P. v. Cota

Filed 11/17/20 P. v. Cota CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
LARRY COTA,
Defendant and Appellant.
B303670
(Los Angeles County
Super. Ct. No. BA123176)
APPEAL from an order of the Superior Court, Los Angeles
County, Craig Richman, Judge. Affirmed.
Marta I. Stanton, 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, and Charles S. Lee and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
Larry Cota appeals from the superior court’s order denying
his petition under Penal Code section 1170.95,1 which allows
certain defendants convicted of murder under a felony murder or
natural and probable consequences theory to petition the court to
vacate their convictions and for resentencing. Cota contends that
he alleged a prima facie case for relief and that the superior court
violated his rights to due process and counsel by summarily
denying the petition without giving his appointed counsel the
opportunity to submit additional briefing.
We conclude that Cota’s contentions have no merit and that
any procedural error by the superior court was harmless because
Cota is ineligible for relief under section 1170.95. Therefore, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Cota of Second Degree Murder, and
This Court Affirms
In the late afternoon of November 5, 1995 nine-year-old
Hector G. was playing in the front yard of his house when Cota
drove his truck through a chain link fence, onto the front yard,
and into Hector. A neighbor screamed at Cota, “Stop the truck
because there’s a kid under the truck and he’s been injured.”
Cota said, “Fuck you,” and drove forward and in reverse, in an
attempt to disentangle the truck from the fence. When Cota
finally broke away from the fence, neighbors ran after him to get
him to stop, but he drove off. A sheriff’s deputy chased Cota and
1 Undesignated statutory references are to the Penal Code.

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observed him driving erratically before coming to a stop. When
Cota got out of his truck, he appeared intoxicated. A sample of
Cota’s blood contained 0.18 percent alcohol. Hector died from
multiple fractures caused by the collision. (People v. Cota
(June 23, 1998, B113879) [nonpub. opn.].)
A jury convicted Cota of second degree murder (§ 187,
subd. (a)), failing to stop at the scene of an accident resulting in
injury or death (Veh. Code, § 20001, subd. (a)), driving under the
influence of an alcoholic beverage and proximately causing injury
(Veh. Code, § 23153, subd. (a)), and driving a vehicle while
having 0.08 percent or more, by weight, of alcohol in his blood
and proximately causing injury (Veh. Code, § 23153, subd. (b)).2
(People v. Cota, supra, B113879.) The jury also found true the
allegation that Cota had two prior serious or violent felony
convictions within the meaning of the three strikes law (§§ 667,
subds. (b)-(i); 1170.12, subds. (a)-(d)).
The trial court sentenced Cota to a prison term of 70 years
to life. (People v. Cota, supra, B113879.) Cota appealed, and we
affirmed.
B. The Legislature Enacts Senate Bill No. 1437
In 2018 the Legislature enacted Senate Bill No. 1437
(Stats. 2018, ch. 1015, § 4), effective January 1, 2019, “to amend
the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
2 Cota was convicted in 1991, 1992, and 1993 of driving
under the influence of alcohol. After his first conviction, Cota
participated in a program for persons convicted of driving under
the influence, which consisted of weekly lectures that
“emphasized injury as a possible consequence of drinking and
driving.” (People v. Cota, supra, B113879.)

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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); see
People v. Perez (2020) 54 Cal.App.5th 896, 902; People v.
Verdugo (2020) 44 Cal.App.5th 320, 325 (Verdugo), review
granted Mar. 18. 2020, S260493.)3
Senate Bill No. 1437 amended the felony murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder by amending sections 188 and 189. New
section 188, subdivision (a)(3), provides, “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder,
a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.” (See People v. Lopez (2019)
38 Cal.App.5th 1087, 1103 [“Now, rather than an objective,
reasonable foreseeability standard, . . . pursuant to new
section 188, subdivision (a)(3), to be guilty of murder other than
as specified in section 189, subdivision (e), concerning felony
murder, the subjective mens rea of ‘malice aforethought’ must be
proved.”], review granted Nov. 13, 2019, S258175.) New section
3 The Supreme Court in Verdugo ordered briefing deferred
pending its disposition of People v. Lewis (2020) 43 Cal.App.5th
1128, review granted March 18, 2020, S260598, in which briefing
and argument are limited to the following issues: (1) May
superior courts consider the record of conviction in determining
whether a defendant has made a prima facie showing of
eligibility for relief under section 1170.95? (2) When does the
right to appointed counsel arise under section 1170.95,
subdivision (c)?

