P. v. Poncio

Filed 8/4/20 P. v. Poncio CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
KARINA LISSETH PONCIO,
Defendant and Appellant.
G057709
(Super. Ct. No. 00CF3110)
O P I N I O N
Appeal from an order of the Superior Court of Orange County, Kimberly
Menninger, Judge. Affirmed.
Mark Alan Hart, 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, Amanda V. Lopez
and Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
Karina Lisseth Poncio appeals from an order denying her petition for
resentencing under newly enacted subdivisions of Penal Code sections 188 and 190,1
which severely curtailed the application of the felony murder and natural and probable
consequences doctrines in murder cases. Poncio was convicted in 2002 of first degree
murder for driving the car involved in a fatal shooting of a rival gang member in another
car. We affirmed the conviction in 2005 in an unpublished opinion.2
In 2019, Poncio filed a petition under section 1170.95 for resentencing,
claiming that she could not be convicted of first degree murder under the new
subdivisions. She asked for court-appointed counsel during the process. The trial court
summarily denied the petition, without a hearing or appointment of counsel, on the
grounds that the petition did not present a prima facie case for relief.
Poncio has appealed on two grounds. She says she stated a prima facie
case for relief, and the court erred in failing to appoint counsel and to hold a hearing.
We affirm the order denying Poncio’s petition. She was not convicted of
first degree murder on felony murder or natural and probable consequences grounds. She
was convicted based on proof of her own intent to kill and to assist another in killing.
Therefore she did not make a prima facie showing of eligibility for relief under section
1170.96. Because she was ineligible as a matter of law for relief, the court was not
required to appoint counsel for her.
FACTS
We reiterate the underlying facts as set forth in our prior opinion. On May
5, 2000, Juan Villa, Juan Guillen and other members of the Alley Boys gang attended a
party in Santa Ana. Villa and Guillen left to get more beer. When they did, Villa noticed
1 All further statutory references are to the Penal Code.
2
People v. Alarcon and Poncio (Jan. 5, 2005, G031767) [nonpub. opn.].

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a woman, Poncio, sitting in the driver’s seat of a nearby car. Villa did not know who she
was or that she was a member of a rival gang, Delhi. As he and Guillen began to drive
away, Poncio pulled her car alongside theirs. Villa stopped to see what she wanted, but
she did not say anything. Instead, [Jorge] Alarcon popped up from the floor of Poncio’s
back seat and started shooting at Villa and Guillen. Villa ducked down and drove off, but
Poncio kept pace with him, and Alarcon kept firing until Villa pulled over. Villa suffered
a gunshot wound to his left shoulder, and Guillen was fatally shot in the head during the
attack.
The jury found Poncio guilty of first degree murder (§ 187, subd. (a)) and
made several additional findings. The murder was committed by discharging a firearm
from a motor vehicle. (§ 190.2, subd. (a)(21).) She killed the victim while an active
participant in a criminal street gang. She committed the crime to benefit the gang.
(§ 190.2, subd. (a)(22). ) She engaged in street terrorism. (§ 186.22, subd. (a).) We
upheld the conviction, reversing only the sentence enhancement under section 12022.53.
In 2019, Poncio filed a form petition for resentencing under section
1170.95. She checked boxes alleging she was not the actual killer, she did not assist the
actual killer with intent to kill, and she was not a major participant in the felony. She also
checked the box asking the “court [to] appoint counsel for [her] during this re-sentencing
process.”
The court denied the petition without holding a hearing or appointing
counsel. The court ruled that “[t]he petition does not set forth a prima facie case for relief
under the statute. A review of court records indicates [Poncio] is not eligible for relief
under the statute because [Poncio] does not stand convicted of murder or [Poncio’s]
murder conviction(s) is not based on felony-murder or on a natural and probable
consequences theory of vicarious liability for aiders and abettors.”
DISCUSSION

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Poncio has asserted two grounds of error. First, analogizing to habeas
corpus procedure, she says she stated a prima facie case for relief by checking the boxes
denying that she was the killer, that she assisted the killer with the required intent, and
that she was a major participant. She asserts that the trial court had to assume the truth of
these allegations. Second, she believes the court erred by not appointing counsel
immediately and holding a hearing.
Section 1170.95, subdivision (c), 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.”
We review issues of statutory interpretation de novo. (People v. Prunty
(2015) 62 Cal.4th 59, 71.)
I. Prima Facie Showing
Poncio argues that she fulfilled the requirement of a prima facie showing by
checking the appropriate boxes in the form. She asserts that the court may not go beyond
the facts stated in the petition when it rules on eligibility. In other words, it may not
examine the court records.
We address the second contention first. Whether the court may go beyond
the petition itself and look at court records in currently the subject of review in our
Supreme Court. People v. Verdugo (2020) 44 Cal.App.5th 320, review granted March
18, 2020, S260493 (Verdugo); People v. Cornelius (2020) 44 Cal.App.5th 54, review
granted March 18, 2020, S260410 (Cornelius); and People v. Lewis (2020) 43
Cal.App.5th 1128, review granted March 18, 2020, S260598 (Lewis) all raise this issue.

