P. v. Huerta

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Filed 1/29/21 P. v. Huerta CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JORGE HUERTA,
Defendant and Appellant.
E074969
(Super.Ct.No. FVA07541)
OPINION
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,
Judge. Affirmed.
Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony
DaSilva, Deputy Attorneys General, for Plaintiff and Respondent.

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I
INTRODUCTION
In 1998, defendant and appellant Jorge Huerta was convicted of second degree
murder (Pen. Code,1 § 187, subd. (a)) with a true finding that he personally used a
firearm (§ 12022.5, subd. (a)) in the commission of the offense. This court affirmed the
conviction in 2000. In 2020, defendant filed a petition to vacate his murder conviction
and obtain resentencing pursuant to section 1170.95, which was enacted by the
Legislature through its passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats.
2018, ch. 1015) (Senate Bill 1437). The trial court denied the petition without holding an
evidentiary hearing.
On appeal, defendant argues the trial court erred in summarily denying his
section 1170.95 petition because he made a prima facie showing of entitlement to relief
and, therefore, the trial court should have issued an order to show cause and held an
evidentiary hearing. He also asserts that the trial court erred in considering matters
outside the petition. We find no error and affirm the trial court’s order denying defendant
relief under section 1170.95.
1 All future statutory references are to the Penal Code unless otherwise stated.

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II
FACTUAL AND PROCEDURAL BACKGROUND2
On April 25, 1997, the victim, Joel Rodriguez, and his common-law wife, Mirna
Bonilla, went to the auto body shop where both the victim and defendant work part time
to purchase some wheel rims and tires from defendant. The auto body shop is owned by
Jose Huerta, defendant’s father. After negotiating a price, the victim and Bonilla went to
the bank to obtain the necessary money.
The next day, the victim returned alone to the shop to meet defendant. Bonilla
never saw him again. When the victim did not return home that night, Bonilla became
concerned. She called the shop several times, but no one answered.
The following day, on Sunday, April 27, Bonilla passed by the shop and noticed
the victim’s car in the parking lot. After she unsuccessfully tried to gain entry to the
shop, she left and went home.
On Monday, April 28, Bonilla went to the shop to inquire about the victim’s
whereabouts. She spoke with defendant’s father and was told that he had not seen either
defendant or the victim. When the victim did not report to work that morning, Bonilla
called the police and filed a missing person’s report.
The next day, on Tuesday, April 29, at about 2:38 a.m., police officers stopped
defendant, who was driving the victim’s car alone. A search of defendant uncovered
2 The undisputed factual background is taken from this court’s nonpublished
opinion, which is part of the record on appeal, in case No. E024087, affirming
defendant’s conviction and sentence. (People v. Huerta (Aug. 23, 2000, E024087)
[nonpub. opn.].)

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three “.2 [sic] caliber shell casings.” A subsequent search of the car revealed a nickel-
plated “Raven .2 [sic] caliber semi-automatic handgun” hidden under a floor mat under
the front passenger seat, as well as the victim’s wallet and work visas. Later that day,
police discovered the victim’s body buried at the auto body shop. The victim had been
shot three times, stabbed twice, and cut once. The bullets in the victim’s body, as well as
the casings found on defendant, had been fired from the same Raven handgun discovered
under the passenger seat of the victim’s car.
Defendant did not testify, and he presented no affirmative defense. Instead, he
chose to argue that the People failed to prove their case beyond a reasonable doubt.
Defendant was charged with second degree murder (§ 187, subd. (a)) and
convicted of murdering the victim with the personal use of a handgun (§ 12022.5,
subd. (a)). He was sentenced to an indeterminate term of 15 years to life, plus a
consecutive term of 10 years in state prison.
Defendant subsequently appealed, arguing the trial court erred in instructing the
jury to disregard accessory liability. Because there was no evidence of an accessory, we
rejected defendant’s contention and affirmed the judgment in its entirety in a
nonpublished opinion filed on August 23, 2000.
On January 1, 2019, Senate Bill 1437 became effective, which amended the
felony-murder rule and the natural and probable consequences doctrine as it relates to
murder. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 also added
section 1170.95, which allows those “convicted of felony murder or murder under a

