P. v. Lara

Filed 9/17/20 P. v. Lara CA2/3
Dissenting opinion attached
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.
JORGE LOPEZ LARA,
Defendant and Appellant.
B299714
(Los Angeles County
Super. Ct. No. A885034)
APPEAL from an order of the Superior Court of
Los Angeles County, David C. Brougham, Judge. Affirmed.
Christine M. Aros, 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, Charles S. Lee and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
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A jury found Jorge Lopez Lara guilty of first degree murder
with a deadly weapon. Years later, he petitioned for resentencing
under Penal Code1 section 1170.95. The trial court summarily
denied the petition. He appeals and contends that the trial court
failed to comply with the procedure in section 1170.95. We
disagree and affirm the order.
BACKGROUND2
In 1987, Lara was at a gym with Luis Salcedo. (People v.
Lara, supra, B031490.) Both had been drinking and smoking
PCP. (Id. at p. 2.) Lara forced Salcedo to fight with another man
for money and Lara said he would kill for the money if he had to.
Thereafter, a witness saw Lara fight with Salcedo and choke him
into unconsciousness. The witness helped Lara carry Salcedo
outside so that he could get some air. Lara said they should kill
Salcedo because Salcedo’s family would retaliate if they heard
about the fight. The witness refused to help and, as he left, he
saw Lara kicking Salcedo in the head. Salcedo died from blunt
force trauma to the head. A brick with traces of Salcedo’s hair
and blood was found by a dumpster.
A jury found Lara guilty of first degree murder (§ 187,
subd. (a)) with personal use of a deadly weapon (§ 12022,
subd. (b)). (People v. Lara, supra, B031490.) In 1987, the trial
1 All further statutory references are to the Penal Code.
2 The background regarding Lara’s underlying crime is
from our colleagues’ opinion affirming the judgment of conviction.
(People v. Lara (Nov. 1, 1989, B031490) [nonpub. opn.].)
Respondent’s motion for judicial notice of that opinion filed on
July 10, 2020 is granted. (Evid. Code, § 451, subd. (a).)

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court sentenced Lara to 25 years to life plus one year for the
weapon enhancement under section 12022, subdivision (b).
Thereafter, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
took effect January 1, 2019. That law amended the felony-
murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder. Based on the new
law, a person convicted of murder under a felony murder or
natural and probable consequences theory may petition the
sentencing court for vacation of the conviction and resentencing,
if certain conditions are met. (§ 1170.95.)
Lara petitioned for resentencing under that new law. In
his form petition, Lara checked boxes indicating: (1) a complaint,
information or indictment had been filed against him that
allowed 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
under one of those doctrines, and (3) he could not now be
convicted of first or second degree murder because of changes to
sections 188 and 189. Lara also checked boxes to indicate he was
not the actual killer, did not have the intent to kill or to aid and
abet the actual killer, was not a major participant in the felony or
act with reckless indifference to human life during the course of
the crime, and to request that the court appoint counsel for him
during the resentencing process. He also checked a box that
there had been a prior determination by a court or jury that he
was not a major participant and/or did not act with reckless
indifference to human life.
The trial court appointed counsel to represent Lara in the
proceedings on the petition. The district attorney asked for an
extension of time to file an informal response to the petition.

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Without ruling on that request, and in the absence of Lara and
counsel and briefing, the trial court summarily denied the
petition, stating in its order that the court file reflected that Lara
was convicted of first degree murder with personal use of a
deadly or dangerous weapon “as the actual killer and direct
perpetrator.” Therefore, Lara was ineligible for relief.
DISCUSSION
Lara contends that the trial court erred in summarily
denying his petition before hearing from the parties.3 As we now
explain, our principal task in interpreting a statute is to
determine legislative intent and to give effect to the law’s
purpose. (People v. Verdugo (2020) 44 Cal.App.5th 320, 328, fn. 8
(Verdugo), review granted Mar. 18, 2020, S260493.) Our task
leads us to conclude that the trial court properly denied the
petition.
Under Senate Bill No. 1437, malice may no longer be
imputed to a person based solely on the person’s participation in
the crime; now, the person must have acted with malice
aforethought to be convicted of murder. (§ 188; People v. Munoz
(2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019,
S258234.) To that end, the natural and probable consequences
doctrine no longer applies to murder. And a participant in
enumerated crimes is liable under the felony-murder doctrine
3 The Supreme Court is considering whether superior
courts may consider the record of conviction in determining
whether a defendant has made a prima facie showing of
eligibility for relief under section 1170.95 and when the right to
appointed counsel arises under subdivision (c) of that section.
(People v. Lewis (2020) 43 Cal.App.5th 1128, review granted
Mar. 18, 2020, S260598.)

