P. v. Caballero

Filed 4/3/20 P. v. Caballero CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
EFRINE BERSIME CABALLERO,
Defendant and Appellant.
B298815
(Los Angeles County
Super. Ct. No. TA087353)
APPEAL from an order of the Superior Court of Los
Angeles County, Allen Joseph Webster, Jr., Judge.
Affirmed.
Maggie Shrout, 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,

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Acting Senior Assistant Attorney General, Idan Ivri and
Allison H. Chung, Deputy Attorneys General, for Plaintiff
and Respondent.
_______________________________________________
INTRODUCTION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437),
effective January 1, 2019, amended the felony-murder rule
and eliminated the natural and probable consequences
doctrine as it relates to murder. Under Penal Code section
1170.95,1 a person who was convicted under theories of
felony murder or murder under the natural and probable
consequences doctrine, and who could not be convicted of
murder following the enactment of SB 1437, may petition
the sentencing court to vacate the conviction and resentence
on any remaining counts.
A jury convicted appellant Efrine Bersime Caballero of
second degree murder in 2007. Following the enactment of
SB 1437, appellant filed a petition for resentencing under
section 1170.95 and requested the appointment of counsel.
The trial court summarily denied appellant’s petition,
without appointing counsel or permitting briefing, finding
appellant was ineligible for relief based on the evidence
presented at his trial. On appeal, appellant argues the court
erred in relying on matters outside the petition to summarily
deny it. He also contends the court’s summary denial
1 Undesignated statutory references are to the Penal Code.

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violated his federal constitutional rights to counsel and due
process. Finding no error, we affirm.
BACKGROUND2
In 2007, appellant was tried for murder and related
offenses. As to the murder charge, the People prosecuted the
case on two alternative theories: (1) appellant himself shot
and killed the victim; or (2) appellant was a direct aider and
abettor in the murder, acting “with knowledge of [the
perpetrator’s] unlawful purpose” and “intend[ing] [to]
encourage murder.” The trial court instructed the jury on
each of these theories. As to the direct aider and abettor
theory, the court instructed under CALCRIM No. 401 that
an aider and abettor must “know[] of the perpetrator’s
unlawful purpose and . . . specifically intend[] to . . . aid,
facilitate, promote, encourage, or instigate the perpetrator’s
commission of that crime.” The court did not instruct the
jury on felony murder or the natural and probable
consequences doctrine.3
2 We grant respondent’s request to take judicial notice of the
appellate record in appellant’s prior appeal (People v. Caballero,
(Apr. 21, 2008, B199180) [nonpub. opn.], (Caballero).)
3 Before the Legislature enacted SB 1437, “‘[t]he felony-
murder rule ma[de] a killing while committing certain felonies
murder without the necessity of further examining the
defendant’s mental state.’” (People v. Bryant (2013) 56 Cal.4th
959, 965.) A murder conviction under this rule, “‘[did] not require
an intent to kill, or even implied malice, but merely an intent to
commit the underlying felony.’” (Ibid.)
(Fn. is continued on the next page.)

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As relevant here, the jury found appellant guilty of
second degree murder, and he was sentenced to a total term
of 26 years to life. We affirmed the judgment of conviction in
an unpublished opinion. (Caballero, supra, (B199180).)
In 2019, appellant filed a propria persona petition for
retroactive sentencing relief under section 1170.95, alleging
he was convicted of murder under a theory of felony murder
or the natural and probable consequences doctrine, and
claiming he could not be convicted of that offense following
SB 1437’s enactment. Appellant requested that the trial
court appoint him counsel to represent him in the
proceedings. The trial court summarily denied the petition
without appointing counsel or permitting briefing. Based on
the evidence presented at appellant’s trial, the court
concluded appellant was the actual shooter and found he
“Under the natural and probable consequences doctrine,
‘[a]n aider and abettor is guilty not only of the intended, or
target, crime but also of any other crime a principal in the target
crime actually commits (the nontarget crime) that is a natural
and probable consequence of the target crime.’” (People v. Vega-
Robles (2017) 9 Cal.App.5th 382, 433-434, quoting People v.
Smith (2014) 60 Cal.4th 603, 611.) Prior to SB 1437’s enactment,
if a person aided and abetted only an intended assault, but a
murder resulted, that person could be guilty of murder “‘if it
[wa]s a natural and probable consequence of the intended
assault.’” (People v. Smith, supra, at 611.) As explained below,
SB 1437 limited the felony-murder rule and eliminated the
natural and probable consequences doctrine as it relates to
murder.

