P. v. Orcasitas

Filed 7/1/20 P. v. Orcasitas CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOE TOMAS ORCASITAS,
Defendant and Appellant.
B298698
Los Angeles County
Super. Ct. No. MA004571
APPEAL from an order of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Affirmed.
Lenore De Vita, 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,
Acting Senior Assistant Attorney General, Idan Ivri and
Michael R. Johnsen, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________________

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Defendant and appellant Joe Tomas Orcasitas appeals
from the trial court’s denial of his petition for resentencing
under Penal Code section 1170.95.1 Orcasitas is not eligible
for resentencing because he was the actual killer of the two boys
who were stabbed to death. Accordingly, we affirm the court’s
order summarily denying Orcasitas’s petition.
FACTS AND PROCEDURAL BACKGROUND2
On the evening of May 29, 1992, Orcasitas was at a party
in Littlerock, California. Jose Angel Orona, David Scott, and
Daniel Kufeldt also were there. Scott and Kufeldt were 14 and
15 years old, respectively. After the boys left the party, someone
told Orona that Scott had stolen a ring that belonged to him.
(Orcasitas I.)
Orcasitas and Orona had someone drive them to a
campground where the boys were camping in a van. The men
found the van with the sleeping boys inside, got in, and drove it
to an isolated spot in the Antelope Valley. Orcasitas began
to punch Kufeldt. Orcasitas then stabbed Kufeldt 30 times.
Orcasitas dragged Kufeldt’s body out of the van. In the
meantime, Orona stabbed Scott as Scott huddled on the floor
of the van. Orcasitas then attacked Scott, then dragged his body
1 References to statutes are to the Penal Code.
2 We take the facts from our 1996 opinion affirming
Orcasitas’s conviction. (People v. Orcasitas (Apr. 11, 1996,
B087798) [nonpub. opn.] (Orcasitas I).) We previously granted
the Attorney General’s motion to take judicial notice of that
opinion. (Evid. Code, § 459; Cal. Rules of Court, rule 8.252(a).)
Our opinion is part of the record of conviction, as we discuss
below.

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out of the van to a spot near some bushes. Orcasitas cut both
boys’ throats “just in case,” then took their wallets. At some
point, Orcasitas stepped on Scott’s face and said, “I never liked
you anyways . . . .” (Orcasitas I.)
A jury convicted Orcasitas and Orona of two counts of first
degree murder and two counts of conspiracy to commit murder.
The jury found true allegations that the defendants personally
used deadly and dangerous weapons in the commission of the
murders. The jury also found true the special circumstance
allegations that Orcasitas and Orona committed multiple
murders and killed the victims while lying in wait. The trial
court—Judge Robert J. Perry—sentenced Orcasitas to two
consecutive terms of life without the possibility of parole, plus
two years for the knife use (one for each victim). (Orcasitas I.)
On April 11, 1996, we affirmed Orcasitas’s and Orona’s
convictions. (Orcasitas I.)
After Senate Bill No. 1437 (SB 1437) took effect, Orcasitas
filed on January 2, 2019 a petition for resentencing under
Penal Code section 1170.95. On a downloadable form prepared
by Re:Store Justice, a cosponsor of the legislation (see People v.
Verdugo (2020) 44 Cal.App.5th 320, 324 (Verdugo), review
granted Mar. 18, 2020, S260493), Orcasitas checked various
boxes, including all of the boxes under paragraph 5. One of
those boxes states, “I was not the actual killer.”
Even though Orcasitas mailed his petition to the
Los Angeles Superior Court downtown, it appears to have
been referred initially to the courthouse in Antelope Valley
(presumably because, according to the case number, the case
originated there). A minute order dated January 22, 2019, from
an Antelope Valley court states, “Pursuant to the request of the

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defendant, the court appoints the Office of the Public Defender
for the SB1437 (PC 1170.95(A)) petition. [¶] The court notes
a review date of March 18, 2019.” The minute order stated
that Orcasitas was neither present in court nor represented
by counsel, and that notice was provided to the Los Angeles
County Public Defender, the Los Angeles County District
Attorney, and Orcasitas.
On March 18, 2019, a deputy district attorney filed a
request for an extension of time to May 28 to file an informal
response to Orcasitas’s petition.
In the meantime, it appears the case made its way back
downtown. On March 25, 2019, the Antelope Valley court
transferred the case back to the downtown Los Angeles
courthouse.
On April 12, 2019, Judge Perry—the judge who had tried
the case—denied Orcasitas’s petition in a written order. Judge
Perry advanced and vacated the date of May 28. Judge Perry
summarized the facts of the case, citing our 1996 opinion
affirming Orcasitas’s conviction. The court denied Orcasitas’s
petition, stating he is “ineligible for sentencing relief under
Penal Code § 1170.95 because he was an actual killer. See
Penal Code § 189(e)(1).”3
3 The trial court also held—as a “second and independent
ground” for denying Orcasitas’s petition—that SB 1437 was
unconstitutional. On appeal, the Attorney General agrees with
Orcasitas that section 1170.95 is constitutional. (See People
v. Solis (2020) 46 Cal.App.5th 762; People v. Superior Court
(Gooden) (2019) 42 Cal.App.5th 270.) We agree as well.