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only if the participant was the actual killer; or with the intent to
kill, aided and abetted the actual killer in commission of first
degree murder; or was a major participant in the underlying
felony and acted with reckless indifference to human life. (§ 189,
subd. (e); see Munoz, at pp. 749–750.)
Senate Bill No. 1437 also added section 1170.95. “Pursuant
to subdivision (a) only individuals who meet three conditions are
eligible for relief: (1) the person must have been charged with
murder ‘under a theory of felony murder or murder under the
natural and probable consequences doctrine,’ (2) convicted of first
or second degree murder, and (3) can no longer be convicted of
first or second degree murder ‘because of changes to Section 188
or 189 made effective January 1, 2019.’ ” (People v. Drayton
(2020) 47 Cal.App.5th 965, 973.)
Courts of appeal have interpreted section 1170.95 to
provide for multiple reviews of a petition by the trial court.
(People v. Tarkington (2020) 49 Cal.App.5th 892, 897, review
granted Aug. 12, 2020, S263219; People v. Drayton, supra,
47 Cal.App.5th at p. 974; People v. Cornelius (2020)
44 Cal.App.5th 54, 57–58, review granted Mar. 18, 2020,
S260410; Verdugo, supra, 44 Cal.App.5th at p. 328.)
Subdivision (b) of section 1170.95 describes an initial review to
determine the facial sufficiency of the petition. (Verdugo, at
p. 328.) To be facially sufficient, the petition must contain the
petitioner’s declaration that the petitioner is eligible for relief
according to the criteria in subdivision (a), the case number and
year of conviction, and whether the petitioner is requesting
appointment of counsel. (§ 1170.95, subd. (b)(1).) If the petition
is missing any of this information “and cannot be readily
ascertained by the court, the court may deny the petition without

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prejudice.” (§ 1170.95, subd. (b)(2).) This initial review amounts
essentially to a ministerial review to ensure that the right boxes
are checked.
Subdivision (c) of section 1170.95 then describes the next
two levels of review. It provides, “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.”
The first sentence in subdivision (c) refers to a prebriefing,
initial prima facie review to preliminarily determine a
petitioner’s statutory eligibility for relief as a matter of law.
(Verdugo, supra, 44 Cal.App.5th at p. 329.) In this step of review,
the trial court determines, based upon its review of readily
ascertainable information in the record of conviction and the
court file, whether the petitioner is statutorily eligible for relief.
(Id. at pp. 329–330.) The court may review the complaint, the
information or indictment, the verdict form or the documentation
for a negotiated plea, and the abstract of judgment. (Ibid.) A
court of appeal opinion is part of the appellant’s record of
conviction (id. at p. 333), as are jury instructions (People v. Soto
(2020) 51 Cal.App.5th 1043, 1055). If these documents reveal
ineligibility for relief, the trial court can dismiss the petition.
(Verdugo, at p. 330.)

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But, if the record of conviction does not establish as a
matter of law the petitioner’s ineligibility for resentencing,
evaluation of the petition proceeds to the second prima facie
review, in which “the court must direct the prosecutor to file a
response to the petition, permit the petitioner (through appointed
counsel if requested) to file a reply and then determine, with the
benefit of the parties’ briefing and analysis, whether the
petitioner has made a prima facie showing he or she is entitled to
relief.” (Verdugo, supra, 44 Cal.App.5th at p. 330.) The trial
court must accept as true the petitioner’s factual allegations and
make a preliminary assessment regarding whether the petitioner
would be entitled to relief if the factual allegations were proved.
(Id. at p. 328.)
We agree with those courts of appeal that interpret
section 1170.95 to permit a trial court to make an initial
determination whether the petitioner may be entitled to relief,
without first appointing counsel. The structure and grammar of
subdivision (c) of that section “indicate the Legislature intended
to create a chronological sequence: first, a prima facie showing;
thereafter, appointment of counsel for petitioner; then, briefing by
the parties.” (Verdugo, supra, 44 Cal.App.5th at p. 332, italics
added; accord, People v. Lewis, supra, 43 Cal.App.5th at p. 1140.)
As Verdugo at pages 328 to 329 noted, to hold otherwise that
counsel must be appointed once a petitioner files a facially
sufficient petition renders subdivision (c) redundant to
subdivision (b)(2).
And, where a cursory review of the record of conviction
shows that the petitioner is not entitled to relief under Senate
Bill No. 1437, it “ ‘would be a gross misuse of judicial resources to
require the issuance of an order to show cause or even

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appointment of counsel based solely on the allegations of the
petition, which frequently are erroneous.’ ” (People v. Lewis,
supra, 43 Cal.App.5th at p. 1138.)
That is the case here. The trial court appointed counsel for
Lara and notified the deputy district attorney also to assign
counsel. But, before any briefing occurred and out of counsel’s
presence, the trial court summarily denied the petition because
its file showed that Lara was the actual killer and direct
perpetrator. Although the trial court did not identify specifically
what documents it reviewed in its file, the preliminary hearing
transcript and the opinion affirming the judgment of conviction
support the trial court’s conclusion. In short, a witness heard
Lara say Salcedo needed to be killed to silence him and saw Lara
beat Salcedo. An officer found a bloody brick near Salcedo’s body.
Lara’s sole theory of defense at trial was that the witness killed
Salcedo. (People v. Lara, supra, B031490, at p. 3.) The jury,
however, found Lara guilty of first degree murder with a weapon
enhancement. In doing so, the jury rejected the theory that
someone else killed Salcedo.
The record of conviction therefore shows that Lara was the
actual killer or direct perpetrator. As such, he was ineligible for
relief under Senate Bill No. 1437, and the trial court properly
denied his petition without further briefing or hearing.

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
I concur:
EDMON, P. J.

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LAVIN, J., Dissenting:
For the reasons laid out in my dissent in People v.
Tarkington (2020) 49 Cal.App.5th 892, I would reverse the order.
LAVIN, J.

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