P. v. Osuna

Filed 5/19/21 P. v. Osuna CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
CARLOS JESUS OSUNA,
Defendant and Appellant.
F079997
(Super. Ct. No. 14CMS3764C)
OPINION
THE COURT*
APPEAL from an order of the Superior Court of Kings County. Robert S. Burns,
Judge.
Steven A. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Lewis A.
Martinez, and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
*Before Hill, P.J., Detjen, J. and Peña, J.

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2.
INTRODUCTION
Defendant Carlos Jesus Osuna appeals the trial court’s denial of his petition for
resentencing pursuant to Penal Code section 1170.95. (Undesignated statutory references
are to the Penal Code.) He asserts the court erred in summarily denying his section
1170.95 petition before appointing him counsel because his petition established a prima
facie case for resentencing. He further contends the court’s denial of his petition without
appointing counsel violated his constitutional rights to due process and assistance of
counsel.
We affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant pled guilty to one count of “murder with malice” in violation of section
187, subdivision (a) in 2017.
In 2019, defendant submitted a petition for resentencing pursuant to section
1170.95, using a form prepared by Re:Store Justice, a cosponsor of Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill 1437). He checked boxes stating a charging
document had been filed against him allowing the prosecution to proceed under a felony-
murder theory or the natural and probable consequences doctrine; he pled guilty or no
contest to first or second degree murder in lieu of going to trial because he believed he
could have been convicted of first or second degree murder at trial pursuant to the felony-
murder rule or the natural and probable consequences doctrine; and he could not now be
convicted of murder in light of changes made to sections 188 and 189, effective
January 1, 2019 (pursuant to Senate Bill 1437). He also checked a box indicating he was
convicted of second degree murder under the natural and probable consequences doctrine
or under the second degree felony-murder doctrine, and a box stating, “I request that this
court appoint counsel for me during this re-sentencing process.” He did not attach or
include any additional information or documents to his petition.

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3.
The trial court summarily denied the petition in July 2019, concluding defendant
“is not entitled to relief as a matter of law.” The court stated in its order:
“The court file in Case No. 14CMS3764C reflects that [defendant] was the
actual killer and was not convicted under a theory of felony murder of any
degree, or a theory of natural and probable consequences. There are no jury
instructions for aiding and abetting felony murder, or natural and probable
consequences.”
DISCUSSION
Defendant challenges the denial of his petition for resentencing. We affirm the
court’s denial.
1. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[s] 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).) It amends section
188, which defines malice, and section 189, which defines the degrees of murder to
address felony-murder liability, and it adds section 1170.95, which provides a procedure
by which those convicted of murder can seek retroactive relief if the changes in the law
would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
Accordingly, section 188 now provides that, “[e]xcept 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.” (§ 188, subd. (a)(3), italics added.) The change reflects the
Legislature’s intent that “[a] person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)

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4.
Additionally, section 189 previously stated, “All murder … which is committed in
the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary,
mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288,
288a, or 289, or any murder which is perpetrated by means of discharging a firearm from
a motor vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in
part, by adding subdivision (e), which provides:
“A participant in the perpetration or attempted perpetration of a felony
listed in subdivision (a) in which a death occurs 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.”
Newly enacted section 1170.95 permits those “convicted of felony murder or
murder under a 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 ….” (Id., subd. (a).) An offender may file a
petition under section 1170.95 where all three of the following conditions are met:
“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the 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[;] [¶] [and] (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 trial court receiving a petition under section 1170.95 “shall review the petition and
determine if the petitioner has made a prima facie showing that the petitioner falls within