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189, subdivision (e), provides that, with respect to a participant
in the perpetration or attempted perpetration of a felony listed in
section 189, subdivision (a), in which a death occurs (that is,
those crimes that provide the basis for first degree felony
murder), an individual is liable for murder “only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶]
(2) The person was not the actual killer, but, with the intent to
kill, aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.” (See People v. Lombardo (2020) 54 Cal.App.5th
553, 556 [under amended section 189, subdivision (e), a
participant in a felony in which a death occurs “‘“is liable for
murder only if one of the [three circumstances specified in the
statute] is proven”’”]; People v. Galvan (2020) 52 Cal.App.5th
1134, 1140 [Senate Bill No. 1437 “eliminated the natural and
probable consequences doctrine as a basis for murder liability,
and added a requirement for felony murder that a defendant
must have been at least a major participant in the underlying
felony and have acted with reckless indifference to human life”],
review granted Oct. 14, 2020, S264284.)
Senate Bill No. 1437, through new section 1170.95, also
authorizes 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 to be resentenced
on any remaining counts if the individual could not have been
convicted of murder under Senate Bill No. 1437’s changes to the
definition of the crime. (People v. Tarkington (2020)

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49 Cal.App.5th 892, 896-897 (Tarkington), review granted
Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th at
p. 326; see § 1170.95, subd. (a).) The petition must include a
declaration by the petitioner he or she is eligible for relief under
section 1170.95, the superior court case number and year of the
petitioner’s conviction, and a statement whether the petitioner
requests the appointment of counsel. (§ 1170.95, subd. (b)(1); see
Tarkington, at p. 897; Verdugo, at pp. 326-327.) If information “is
missing from the petition 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); see People v. Edwards (2020)
48 Cal.App.5th 666, 672, review granted July 8, 2020, S262481.)
If the petition contains all required information, and the
court determines the petition is facially sufficient, section
1170.95, subdivision (c), prescribes a two-step procedure for
determining whether to issue an order to show cause: “‘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; see Tarkington, supra, 49 Cal.App.5th at p. 897.) At
the first prima facie step, the superior court performs ‘“a
substantive gatekeeping function, screening out clearly ineligible
petitioners before devoting additional resources to the
resentencing process.’” (People v. Edwards, supra,

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48 Cal.App.5th at p. 673.) “Based on a threshold review” of the
record of conviction, including the opinion in the petitioner’s
direct appeal in evaluating the petition under section 1170.95,
the court can dismiss a petition if the documents establish “the
petitioner is ineligible for relief as a matter of law because he or
she was convicted on a ground that remains valid
notwithstanding Senate Bill [No.] 1437’s amendments to sections
188 and 189.” (Verdugo, at p. 330; see Tarkington, at p. 898;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1138 (Lewis), review
granted Mar. 18, 2020, S260598.) At the second prima facie step,
“if the petitioner’s ineligibility for resentencing under section
1170.95 is not established as a matter of law by the record of
conviction, 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, at p. 330; see Tarkington, at p. 898.)
If the court determines the petitioner has made a prima
facie showing and the court issues an order to show cause, 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. (§ 1170.95, subd. (d)(1); see
Verdugo, supra, 44 Cal.App.5th at p. 327.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).) The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence. (See
Tarkington, supra, 49 Cal.App.5th at pp. 898-899; Lewis, supra,
43 Cal.App.5th at p. 1136.)

