P. v. Laureano

Filed 12/15/20 P. v. Laureano CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
HARVEY LAUREANO,
Defendant and Appellant.
B301328
(Los Angeles County
Super. Ct. No. BA145099)
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed.
John L. Staley, 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 John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________

-- 1 of 11 --

2
Defendant’s petition for resentencing under Penal Code
section 1170.95 was summarily denied.1 As defendant was not
entitled to relief as a matter of law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Offense, Conviction, Appeal, and
Habeas Petition
A. The Crimes2
Defendant and his fellow Mara Salvatrucha gang member,
Oscar Cabrera, drove past a park where members of the rival
Tokers gang had gathered. Their car stopped in the middle of the
street and the two exited the car. Defendant yelled the name of
his gang as he and Cabrera approached the Tokers. One of the
Tokers yelled, “Run,” and everyone scattered.
Two of the men in the park, Jose Galindo and Edgar
Renteria, could not run because they were in wheelchairs.
Galindo told Cabrera that he was no longer a gang member.
Cabrera replied that he did not care and shot Galindo in the
back. Galindo yelled and fell from his wheelchair. Cabrera
continued to shoot Galindo, then began kicking him.
Ramon Placencia, who had started to flee, returned to try
to protect the men in the wheelchairs. Cabrera shot Placencia.
Placencia tried to get the gun from Cabrera, but defendant shot
Placencia in the back. After Placencia fell to the ground, Cabrera
1 Unless otherwise indicated, all undesignated statutory
references are to the Penal Code.
2 We take our discussion of the facts from the opinion
affirming defendant’s conviction, of which we have taken judicial
notice. (People v. Laureano (Dec. 18, 1998, B117226) [nonpub.
opn.].)

-- 2 of 11 --

3
shot him in the head several times. Cabrera also shot Renteria
three times; Renteria pretended that he was dead.
Renteria and Galindo survived. Placencia did not.
B. Defendant’s Conviction
Defendant was charged by information with one count of
murder (§ 187) (Placencia), two counts of attempted murder
(§§ 664/187) (Renteria and Galindo) and felon in possession of a
firearm (§ 12021, subd. (a)(1)). Personal use of a firearm
enhancements (§ 12022.5, subd. (a)) were alleged with respect to
the murder and attempted murders.
At jury trial, defendant unsuccessfully pursued an alibi
defense. Defendant was convicted as charged. The murder was
found to be in the first degree; both attempted murders were
premeditated. Defendant was sentenced to 25 years to life in
prison for murder, plus two consecutive terms of life in prison for
the attempts, plus 30 years (10 years each) for the personal use
enhancements, and an additional 3 years for felon in possession.
C. Defendant’s Appeal and Habeas Petition
In December 1998, defendant’s conviction was affirmed on
appeal.
In January 2018, defendant filed a petition for habeas
corpus, in which he sought relief under People v. Chiu (2014)
59 Cal.4th 155, which held that a defendant cannot be convicted
of first degree premeditated murder under a natural and
probable consequences theory. (Id. at pp. 158–159.) A prior
panel of this court denied the petition on procedural grounds. (In
re Laureano (Jan. 26, 2018, B287212) [nonpub. order].) The
panel stated, “The petition is also denied on the merits.
Petitioner was not convicted under a natural and probable

-- 3 of 11 --

4
consequences theory. Therefore, People v. Chiu [citation] is
inapplicable.” (Ibid.)
2. Proceedings on Defendant’s Section 1170.95 Petition
On June 24, 2019, defendant, representing himself, filed a
form petition for resentencing under section 1170.95. He
requested counsel. In an attached form, he explained that he
“was convicted under the natural and probable consequences
doctrine,” and qualified for relief under section 1170.95.3 At no
point in his petition did he suggest that his petition was directed
to his convictions of attempted murder as well as murder.
On July 30, 2019, the trial court appointed counsel to
represent defendant and directed the prosecution to respond to
the petition by August 22, 2019.
On August 21, 2019, the day before its response was due,
the prosecution sought an extension, to enable it to obtain and
review the record.
On August 22, 2019, the trial court held a hearing. The
prosecutor was not present, but, as the court stated, “defense
counsel is here.” The court stated, on the record, that it had
explained to defense counsel, “off the record in some detail that
this defendant does not qualify under Penal Code section
1170.95. There is no felony murder, there’s no natural and
probable consequences. And, in addition, based on my review of
3 The form was one used by inmates with disabilities who
request court accommodation of their disabilities. Defendant
claimed a learning disability and sought counsel to assist him in
pursuing his petition. Although defendant asserts, on appeal,
that the trial court erred in denying his petition without
appointing counsel, he makes no argument based on his claimed
disability and request for accommodation.