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5.
the provisions of this section.” (§ 1170.95, subd. (c).) If the petitioner has made such a
showing, the trial court “shall issue an order to show cause.” (Ibid.) The trial court must
then hold a hearing “to determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the same manner as
if the petitioner had not been previously been [sic] sentenced, provided that the new
sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).)
2. Analysis
Defendant, who is represented by counsel on appeal, asserts the court erred in
denying his 1170.95 petition before appointing him counsel because his petition
established a prima facie case for resentencing. He contends he was only required to
“delineate in his petition sufficient facts to meet the low threshold to make out a prima
facie case. Once that was done, the court was obligated to appoint counsel.” He argues
the court’s denial of his petition without granting his request for counsel violated his
constitutional rights to due process and assistance of counsel. Notably, defendant does
not challenge the court’s conclusion the court file established he was the actual killer and,
thus, categorically ineligible for relief. Instead, he states, “The facts are not part of the
present appeal.” The People respond defendant’s appeal should be dismissed because
defendant failed to provide a sufficient record for review. Alternatively, they assert the
statute does not bar the court from examining the record of conviction, including the jury
findings from the trial regarding special circumstance allegations or enhancements, the
instructions detailing the theories of murder under which defendant was prosecuted,
defendant’s convictions on other counts in the same case that shed light on the
circumstances of the murder, or holdings of a reviewing court related to the murder
conviction. They assert the court correctly determined from defendant’s court file he was
the actual killer and not convicted under a theory of felony murder of any degree or under
a natural and probable consequences theory.

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Our sister courts have adopted conflicting interpretations of whether section
1170.95 requires a trial court to appoint a petitioner counsel immediately upon the filing
of a petition for resentencing under section 1170.95. (Compare People v. Lewis (2020)
43 Cal.App.5th 1128, 1140, review granted Mar. 18, 2020, S260598 (Lewis) [court does
not err by denying petition for resentencing without appointing petitioner counsel
because duty to appoint counsel does not arise unless and until the court makes threshold
determination petitioner “‘falls within the provisions’” of statute] and People v. Verdugo
(2020) 44 Cal.App.5th 320, 332–333, review granted Mar. 18, 2020, S260493 [petitioner
was not entitled to appointment of counsel before initial prima facie review of eligibility
for relief] with People v. Cooper (2020) 54 Cal.App.5th 106, 112, review granted
Nov. 10, 2020, S264684 [“when a petitioner files a facially sufficient petition requesting
counsel, … the trial court must appoint counsel and give the parties an opportunity to
submit briefing before denying the petition”]; People v. Daniel (2020) 57 Cal.App.5th
666, 673–674, review granted Feb. 24, 2021, S266336 [reiterating conclusion in Cooper
that trial court must appoint counsel for a petitioner who files a facially sufficient petition
before the court denies petition for failure to make prima facie showing of entitlement to
relief].)
But here, we need not decide whether the trial court should have appointed
defendant counsel after he filed his petition because we cannot conclude defendant was
prejudiced by the lack of counsel. As the People note, defendant has not provided a
statement of facts in his opening brief or any other evidence from which we can conclude
the court erroneously determined he was categorically ineligible for relief as the actual
killer who was not convicted under a theory of felony murder or under the natural and
probable consequences doctrine. And we do not agree with defendant’s contention that
any alleged error by the trial court in failing to appoint counsel at this juncture was
structural, requiring per se reversal. Rather, any alleged error by the trial court in failing
to appoint defendant counsel after he filed a petition and prior to the issuance of an order