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C. Cota Files a Petition Under Section 1170.95, Which
the Superior Court Summarily Denies
On August 2, 2019 Cota filed a petition under section
1170.95, using “a downloadable form petition/declaration
prepared by Re:Store Justice, a cosponsor of the legislation (see
Sen. Com. on Public Safety, Rep. on Sen. Bill No. 1437
(2017-2018 Reg. Sess.) as amended Feb. 16, 2018, p. 1).”
(Verdugo, supra, 44 Cal.App.5th at p. 324.) Cota checked the
boxes next to the following statements: “A complaint,
information, or indictment was filed against me that allowed the
prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine”; “At trial,
I was convicted of 1st or 2nd degree murder pursuant to the
felony murder rule or the natural and probable consequences
doctrine”; “I could not now be convicted of 1st or 2nd degree
murder because of changes made to Penal Code §§ 188 and 189,
effective January 1, 2019”; “I was convicted of 2nd degree murder
under the natural and probable consequences doctrine or under
the 2nd degree felony murder doctrine and I could not now be
convicted of murder because of changes to Penal Code § 188,
effective January 1, 2019”; and “I request that this court appoint
counsel for me during this re-sentencing process.” The superior
court reappointed counsel to represent Cota on his petition.
At an October 30, 2019 hearing with the prosecutor and
counsel for Cota, the superior court stated, “I haven’t looked at
anything,” and asked the parties for their positions on how the
court should proceed. The prosecutor stated that Cota was
convicted of a “Watson murder,”4 that “there was only one person
4 In People v. Watson (1981) 30 Cal.3d 290 the Supreme
Court held that the People can charge a person who kills another

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involved in the case,” and that “Cota was the driver.” The court
asked counsel for Cota “whether this is a case in which [section]
1170.95 applies or not.” Counsel for Cota stated, “It does not
appear that [Cota] qualifies,” but added, “He’s entitled to a
hearing at least.” The court denied the petition “because [Cota] is
not eligible for the relief sought.”5 The court’s minute order
stated, “The defendant is not eligible for relief sought, as he was
convicted as the actual killer.” Cota timely appealed.
person while driving under the influence of alcohol with “second
degree murder based on implied malice.” (Id. at p. 300.) The
Supreme Court explained that “malice may be implied when a
person, knowing that his conduct endangers the life of another,
nonetheless acts deliberately with conscious disregard for life.”
(Id. at p. 296; see People v. Wolfe (2018) 20 Cal.App.5th 673, 681
[“Malice may be implied when a person willfully drives under the
influence of alcohol.”].)
5 Based on the transcript of the October 30, 2019
proceedings, it does not appear that the superior court reviewed
the record of conviction before denying Cota’s petition. (See
Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) Cota, however,
does not argue the superior court erred in failing to examine the
record of conviction before determining he was ineligible for relief
under section 1170.95.

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DISCUSSION
A. The Superior Court Did Not Err in Summarily
Denying Cota’s Petition Under Section 1170.95
1. Cota Failed To State a Prima Facie Case of
Eligibility
Cota contends the superior court erred in summarily
denying his petition because he “stated a prima facie claim for
resentencing” by “alleging the three require[d] conditions” under
section 1170.95, subdivision (a). We review de novo the superior
court’s ruling that Cota was ineligible for relief as a matter of
law. (People v. Murillo (2020) 54 Cal.App.5th 160, 167, petn. for
review pending, petn. filed Oct. 13, 2020, S264978.)
Cota’s recitation in his petition of words mirroring the
language of section 1170.95, subdivision (a), did not, without
more, state a prima facie case for relief. (See People v. Law
(2020) 48 Cal.App.5th 811, 820 [courts “have already rejected the
argument that a trial court is limited to the allegations in the
petition when determining whether the petitioner has stated a
prima facie claim for relief under section 1170.95”], review
granted July 8, 2020, S262490.) As we explained in Verdugo,
supra, 44 Cal.App.5th 320, when the superior court conducts the
first prima facie review of the petition under section 1170.95,
subdivision (c), the court must do more than “simply determin[e]
whether the petition is facially sufficient.” (Verdugo, at
pp. 328-329.) The court must conduct “a preliminary review of
statutory eligibility for resentencing” by examining the record of
conviction to assess whether in fact the petitioner “falls within
the provisions of [section 1170.95].” (Verdugo, at pp. 329-330.)
Contrary to Cota’s argument, the court does not need to accept as