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Orcasitas appealed4 and we appointed counsel to represent
him. In her opening brief, counsel contends that—by checking
the box stating he was not the actual killer—Orcasitas made out
a prima facie case for relief, and the trial court was required both
to appoint counsel for him and to conduct a “mandatory hearing.”
We disagree, and affirm the trial court’s order.
DISCUSSION
SB 1437 “ ‘amend[ed] 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 [was] not the actual killer . . . .’ ” (People v. Gutierrez-
Salazar (2019) 38 Cal.App.5th 411, 417, quoting Stats. 2018,
ch. 1015, § 1, subd. (f); Pen. Code, § 189, subd. (e)(1).) “[SB] 1437
also added section 1170.95 to the Penal Code, which permits an
individual convicted of felony murder or murder under a natural
and probable consequences theory to petition the sentencing
court to vacate the conviction and be resentenced on any
remaining counts if he or she could not have been convicted of
first or second degree murder because of [SB] 1437’s changes to
sections 188 and 189. (§ 1170.95, subd. (a).)” (Verdugo, supra,
44 Cal.App.5th at p. 326.)
The petition must be filed in the sentencing court. The
statute requires the judge who originally sentenced the petitioner
to handle the petition if he or she is available. (§ 1170.95,
4 The public defender’s office filed the notice of appeal on
Orcasitas’s behalf. Orcasitas attached to his notice of appeal
copies of a five-page letter he apparently sent to the trial court
after it denied his petition, a copy of his high school transcript,
and what appears to be parts of the reporter’s transcript from
Orcasitas’s trial in which the court and counsel discussed jury
instructions.

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subd. (b)(1).) “If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a two-step process
for the court to determine if an order to show cause should issue:
‘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 . . .
and the petitioner may file and serve a reply . . . . 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.’ ” (Verdugo,
supra, 44 Cal.App.5th at p. 327.)
As our colleagues in Division Seven have noted, “the court’s
role in conducting the first prima facie review of the petition . . .
must be something more than simply determining whether the
petition is facially sufficient.” (Verdugo, supra, 44 Cal.App.5th at
p. 328.) “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.” (Id. at p. 329.)
The statute “directs the court in considering the facial sufficiency
of the petition to access readily ascertainable information”—
“documents in the court file or otherwise part of the record of
conviction.” (Ibid.) Based on this threshold review, the court can
dismiss any petition filed by a person who is ineligible for relief
as a matter of law—for example, a person who the jury found had
personally used a deadly or dangerous weapon in the homicide
(and so was the actual killer). (Cf. id. at p. 330. See also People
v. Lewis (2020) 43 Cal.App.5th 1128 (Lewis), review granted
Mar. 18, 2020, S260598 [superior court can consider record

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of conviction in evaluating the petitioner’s initial prima facie
showing under § 1170.95, subd. (c)].)
Our colleagues in Divisions One, Five, and Seven all
have recognized that a court of appeal opinion, whether or
not published, is part of the appellant’s record of conviction.
(Verdugo, supra, 44 Cal.App.5th at p. 333; Lewis, supra,
43 Cal.App.5th at pp. 1137-1139; People v. Torres (2020)
46 Cal.App.5th 1168, 1173-1174, 1177-1178, review granted
June 24, 2020, S262011 [rejecting appellant’s “broad assertion
that a trial court may not summarily deny a petition on the basis
of the record of conviction” and summarizing the “facts of
[appellant’s] crime spree” “as recited in [the court of appeal’s]
unpublished opinion” affirming appellant’s conviction].) The
First District Court of Appeal also agrees a trial court may
summarily deny a section 1170.95 petition based on its review
of the record of conviction. (People v. Edwards (2020) 48
Cal.App.5th 666, 670-671, 674 [court considered jury instructions
and reporter’s transcript of prosecutor’s closing argument, which
appellant attached to his petition].) The leading treatise states,
“Nothing in the statute . . . precludes the court from conducting
its own review of other readily available information such as the
court’s file.” (Couzens et al., Sentencing Cal. Crimes (The Rutter
Group 2019) ¶ 23:51, p. 23-150 (Couzens).)
As Presiding Justice Perluss noted in Verdugo, “a
preliminary review of statutory eligibility for resentencing
[is] a well-established part of the resentencing process under
Propositions 36 and 47” and “[a] court of appeal opinion . . .
is part of the appellant’s record of conviction.” (Verdugo, supra,
44 Cal.App.5th at pp. 329, 333. See, e.g., People v. Page (2017)
3 Cal.5th 1175, 1189 [in Proposition 47 case court should be able

