at pp. 5–6.) In other words, we held that the jury rejected
defendant’s theory of the case and found that he had prior
knowledge that the actual perpetrator of the murder was going to
kill someone. (Magana I, supra, B106669, at p. 6.) Because
defendant gave Funes a gun and drove around with him in a rival
gang territory in the midst of a gang war, and knew that Funes
was going to shoot someone, he shared Funes’s same murderous
intent. (People v. McCoy, supra, 25 Cal.4th at p. 1118.) That is
the law of the case. (City of West Hollywood v. Kihagi (2017) 16
Cal.App.5th 739, 749.) Thus, defendant’s section 1170.95 petition
does not pass prima facie muster.
It follows that while the phrase “equally guilty” in CALJIC
No. 3.00 might be misleading and confusing in certain cases
(Nero, supra, 181 Cal.App.4th at p. 518), there is no indication
that the jury here was confused and mistakenly convicted
defendant based upon the shooter’s, as opposed to his own,
malice. After all, the jury was also instructed with CALJIC
No. 3.01. (Magana I, supra, B106669, at p. 6.) Any potential
misdirection in CALJIC No. 3.00 was cured by CALJIC No. 3.01’s
clear requirement of what the jury must find in order to convict

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defendant as an aider and abettor. (People v. Amezcua & Flores
(2019) 6 Cal.5th 886, 917–919.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT

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