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natural and probable consequences theory . . . [to] file a petition with the court that
sentenced the petitioner to have the petitioner’s murder conviction vacated and to be
resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a).)
On June 7, 2019, defendant in propria persona filed a petition for resentencing
pursuant to section 1170.95, requesting that his second degree murder conviction be
vacated based on changes to sections 188 and 189, as amended by Senate Bill 1437, and
asking to be resentenced. The People moved to strike the petition based on the
unconstitutionality of Senate Bill 1437 and resulting statutes.
On January 13, 2020, defendant’s appointed counsel filed a motion requesting the
trial court to issue an order to show cause because defendant had met his burden to
establish a prima facie showing under section 1170.95. The People filed an informal
response, arguing defendant was not eligible for relief under section 1170.95 because he
was not charged under a felony-murder theory or under the natural and probable
consequences doctrine. The People also noted that the facts from the appellate opinion in
defendant’s direct appeal established that defendant was tried and convicted as the actual
killer.
On January 22, 2020, the trial court denied the petition based on the judicially
noticed documents, including the opinion from this court in defendant’s direct appeal and
the court records in the underlying case. The court explained, “Although I acknowledge
[defendant] checked the right boxes, the allegations in that petition are just flatly
inconsistent with the facts that are established by those other documents, which I have

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judicially noticed. And based on that set of facts, there is no felony murder issue. There
is no co-defendant. It just seems an utterly prosaic second-degree murder conviction
where the defendant was alleged to have been the actual killer, so the resentencing
provisions of section 1170.95 do not apply in such a case. [¶] So I am, for the record, I
am going beyond just the mere allegations in the petition to include an examination of
those judicially noticed facts. And on that basis, I am going to deny the petition for
resentencing.”
Defendant timely appealed from the court’s order denying his section 1170.95
petition.
III
DISCUSSION
Defendant contends the trial court erred in summarily denying his section 1170.95
petition for resentencing without issuing an order to show cause and holding an
evidentiary hearing on the merits because Senate Bill 1437 applies to the crime of second
degree murder and he made a prima facie showing entitling him to relief. He further
asserts the trial court erred in considering matters outside of the petition, i.e., the court
record of his underlying case and this court’s prior opinion, in denying his petition. We
disagree.
Senate Bill 1437, which became effective on January 1, 2019, addresses certain
aspects of California law regarding felony murder and the natural and probable
consequences doctrine by amending sections 188 and 189. (People v. Martinez (2019) 31

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Cal.App.5th 719, 722 (Martinez).) By amending sections 188 (defining malice) and 189
(defining the degrees of murder), Senate Bill 1437 changed “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, subd. (f); see Martinez,
at pp. 722-723.)
Senate Bill 1437 also added section 1170.95. That section provides that “[a]
person convicted of felony murder or murder under a natural and probable consequences
theory may file a petition with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on any remaining counts.”
(§ 1170.95, subd. (a).) A person filing a petition under section 1170.95 is entitled to the
appointment of counsel, the opportunity for further briefing and a hearing if, in his
petition, he “makes a prima facie showing that he . . . is entitled to relief” under that
section. (§ 1170.95, subds. (c) & (d); People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-
1140 (Lewis), review granted Mar. 18, 2020, S260598;3 People v. Verdugo (2020) 44
Cal.App.5th 320, 330 (Verdugo), review granted Mar. 18, 2020, S260493.)
A petition may be filed when the following three conditions are met: “(1) A
complaint, information, or indictment was filed against the petitioner that allowed the
3 Under California Rules of Court, rule 8.1115, we may rely on appellate cases
while review is pending as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1),
eff. July 1, 2016.)

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prosecution to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or
second degree murder following a trial or accepted a plea offer in lieu of a trial at which
the petitioner could be convicted for first degree or second degree murder. [¶] (3) The
petitioner could not be convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3).) A
person may be convicted of murder, even after the 2019 changes to sections 188 and 189,
if he or she “was the actual killer.” (§ 189, subd. (e)(1).) A “‘prima facie showing is one
that is sufficient to support the position of the party in question.’ [Citation.]” (Lewis,
supra, 43 Cal.App.5th at p. 1137.)
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-
898 (Tarkington), review granted Aug. 12, 2020, S263219; People v. Cornelius (2020) 44
Cal.App.5th 54, 57-58 (Cornelius), review granted Mar. 18, 2020, S260410; Verdugo,
supra, 44 Cal.App.5th at pp. 326-328; People v. Drayton (2020) 47 Cal.App.5th 965,
974-975 (Drayton).) Subdivision (b) of section 1170.95 describes an initial review to
determine the facial sufficiency of the petition. (Verdugo, at pp. 327-328.) 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