-- 4 of 11 --

5
the file, he’s an actual killer.” Based on its review of the record,
the court summarily denied the petition.
The court then stated to defense counsel, “You have told me
you want to not be appointed. You will not be appointed. I will
take credit for making that decision. [¶] In fact, we are entitled,
if we had a better system here, I would actually get to see the
case first before it went to lawyers or lawyers being appointed
and I would make my decision. That didn’t happen here. But I
am convinced, and will issue a minute order and decision that
reflects what I just said, that this defendant should have this
case summarily denied. And I’m not seeking any help from the
lawyers to help me in that decision.”
The court issued the promised minute order denying the
petition. In its order, the court stated that the prosecution did
not proceed on a felony-murder theory or natural and probable
consequences theory. As to the first, the trial court had not
instructed on felony murder. As to the second, “the appellate
court in denying petitioner’s habeas petition found that People v.
Chiu [citation] was not applicable because ‘petitioner was not
convicted under a natural and probable consequences theory.’ ”
The court also stated that, on the merits, defendant actually shot
the murder victim in the back while his colleague shot him in the
head – rendering defendant either the actual killer or a direct
aider and abettor.
Defendant filed a timely notice of appeal.
DISCUSSION
1. Applicable Procedures
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437)
invalidated the natural and probable consequences doctrine as it
relates to murder, and narrowed liability for felony murder.

-- 5 of 11 --

6
(People v. Verdugo (2020) 44 Cal.App.5th 320, 323, review
granted Mar. 18, 2020, S260493 (Verdugo).) It also enacted
section 1170.95, providing a means by which a defendant
convicted of murder under prior authority could seek
resentencing under the new version of the law.
Once a section 1170.95 petition is filed, there follows a
multi-step process by which the court first determines whether
the petition is facially complete, and, if so, whether the petitioner
has made a prima facie showing that he falls within the
provisions of statutory eligibility. (People v. Torres (2020)
46 Cal.App.5th 1168, 1177, review granted June 24, 2020,
S262011 (Torres).)
The materials which the court can review at this stage
include the prior appellate opinion (People v. Lee (2020)
49 Cal.App.5th 254, 263, review granted July 15, 2020, S262459;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, fn. 7, review
granted Mar. 18, 2020, S260598) and the jury instructions given
in the defendant’s trial. (People v. Edwards (2020)
48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481.)
If the court determines the petitioner is ineligible for relief as a
matter of law, the petition is denied at this first stage; if not, the
court proceeds to the next step. (Torres, at pp. 1177–1178.)
At the first stage, the court’s inquiry is only whether the
defendant is ineligible for relief under section 1170.95 as a
matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 329.) If, for
example, the court’s review of the record of conviction necessarily
establishes the defendant was convicted on a ground that
remains valid after SB 1437’s amendment of murder law, the
petition may be denied at this stage. (Id. at pp. 329–330.) But if
the court “cannot rule out the possibility that the jury relied on” a

-- 6 of 11 --

7
theory invalidated by SB 1437, there is no prima facie
ineligibility. (People v. Offley (2020) 48 Cal.App.5th 588, 599.)
There is no statutory right to counsel at this first, prima
facie, stage of review. (Verdugo, supra, 44 Cal.App.5th at p. 323;
see also People v. York (2020) 54 Cal.App.5th 250, 253, review
granted Nov. 18, 2020, S264954; but see People v. Cooper (2020)
54 Cal.App.5th 106, review granted Nov. 10, 2020, S264684.)
The federal and state constitutions do not compel a different
conclusion in a collateral proceeding such as this. The
constitutional right to counsel applies at all critical stages of the
process. (People v. Rouse (2016) 245 Cal.App.4th 292, 296–297.)
The essence of a critical stage is “ ‘ “the adversary nature of the
proceeding, combined with the possibility that a defendant will be
prejudiced in some significant way by the absence of counsel.”
[Citation.]’ ” (Id. at p. 297.) The prima facie determination, in
which the court does not resolve disputed issues of fact, is non-
adversarial, and counsel is not constitutionally required. (See
People v. Barton (1978) 21 Cal.3d 513, 519, fn. 3 [right to counsel
attaches on defendant’s collateral attack on his conviction after
stating a prima facie case]; In re Clark (1993) 5 Cal.4th 750, 780
[same].)
2. Defendant Did Not Establish a Prima Facie Case
Here, the trial court concluded that defendant’s conviction
was based on defendant either having been the actual killer or a
direct aider and abettor, rendering him ineligible for relief as a
matter of law. (§§ 188, 189.) We must determine whether
defendant’s murder liability instead could have been based on