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was therefore ineligible for relief under SB 1437. Appellant
timely appealed.
DISCUSSION
A. Governing Principles
1. SB 1437’s Limitation of Accomplice
Liability for Murder
The Legislature enacted SB 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(f).)
SB 1437 amended section 189 to provide that a participant
in qualifying felonies during which a death occurs generally
will not be liable for murder unless that person was (1) “the
actual killer,” (2) a direct aider and abettor in first degree
murder, or (3) “a major participant in the underlying felony
[who] acted with reckless indifference to human life.”4
(§ 189, subd. (e).)
4 This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of the peace officer’s duties.” (SB 1437, § 189, subd.
(f).)

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SB 1437 also “added a crucial limitation to section
188’s definition of malice for purposes of the crime of
murder.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 326,
review granted Mar. 18, 2020, S260493 (Verdugo).) Under
new section 188, subdivision (a)(3), “[m]alice shall not be
imputed to a person based solely on his or her participation
in a crime.” “As a result, the natural and probable
consequences doctrine can no longer be used to support a
murder conviction.” (People v. Lewis (2020) 43 Cal.App.5th
1128, 1135, review granted Mar. 18, 2020, S260598 (Lewis).)
“The change did not, however, 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.’” (Ibid.) “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.” (Ibid.)
2. Petitions to Vacate Prior Convictions
SB 1437 also added section 1170.95 to the Penal Code.
This section permits individuals who were convicted of
felony murder or murder under a natural and probable
consequences theory, and who could not be convicted of
murder following SB 1437’s changes to section 188 and 189,
to petition the sentencing court to vacate the conviction and
resentence on any remaining counts. (§ 1170.95, subd. (a).)
A petition for relief under section 1170.95 must include: “(A)
A declaration by the petitioner that he or she is eligible for

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relief under this section, based on all the requirements of
subdivision (a). [¶] (B) The superior court case number and
year of the petitioner’s conviction. [¶] (C) Whether the
petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).) If any of this information is missing “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.” (§ 1170.95,
subd. (b)(2).)
If the petition contains the required information,
section 1170.95, subdivision (c), prescribes “a two-step
process” for the court to determine if it should issue an order
to show cause. (Verdugo, supra, 44 Cal.App.5th at 327.)
First, the court must “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).) If the petitioner has made this initial
prima facie showing, he is then entitled to appointed
counsel, if he has requested one. (Ibid.; Verdugo, supra, at
328; Lewis, supra, 43 Cal.App.5th at 1140.) The prosecutor
must file a response, and the petitioner may file a reply.
(§ 1170.95, subd. (c).) The court then reviews the petition a
second time. If, in light of the parties’ briefing, it concludes
the petitioner has made a prima facie showing that he or she
is entitled to relief, it must issue an order to show cause.
(Ibid.; Verdugo, at 328; Lewis, at 1140.)

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“Once the order to show cause issues, the court must
hold a hearing to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts.” (Verdugo, supra, 44
Cal.App.5th at 327, citing § 1170.95, subd. (d)(1).) At the
hearing, the parties may rely on the record of conviction or
present “new or additional evidence” to support their
positions. (§ 1170.95, subd. (d)(3).)
B. Analysis
Appellant challenges the trial court’s summary denial
of his petition, without appointing counsel and allowing
briefing. His primary contention is that the court erred in
looking beyond the face of the petition in conducting its first-
step review for prima facie eligibility under section 1170.95.
Appellant’s claim regarding the procedures section 1170.95
affords raises questions of law subject to de novo review.
(See In re T.B. (2009) 172 Cal.App.4th 125, 129
[interpretation of statute reviewed de novo].)
Every Court of Appeal to have considered the issue has
held that in determining whether a petitioner has met his
burden of demonstrating prima facie eligibility, a trial court
may look to documents that are part of the record of
conviction or are otherwise in the court file. (See Verdugo,
supra, 44 Cal.App.5th at 329 [documents in court file or
record of conviction should be available to trial court in
connection with first prima facie determination under subd.
(c)]; Lewis, supra, 43 Cal.App.5th at 1138 [trial court may