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ascertained by the court, the court may deny the petition without prejudice.” (§ 1170.95,
subd. (b)(2).) This initial review amounts essentially to a ministerial review to ensure
that the right boxes are checked.
Section 1170.95, subdivision (c), then describes the next two levels of review and
sets forth the trial court’s obligations upon the submission of a complete petition. 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 defendant’s record of conviction (id. at

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p. 333; Lewis, supra, 43 Cal.App.5th at pp. 1137-1138 [in determining the sufficiency of
a section 1170.95 petition, the court may review the record of conviction, which includes
the opinion in a defendant’s direct appeal]; People v. Bascomb (2020) 55 Cal.App.5th
1077, 1086 [same]), as are jury instructions. (People v. Soto (2020) 51 Cal.App.5th
1043, 1055, review granted Sept. 23, 2020, S263939.) If these documents reveal
ineligibility for relief, the trial court can dismiss the petition. (Verdugo, at p. 330.)
Courts of Appeal, including this court, have 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. The Courts of Appeal
concluded that a trial court can consider the defendant’s record of conviction, including
documents in the court’s own file and the appellate opinion resolving the defendant’s
direct appeal, in determining eligibility. (Lewis, supra, 43 Cal.App.5th at pp. 1137-1138;
Verdugo, supra, 44 Cal.App.5th at pp. 329-330; People v. Law (2020) 48 Cal.App.5th
811, 820-821 (Law) [we held the trial court did not err by looking to the record of
conviction, the opinion in the defendant’s direct appeal, and the jury instructions from his
trial in evaluating his petition], review granted July 8, 2020, S262490.)
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,

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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.)
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. (§ 1170.95, subd. (d)(1).) At such a hearing, both
the prosecution and the defense may rely on the record of conviction or may offer new or
additional evidence. (§ 1170.95, subd. (d)(3).) “[T]he burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3); Martinez, supra, 31 Cal.App.5th at pp. 723-724.)
Here, the trial court correctly concluded that defendant did not make out a prima
facie case for relief because the record of conviction establishes, as a matter of law, that
he is not eligible for relief. That is because defendant was not tried under the felony-
murder theory or under the natural and probable consequences doctrine. In addition, no
codefendant was involved in this case. The jury found defendant guilty of second degree
murder, and further found true that defendant personally used a firearm in committing the
offense. The jury’s findings of fact necessarily label defendant as the “actual killer” and
hence ineligible for relief under section 1170.95. (E.g., Tarkington, supra, 49
Cal.App.5th at p. 899 [the defendant was actual killer]; Cornelius, supra, 44 Cal.App.5th

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at pp. 56, 58 [the defendant personally and intentionally discharged a firearm causing
death (§ 12022.53, subd. (d)), and, as the actual killer, was ineligible for 1170.95 relief].)
Defendant contends that, even if a trial court may consider matters outside of the
petition, “the jury’s question about accessory liability suggests that at least at that point
the jury had not unanimously found beyond a reasonable doubt that [defendant] was the
actual killer and/or that he harbored malice aforethought.” However, as noted by the trial
court, and by this court in the prior opinion from defendant’s direct appeal, there was no
evidence to suggest accessory liability. The summary denial of defendant’s
section 1170.95 petition in this case rests not on the facts regarding the offense that are
recited in the prior appellate decision, but rather on the facts setting forth the jury’s
findings recited in that decision—namely, the fact that the jury found defendant guilty of
second degree murder and found true that defendant had personally used a firearm.
Those latter facts are a proper subject of judicial notice as an “accurate[ ]” “reflect[ion]”
of what is in “the trial record” and are properly admitted for “the nonhearsay purpose of
determining the basis of the conviction.” (People v. Woodell (1998) 17 Cal.4th 448, 456-
457, 459-461; People v. Franklin (2016) 63 Cal.4th 261, 280.)
Section 1170.95 does not provide a basis for reconsidering the guilt of defendants
indisputably convicted on the basis that they were the actual killer. The jury’s true
finding here that defendant personally used a firearm in the commission of the murder
shows he was the actual killer. In addition, there were no codefendants involved in this
case. And, defendant was not tried under the natural and probable consequences doctrine

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or under the felony-murder rule. Because the prior opinion from defendant’s direct
appeal shows he was convicted of murder as an actual killer, defendant is not entitled to
relief under section 1170.95 as a matter of law. The trial court therefore did not err in
denying his petition for resentencing without issuing an order to show cause and holding
an evidentiary hearing.
IV
DISPOSITION
The trial court’s postjudgment order denying defendant’s section 1170.95
resentencing petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
McKINSTER
Acting P. J.
MENETREZ
J.

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