-- 7 of 11 --

8
felony murder or the natural and probable consequences
doctrine.4
Our appellate record includes the jury instructions given at
defendant’s trial. The jury was not instructed on felony murder,
and defendant does not argue otherwise.
As to natural and probable consequences, we have already
held, in defendant’s prior habeas proceeding, that defendant “was
not convicted under a natural and probable consequences theory.”
To the extent defendant challenges the conclusiveness of this
determination, we briefly address defendant’s assertion that he
may have been convicted of murder on that theory.
The disagreement arises because the jury was nominally
instructed on natural and probable consequences, in addition to
direct aiding and abetting. However, given the language of the
instruction actually given, defendant’s murder conviction could
4 Preliminarily, we note that some defendants have argued
that section 1170.95 applies to attempted murder as well as
murder, a proposition that has been soundly rejected by the
appellate courts, and will be resolved by our Supreme Court.
(People v. Lopez 38 Cal.App.5th 1087, 1104−1105, review granted
Nov. 13, 2019, S258175; see also People v. Alaybue (2020)
51 Cal.App.5th 207, 222; People v. Dennis (2020) 47 Cal.App.5th
838, 844, review granted July 29, 2020, S262184; People v.
Sanchez (2020) 46 Cal.App.5th 637, 642−643, review granted
June 10, 2020, S261768.) Although the language used in
defendant’s opening brief suggests that his section 1170.95
petition was directed to his attempted murder convictions as well
his murder conviction, he relies on no record evidence that his
petition was that broad and makes no legal argument that
section 1170.95 applies to attempted murder. We therefore limit
our discussion to defendant’s conviction for murdering Placencia.

-- 8 of 11 --

9
not have been based on the natural and probable consequences
doctrine.
The jury was instructed in the language of CALJIC
No. 302, modified as follows: “One who aids and abets another in
the commission of a crime or crimes is not only guilty of those
crimes, but is also guilty of any other crime committed by a
principal which is a natural and probable consequence of the
crime[s] originally aided and abetted. [¶] In order to find the
defendant guilty of the crime[s] of murder and attempted murder
as charged in [c]ounts one, two and three, you must be satisfied
beyond a reasonable doubt that: [¶] (1) The crimes of murder
and attempted murder were committed, [¶] (2) The defendant
aided and abetted such crimes, [¶] (3) A co-principal in such
crime committed the crimes of murder and attempted murder.”
Setting to one side whether aiding and abetting an attempted
murder can support a conviction of murder under the natural and
probable consequences doctrine (and vice versa), the instruction
as given is so circular that it could not have provided an
alternative to direct aiding and abetting liability. The language
of the instruction combined three counts and two different
crimes, and the jury was told it could only apply if “murder and
attempted murder were committed” and “[t]he defendant aided
and abetted such crimes.”5 But if murder was committed and
5 In his reply brief on appeal, defendant quotes only the first
part of the instruction given (“One who aids and abets another in
the commission of a crime or crimes is not only guilty of those
crimes, but is also guilty of [any other] crime committed by a
principal which is a natural and probable consequence of the
crime[s] originally aided and abetted”) and states, “This
instruction did not prevent the jury from finding appellant guilty
of murder because it was the natural and probable consequence

-- 9 of 11 --

10
defendant aided and abetted it, he was a direct aider and abettor,
and the natural and probable consequences doctrine would be
superfluous.
Another jury finding confirms the conclusion that
defendant was not convicted of murder under the natural and
probable consequences doctrine. The jury found that the murder
was in the first degree because it was premeditated. The
premeditation instruction did not instruct that the jury must find
that the killer premeditated; it required a “clear, deliberate
intent on the part of the defendant to kill.” (Emphasis added.)
By finding that defendant acted with such intent, he was either
the actual killer or a direct aider and abettor.
Defendant’s defense at trial was alibi and identity; as this
court stated in its original opinion, the “facts surrounding the
shootings were essentially undisputed.” (People v. Laureano,
supra, B117226) Slip Opn., p. 9.) Those facts were that Cabrera
shot Placencia, and when Placencia attempted to obtain the gun
from his attacker, defendant shot Placencia in the back, enabling
Cabrera to shoot him in the head. As our record does not reveal
who fired the fatal shot, whether defendant was the actual killer
was not established. But if he was not, it is hard to conceive of a
stronger case of direct aiding and abetting.
DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
of some other crime. The jury was free to conclude appellant
intended a felony assault, or some other crime, and the natural
and probable consequences of it was murder.” Defendant is
mistaken. The remainder of the instruction gave specific
instructions on when the doctrine could apply, and limited the
target offenses to murder and attempted murder.

-- 10 of 11 --

11
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.

-- 11 of 11 --