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true a petitioner’s allegations. (See People v. Perez, supra,
54 Cal.App.5th at pp. 903-904 [“‘if the record “contain[s] facts
refuting the allegations made in the petition . . . the court is
justified in making a credibility determination adverse to the
petitioner,”’” limited to “‘readily ascertainable facts from the
record (such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion’”];
see also Lewis, supra, 43 Cal.App.5th at p. 1138 [‘“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 in 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 opinion in Cota’s direct appeal established Cota was
convicted of second degree murder based on a theory of implied
malice, a theory that Senate Bill No. 1437 did not affect. Cota,
who had three prior convictions for driving under the influence of
alcohol and therefore knew of the dangers of driving while
intoxicated, drove with a blood alcohol content of 0.18 percent,
crashed into the front yard of a residence and into a fence, and
crushed a small child. The trial court instructed the jury with
CALJIC No. 8.11, which stated, in pertinent part: ‘“Malice is
implied when: [¶] 1. The killing resulted from an intentional act,
[¶] 2. The natural consequences of the act are dangerous to
human life, and [¶] 3. The act was deliberately performed with
knowledge of the danger to, and with conscious disregard for,
human life.’” The trial court also instructed the jury with
CALJIC No. 8.51, which stated: ‘“If a person causes another’s
death while committing a misdemeanor inherently dangerous to
human life, the crime is manslaughter. [¶] There are many acts
which are lawful but nevertheless endanger human life. If a
person causes another’s death by doing such a dangerous act in

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an unlawful or criminally negligent manner, without realizing
the risk involved, he is guilty of manslaughter. If, on the other
hand, the person realized the risk and acted in total disregard of
the danger to life involved, malice is implied, and the crime is
murder.”’ (People v. Cota, supra, B113879.)
In Cota’s direct appeal, we concluded the jury “was
adequately instructed regarding the objective standard to be
utilized to find gross negligence and the elements necessary to
find a person guilty of second degree murder under the theory of
implied malice.” (People v. Cota, supra, B113879.) Because the
jury found Cota guilty of second degree murder, and not gross
negligence, the jury necessarily found Cota acted with implied
malice when he drove under the influence of alcohol on November
5, 1995.6 There is no suggestion in the record, and Cota does not
argue, he was charged, tried, or convicted under a felony murder
or natural and probable consequences theory.7 Cota was
convicted under “a theory that survive[d] the changes to sections
188 and 189.” (Tarkington, supra, 49 Cal.App.5th at p. 899; see
People v. Soto (2020) 51 Cal.App.5th 1043, 1057 [Senate Bill
No. 1437 “did not exclude from liability persons convicted of
6 Cota did not challenge the sufficiency of the evidence to
support his conviction of second degree murder.
7 The “natural consequences” language in CALJIC No. 8.11
does not refer to the natural and probable consequences theory.
(See People v. Soto (2020) 51 Cal.App.5th 1043, 1059 [“The
‘natural consequences’ language in the instruction for second
degree murder does not transform [the defendant’s] conviction
into one for murder under the natural and probable consequences
doctrine within the meaning of section 1170.95.”], review granted
Sept. 23, 2020, S263939.)

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murder for acting with implied malice”], review granted Sept. 23,
2020, S263939]; People v. Cornelius (2020) 44 Cal.App.5th 54,
57-58 [Senate Bill No. 1437 amended section 188 “to require that
a principal act with express or implied malice”], review granted
Mar. 18, 2020, S260410.)
2. Section 1170.95, Subdivision (c), Did Not
Require the Superior Court To Appoint Counsel
or Order Briefing Before Determining Cota Was
Ineligible for Relief
Cota argues the superior court erred in summarily denying
his petition “without providing defense counsel the opportunity to
adequately prepare and represent [him] and without giving
defense counsel the opportunity to file additional briefing on [his]
petition.” Section 1170.95, subdivision (c), does not require the
superior court to provide an opportunity for briefing, or even to
appoint counsel, before the court makes the initial determination
whether the petitioner is eligible for relief under section 1170.95.
(See Verdugo, supra, 44 Cal.App.5th at p. 323 [rejecting the
argument that “the superior court lacked jurisdiction to deny his
section 1170.95 petition on the merits without first appointing
counsel and allowing the prosecutor and appointed counsel to
brief the issue of his entitlement to relief”]; accord, People v.
Flores (2020) 54 Cal.App.5th 266, 272; People v. Gomez (2020)
52 Cal.App.5th 1, 16, review granted Oct. 14, 2020, S264033;
Tarkington, supra, 49 Cal.App.5th at p. 901; People v. Cornelius,
supra, 44 Cal.App.4th at p. 58; but see People v. Cooper (2020)
54 Cal.App.5th 106, 109 [“the right to counsel attaches upon the
filing of a facially sufficient petition that alleges entitlement to
relief”], review granted Nov. 10, 2020, S264684.)
Cota argues: “Had the trial court properly appointed
counsel and heard from counsel, counsel could have argued that