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to show cause is subject to review for harmless error. (See People v. Cooper, supra, 54
Cal.App.5th at p. 123, review granted [rejecting argument failure to appoint counsel after
petition filing requires per se automatic reversal and instead concluding harmless error
analysis applies]; People v. Daniel, supra, 57 Cal.App.5th at pp. 674–675, review granted
[holding violation of statutory right to counsel upon filing a facially sufficient petition is
not structural error, but instead “susceptible to review for prejudice”]; accord, People v.
Law (2020) 48 Cal.App.5th 811, 826, review granted July 8, 2020, S262490.)
Defendant’s reliance upon People v. Rouse (2016) 245 Cal.App.4th 292 (Rouse) is
misplaced. In Rouse, an incarcerated defendant filed a petition for resentencing pursuant
to section 1170.18 after Proposition 47 reclassified theft of property valued at less than
$950 as misdemeanor shoplifting. (Rouse, at pp. 294–295.) At the hearing on his
petition, the defendant was not present or represented by counsel. (Id. at p. 296.) The
court found the defendant’s petition to be “well taken.” (Ibid.) It permitted the People to
amend the defendant’s commercial burglary charge, granted the defendant’s petition,
vacated the original sentence, and resentenced the defendant. (Ibid.) The Second District
Court of Appeal, Division Eight, concluded the defendant was entitled to the assistance
of counsel at the resentencing hearing on his petition under section 1170.18, subdivision
(a). (Rouse, at p. 301.) The court therefore reversed and remanded for a new
resentencing hearing on that basis. (Ibid.)
The Rouse court did not consider whether a defendant’s right to counsel attaches
at some point before a resentencing hearing is held, as is at issue here. And we have
found no cases, nor does defendant point us to any, that hold a court’s failure to appoint a
petitioner counsel before a hearing under section 1170.95 amounts to structural error.
Thus, Rouse does not assist defendant.
Defendant also argues our court “should not determine harmless error in the first
instance on appeal.” In support, he asserts he “has a statutory right to a hearing in which
the prosecutor bears the burden of proof beyond a reasonable doubt and in which [he] has

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the opportunity to present additional evidence,” and “[t]hat hearing has not yet taken
place.” He asserts permitting our court to “find harmless error based on material in a
court file, makes meaningless the statutory entitlement to present new evidence in
support of the petition.” We are not persuaded.
First, we note defendant only has a “statutory right to a hearing” under section
1170.95 if he has made a prima facie showing of entitlement to relief. (§ 1170.95, subds.
(c)–(d).) Furthermore, other than in the case of structural error, it is the appellant’s
burden on appeal to establish error and prejudice. (See People v. Watson (1956) 46
Cal.2d 818, 834–837; accord, People v. Coley (1997) 52 Cal.App.4th 964, 972 [“An
appellant has the burden to perfect the appeal and to show error and resulting
prejudice”].) And here, defendant has not established prejudice “under any standard of
review.” (People v. Edwards (2020) 48 Cal.App.5th 666, 675, review granted July 8,
2020, S262481, citing Chapman v. California (1967) 386 U.S. 18, 24 [constitutional
error] and People v. Watson, supra, at p. 836 [state law error]; see also People v. Daniel,
supra, 57 Cal.App.5th at p. 678, review granted [applying harmless error standard under
Watson]; People v. Law, supra, 48 Cal.App.5th at p. 826, review granted [applying
harmless beyond a reasonable doubt standard under Chapman].) Rather, nothing in the
record before us suggests the trial court’s conclusion that defendant was categorically
ineligible for relief was erroneous. Indeed, defendant himself does not argue the facts do
not support such a determination. And, we presume the trial court’s order is correct; any
“error must be affirmatively shown.” (People v. Giordano (2007) 42 Cal.4th 644, 666;
accord, In re Julian R. (2009) 47 Cal.4th 487, 498–499 [noting the “‘cardinal principle of
appellate review’: A ‘“‘judgment or order of the lower court is presumed correct[, and
a]ll intendments and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown’”’”]; People v. Stowell (2003) 31
Cal.4th 1107, 1114 [“where a statement of reasons is not required and the record is silent,
a reviewing court will presume the trial court had a proper basis for a particular finding or

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order”]; In re Sade C. (1996) 13 Cal.4th 952, 994 [“An appealed-from judgment or order
is presumed correct”].) Accordingly, because the record before us provides us no basis to
conclude the trial court’s order that defendant was categorically ineligible for relief was
erroneous, we conclude any alleged error by the court in failing to appoint defendant
counsel after he filed his petition was harmless.
We reject defendant’s sole contention.
DISPOSITION
We affirm the court’s order denying defendant’s section 1170.95 petition for
resentencing.

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