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to determine from record of conviction whether conviction was
based on taking or driving vehicle]; People v. Cruz (2017) 15
Cal.App.5th 1105, 1110 [“In ruling on a petition for resentencing
[under Proposition 36], the trial court may consider the entire
record of conviction including the transcript of the trial testimony
and the appellate opinion affirming the judgment of conviction.”];
People v. White (2014) 223 Cal.App.4th 512, 524-526 [in
Proposition 36 case, record of conviction established that
applicable resentencing eligibility criterion was not satisfied];
People v. Manning (2014) 226 Cal.App.4th 1133, 1141; Couzens,
supra, ¶ 23:51, p. 23-151. Cf. People v. Woodell (1998) 17
Cal.4th 448, 451 [jury entitled to consider appellate opinion
in determining whether defendant’s out-of-state conviction
was a strike; “[w]e conclude the record of the conviction is not
limited to the trial court record but extends to the appellate court
record, including the appellate opinion”].)
“Accordingly, it was proper for the superior court to
consider this court’s opinion in [Orcasitas I] which affirmed
[Orcasitas’s] convictions for conspiracy to commit murder and
first degree murder, in determining whether he had made a
prima facie showing of eligibility for relief under section 1170.95
or whether he was ineligible for relief as a matter of law.”
(Verdugo, supra, 44 Cal.App.5th at p. 333. Accord, Lewis, supra,
43 Cal.App.5th at p. 1137 [trial court “could, and properly did,
consider the record of defendant’s conviction, including [court
of appeal’s] prior opinion, in evaluating the sufficiency of the
petition”].) And it is proper for us, in addressing the issues
Orcasitas raises in this appeal, to consider our 1996 opinion
affirming his conviction on direct appeal.

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Finally, “[i]f, as here, the court concludes the petitioner
has failed to make the initial prima facie showing required by
subdivision (c), counsel need not be appointed. Of course, if
the petitioner appeals the superior court’s summary denial of
a resentencing petition, appointed counsel on appeal can argue
the court erred in concluding his or her client was ineligible for
relief as a matter of law.” (Verdugo, supra, 44 Cal.App.5th at
pp. 332-333. Accord, Lewis, supra, 43 Cal.App.5th at p. 1140
[“the trial court’s duty to appoint counsel does not arise unless
and until the court makes the threshold determination that
petitioner ‘falls within the provisions’ of the statute”]; People
v. Cornelius (2020) 44 Cal.App.5th 54, 56-58 (Cornelius), review
granted Mar. 18, 2020, S260410 [rejecting contention that court
was required to appoint counsel for petitioner “once he alleged
that he satisfied the filing requirements for the petition,
regardless of whether the allegations [were] accurate” (italics
added); where jury found true allegation that petitioner had
personally and intentionally discharged a firearm causing death,
petitioner was “indisputably ineligible for relief”]; People v.
Tarkington (2020) 49 Cal.App.5th 892; Couzens, supra,
¶ 23:51(H)(1), pp. 23-150 to 23-151 [“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.”].)
Our high court has granted review in Lewis, Verdugo, and
Cornelius, identifying the issues to be considered as “(1) May
superior courts consider the record of conviction in determining
whether a defendant has made a prima facie showing of