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appellant did not act with intent or malice aforethought.” As the
record demonstrates, however, any argument that counsel for
Cota could have made would not have changed the fact Cota was
ineligible for relief under section 1170.95. Therefore, any
procedural error was harmless under the standard of People v.
Watson (1956) 46 Cal.2d 818, 836. (See People v. Epps (2001)
25 Cal.4th 19, 29 [“the Watson harmless error test applies” to the
denial of a right that “is purely a creature of state statutory
law”]; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252
[“violation of a statutory right to counsel is properly reviewed
under the harmless error test enunciated in People v. Watson”];
see also People v. Edwards, supra, 48 Cal.App.5th at p. 675
[“since [the defendant] does not fall within the provisions of
section 1170.95 as a matter of law, any of the purported errors [in
failing to appoint counsel, ordering briefing, and holding a
hearing] were harmless under any standard of review [citations]
and remand would be an idle act”].)
B. The Superior Court Did Not Violate Cota’s Sixth
Amendment or Due Process Rights
Cota contends the superior court’s summary denial of his
petition under section 1170.95 “violated [his] federal
constitutional rights to due process and to the assistance of
counsel.” The law does not support Cota’s contention.
‘“[T]he retroactive relief . . . afforded by Senate Bill
[No.] 1437 is not subject to Sixth Amendment analysis. Rather,
the Legislature’s changes constituted an act of lenity that does
not implicate . . . Sixth Amendment rights.’” (People v. Perez,
supra, 54 Cal.App.5th at p. 908; see People v. Lopez, supra,
38 Cal.App.5th at pp. 1114-1115; People v. Anthony (2019)
32 Cal.App.5th 1102, 1156-1157.) Moreover, as the Supreme
Court has held in the context of post-conviction petitions, “Unless

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we make the filing of adequately detailed factual allegations
stating a prima facie case a condition to appointing counsel, there
would be no alternative but to require the state to appoint
counsel for every prisoner who asserts that there may be some
possible ground for challenging his conviction. Neither the
United States Constitution nor the California Constitution
compels that alternative. Accordingly, in the absence of adequate
factual allegations stating a prima facie case, counsel need not be
appointed either in the trial court or on appeal from a summary
denial of relief in that court.” (People v. Shipman (1965)
62 Cal.2d 226, 232; cf. In re Clark (1993) 5 Cal.4th 750, 780 [“if a
petition attacking the validity of a judgment states a prima facie
case leading to issuance of an order to show cause, the
appointment of counsel is demanded by due process concerns”];
In re Sanders (1999) 21 Cal.4th 697, 717, fn. 11 [same].) Because
Cota did not make a prima facie showing he is eligible for relief
under section 1170.95, the superior court’s summary denial of his
petition did not deprive him of the assistance of counsel.8
8 Cota provides no argument in support of his contention,
mentioned in a sentence, the superior court violated his due
process rights. Therefore, we do not consider it. (See People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 [“If a
party’s briefs do not provide legal argument and citation to
authority on each point raised, ‘“the court may treat it as waived,
and pass it without consideration.”’”]; Cal. Rules of Court, rule
8.204(a)(1)(B).)

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DISPOSITION
The order denying Cota’s petition under section 1170.95 is
affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
RICHARDSON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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