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summarily deny petition without briefing or appointment of
counsel if court file shows petitioner was convicted of murder
without instruction or argument based on felony-murder
rule or natural and probable consequences doctrine]; People
v. Cornelius (2020) 44 Cal.App.5th 54, 57-58, review granted
March 18, 2020, S260410 (Cornelius) [affirming summary
denial of petition based on verdict, trial transcript, and prior
appeal].)
In Verdugo, the Court of Appeal reasoned that the
same material the trial court may evaluate in conducting a
facial review for completeness under subdivision (b)(2) of
section 1170.95 -- “documents in the court file or otherwise
part of the record of conviction that are readily
ascertainable” -- should similarly be available to the court in
conducting the first-step review of statutory eligibility for
relief. (Verdugo, supra, 44 Cal.App.5th at 329.) In Lewis,
the court looked to “analogous situations” in which trial
courts are tasked with a preliminary evaluation of prima
facie eligibility for relief, and noted that trial courts in those
settings “are permitted to consider their own files and the
record of conviction.” (Lewis, supra, 43 Cal.App.5th at 1137-
1138, citing, e.g., People v. Washington (2018) 23
Cal.App.5th 948, 953 [courts conducting initial screening of
petition for reclassification of qualifying felony convictions
under § 1170.18 may review record of conviction] and In re
Serrano (1995) 10 Cal.4th 447, 456 [trial court may
summarily deny habeas corpus petition based on facts in its
file]; accord, Cornelius, supra, 44 Cal.App.5th at 58 [noting

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courts may summarily deny petition for writ of coram nobis
where “‘any matter of record’” precludes prima facie showing
of eligibility for relief].) The Lewis court further explained,
“Allowing the trial court to consider its file and the record of
conviction is also sound policy”: ‘“It would be a gross misuse
of judicial resources to require . . . 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 . . . 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 1138, quoting Couzens et al.,
Sentencing Cal. Crimes (The Rutter Group 2019)
¶ 23:51(H)(1).)
Appellant argues section 1170.95’s requirement that a
petitioner make only a prima facie showing of eligibility
precludes credibility assessments and therefore prevents
courts from considering evidence beyond the petition itself.
But even on review for prima facie eligibility, where a court’s
own records contradict a petitioner’s claims, the court need
not credit those claims. (Cf. In re Serrano, supra, 10 Cal.4th
at 456; People v. Washington, supra, 23 Cal.App.5th at 953.)

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Accordingly, we follow Verdugo, Lewis, and Cornelius, and
look to the trial court’s file in evaluating appellant’s petition.
Appellant’s trial record conclusively shows he was
ineligible for relief because he had not been convicted of
felony murder or murder under a theory of natural and
probable consequences.5 The jury was instructed on the
theories that appellant was the actual killer or a direct aider
and abettor in the murder. No instruction was given on
either felony murder or the natural and probable
consequences doctrine. The prosecutor’s closing argument
was in accord, arguing that appellant either shot and killed
the victim himself or aided and abetted the perpetrator,
“intend[ing] [to] encourage murder.” Appellant was
therefore ineligible for relief under section 1170.95, which
applies only to those “convicted of felony murder or murder
under a natural and probable consequences theory.”
(§ 1170.95, subd. (a).)
Appellant next argues that the trial court’s summary
denial of his petition violated his federal constitutional right
to counsel under the Sixth Amendment. However, appellant
5 Appellant speculates the trial court relied on our opinion in
his prior appeal. Even assuming he is correct, we need not decide
whether our prior opinion supported the trial court’s ruling, as
we may affirm the judgment on any correct basis presented by
the record. (See People v. Perkins (2016) 244 Cal.App.4th 129,
139 [“on appeal we are concerned with the correctness of the
superior court’s determination, not the correctness of its
reasoning”].)

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had no constitutional right to counsel at this stage of a
section 1170.95 proceeding. This provision’s retroactive
relief reflects an act of lenity by the Legislature and is not
subject to Sixth Amendment analysis. (Cf. People v. Anthony
(2019) 32 Cal.App.5th 1102, 1156 [no right to jury trial in
proceedings under SB 1437 because its retroactive relief is
“an act of lenity that does not implicate defendants’ Sixth
Amendment rights”], citing People v. Perez (2018) 4 Cal.5th
1055, 1063-1064; Pa v. Finley (1987) 481 U.S. 551, 555
[prisoners have no constitutional right to counsel “when
mounting collateral attacks upon their convictions”].) People
v. Rouse (2016) 245 Cal.App.4th 292 (Rouse), on which
appellant relies, is distinguishable. There, the Court of
Appeal held that a defendant who had successfully
petitioned to recall his sentence under section 1170.18 was
entitled to counsel at his subsequent plenary resentencing
hearing. (Rouse, supra, at 299-300.) Rouse does not support
appellant’s position that he was entitled to counsel in
litigating his eligibility for relief under section 1170.95.
Finally, appellant claims the summary denial of his
petition violated his procedural due process rights because it
deprived him of procedures to which he was entitled under
section 1170.95. As discussed, however, the trial court’s
summary denial of appellant’s petition complied with section
1170.95’s procedures. Appellant has therefore suffered no
due process violation.

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DISPOSITION
The order denying appellant’s petition under section
1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.

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