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eligibility for relief under Penal Code section 1170.95? (2) When
does the right to appointed counsel arise under Penal Code
section 1170.95, subdivision (c)?” (Lewis, review granted Mar. 18,
2020, S260598; Verdugo, review granted Mar. 18, 2020, S260493;
Cornelius, review granted Mar. 18, 2020, S260410.) Pending
further guidance from our Supreme Court, we agree with our
colleagues in Divisions One, Six, and Seven.
The trial court properly denied Orcasitas’s petition
for resentencing because he was the actual killer and so is
indisputably ineligible for relief under SB 1437 as a matter of
law. As this court noted in our April 1996 opinion, Orcasitas
stabbed Kufeldt “ ‘many times.’ ” “Kufeldt had been stabbed
thirty times.” (Orcasitas I.) Even if Scott died from Orona
having stabbed him nine times—rather than Orcasitas having
“attacked” him, then cutting his throat (ibid.)—our 1996 opinion
reflects evidence beyond a reasonable doubt of Orcasitas’s express
malice and intent to kill as to both victims. (Cf. Lewis, supra,
43 Cal.App.5th at pp. 1138-1139 [affirming summary denial of
petition for resentencing where court of appeal opinion affirming
conviction showed petitioner was direct aider and abettor];
Verdugo, supra, 44 Cal.App.5th at p. 335 [jury’s finding that
petitioner aided and abetted actual killer necessarily included
a finding that he specifically intended to inflict death].)

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DISPOSITION
We affirm the trial court’s order denying Joe Tomas
Orcasitas’s petition for resentencing under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
I concur:
EDMON, P. J.

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LAVIN, J., Dissenting:
Defendant Joe Orcasitas filed a petition for resentencing
under Penal Code section 1170.95 that alleged eligibility under
the statute. He also requested the appointment of counsel. The
first trial judge that reviewed the petition appointed counsel for
Orcasitas. Then, after the matter was transferred to a second
trial judge, Robert Perry, that judge summarily denied the
petition without input from Orcasitas’s previously-appointed
attorney, without receiving briefing from the prosecution, and
without appointing new counsel to represent Orcasitas.
Orcasitas contends that Judge Perry erred by summarily
denying his resentencing petition. The majority holds that the
trial court may review the record of conviction, including the
opinion in any prior appeal, and, before appointing counsel—or
receiving input from previously-appointed counsel—and before
receiving a responsive brief from the prosecution, “can dismiss
any petition filed by a person who is ineligible for relief as a
matter of law—for example, a person who the jury found had
personally used a deadly or dangerous weapon in the homicide
(and so was the actual killer).” (Maj. opn. ante, p. 6.)
For the reasons laid out in my dissent in People v.
Tarkington (2020) 49 Cal.App.5th 892, I agree with Orcasitas.
It is also worth emphasizing that, in this case, one trial
judge appointed counsel for Orcasitas, and a different trial judge,
Judge Perry, summarily denied the petition without allowing
input from counsel. The majority does not explain how, or if, this
impacts its analysis. It goes without saying that a second trial
judge cannot overrule the first trial judge’s order appointing
counsel and its implicit finding that Orcasitas made a prima facie

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showing justifying the appointment of counsel. As explained in In
re Alberto (2002) 102 Cal.App.4th 421, 427: “For one superior
court judge, no matter how well intended, even if correct as a
matter of law, to nullify a duly made, erroneous ruling of another
superior court judge places the second judge in the role of a one-
judge appellate court.” Judge Perry’s de facto reconsideration of
the first trial judge’s order was, in my view, improper.
Further, Penal Code section 1170.95 does not permit the
trial court to undertake an investigation if the petition is
complete and alleges eligibility under the statute. Indeed, “[b]y
undertaking a collateral investigation, the [trial] judge abdicates
his or her responsibility for deciding the parties’ dispute on the
pleadings and evidence properly brought before the court.”
(Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 109,
citing Wenger v. Commission on Judicial Performance (1981) 29
Cal.3d 615, 632, disapproved on other grounds in Doan v.
Commission on Judicial Performance (1995) 11 Cal.4th 294.) This
is a matter of due process. (See Conservatorship of Schaeffer
(2002) 98 Cal.App.4th 159, 164 [the court’s action amounted to an
ex parte proceeding or private investigation]; see also People v.
Ayala (2000) 24 Cal.4th 243, 262 [“As a general matter, ex parte
proceedings are disfavored.”].)
To be sure, the prohibition against investigation by the
trial judge does not extend to matters of which the court can
properly take judicial notice. The authority of the trial court to
take judicial notice of matters not tendered by the parties is,
however, constrained by Evidence Code section 455. Assuming for
the sake of argument that a trial court could take judicial notice
of the truth of facts in an appellate opinion, the court must follow
the process prescribed by the Evidence Code. The court failed to

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do so here. (See People v. Banda (2018) 26 Cal.App.5th 349 [trial
court erred by taking judicial notice of a police report in its
records without notifying defendant and affording an opportunity
to be heard].)
Therefore, I respectfully dissent.
LAVIN, J.

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