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In all three cases, the appellate court held that the trial court could consider the court
records when it ruled on eligibility. (Lewis, supra, 43 Cal.App.5th at p. 1138; Verdugo,
supra, 44 Cal.App.5th at p. 329; Cornelius, supra, 44 Cal.App.5th at p. 57.) Lewis and
Verdugo went further, holding that the trial court could consider a prior appellate opinion
from the defendant’s direct appeal in making this determination. (Lewis, supra, 43
Cal.App.5th at p. 1138; Verdugo, supra, 44 Cal.App.5th at p. 333.)
Section 1170.95, subdivision (a), provides: “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 when all of the following
conditions apply: [¶] (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. [¶] (3) The petitioner could not be convicted of first or second degree
murder because of changes to [s]ection 188 or 189 made effective January 1, 2019.”
The first two subsections of section 1170.95, subdivision (a), refer to
documents in the file. It would make no sense at all for the court to close its eyes to these
documents (complaint, jury verdict, etc.) and instead rely entirely on the petitioner’s
characterization of them, especially when consulting them could quickly settle the
eligibility question. Did the information allow the prosecution to proceed under a theory
of felony murder? Was the petitioner convicted of first or second degree murder?
We agree with the courts who have held that the court could look to court
records outside the petition when it made its initial ruling on eligibility.
As to what constitutes a prima facie showing, the court in People v.
Tarkington (2020) 49 Cal.App.5th 892 (Tarkington) recently dealt with this question.

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After a thorough discussion of legislative history behind the amendments to sections 188
and 189 and the enactment of section 1170.95, the court explained that section 1170.95
sets up a two-step review process for the resentencing petition.3
The first step is a
“‘preliminary review of statutory eligibility for resentencing,’ akin to the procedure
employed in a Proposition 36 or Proposition 47 context. [Citations.]” (Id. at pp. 897-
898.) During this review, “[t]he court must determine, 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 as a matter of law, i.e., whether he was
convicted of first or second degree murder based on a charging document that permitted
the prosecution to proceed under the natural and probable consequences doctrine or a
felony-murder theory. [Citation.] If not, the court can dismiss any petition filed by an
ineligible individual. [Citation.]” (Id. at p. 898.)
If the court cannot determine ineligibility as a matter of law, the case
proceeds to the next prima facie showing. It is at this stage that briefing occurs and
counsel for the petitioner would be appointed if requested. “In this second prima facie
evaluation, the court employs the familiar standard for issuance of an order to show cause
in a habeas corpus proceeding. That is, the court must take petitioner’s factual
allegations as true and make a preliminary assessment regarding whether he or she would
be entitled to relief if the factual allegations were proved. [Citations.]” (Tarkington,
supra, 49 Cal.App.5th at p. 898.)
Poncio was convicted of first degree murder under section 189, subdivision
(a), which includes “murder that 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” as first degree murder. The charging allegations make no mention of felony
murder or natural and probable consequences as a basis for guilt. The jury also found
3
It is perhaps unfortunate that the statute uses the term “prima facie showing” to refer to both steps.

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true the special circumstances of shooting at a person in a vehicle and active participation
in a street gang (§190.2, subd. (a)(21), (22)), both of which require intent to kill.
By contrast, natural and probable consequences liability “‘is not premised
upon the intention of the aider and abettor to commit the nontarget offense because the
nontarget offense was not intended at all. It imposes vicarious liability for any offense
committed by the direct perpetrator that is a natural and probable consequence of the
target offense. [Citation.] Because the nontarget offense is unintended, the mens rea of
the aider and abettor with respect to that offense is irrelevant and culpability is imposed
simply because a reasonable person could have foreseen the commission of the nontarget
crime.’ [Citation.]” (People v. Chiu (2014) 59 Cal.4th 155, 164, superseded by statute
on other grounds.) Felony murder liability applies to a person who aids and abets a
felony in the course of which a murder is committed by others but who “‘does not
himself kill, attempt to kill, or intend that a killing take place or that lethal force will be
employed.’ [Citations.]” (People v. Contreras (2013) 58 Cal.4th 123, 163.)
As the Tarkington court pointed out, sections 188 and 189 were amended
so that murder liability would not be “‘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.’ [Citation.]” (Tarkington, supra, 49
Cal.App.5th at p. 896.) The Legislature further explained that “[i]t is a bedrock principle
of the law and of equity that a person should be punished for his or her actions according
to his or her own level of individual culpability.” (Stats. 2018, ch. 1015, § 1, subds. (b),
(d).) “Reform is needed in California to limit convictions and subsequent sentencing so
that the law of California fairly addresses the culpability of the individual and assists in
the reduction of prison overcrowding, which partially results from lengthy sentences that
are not commensurate with the culpability of the individual.” (Id., subd. (e).) “A
person’s culpability for murder must be premised upon that person’s own actions and
subjective mens rea.” (Id., subds. (f), (g).)

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The jury found that Poncio had her own separate intent to kill. She drove
the car used in the murder. She enabled Alarcon to get close to the victims to surprise
them and to give him a better shot. She pursued the victims after they fled, allowing
Alarcon to continue trying to kill them. She clearly “aided” and “abetted” the actual
killer with intent to kill and was a “major participant” in the crime. (§ 189, subd. (e)(2),
(3).) 4
Her conviction rested neither on felony murder nor on the natural and probable
consequences doctrine. She was ineligible for relief under section 1170.95 as a matter of
law.
II. Appointment of Counsel
Poncio argues that section 1170.95, subdivision (c), requires the trial court
to appoint counsel at the very beginning of the petitioning process, before determining
whether she made the first prima facie showing. Pending different instruction from our
Supreme Court, we agree with the cases that have held otherwise.
Since its enactment, the question of when the statute requires the court to
appoint counsel for a petitioner has arisen frequently. Is the appointment of counsel
required before or after (and only if) the court determines whether the petitioner has made
the first prima facie showing of eligibility? The three cases on review in the Supreme
Court – Verdugo, Cornelius, and Lewis – all deal with this issue as well.
In accordance with other courts that have examined this question, we hold
that the appointment of counsel is required only after the petitioner has cleared the first
hurdle of a prima facie showing. (See Tarkington, supra, 49 Cal.App.5th at pp. 899-900,
and cases cited therein.) “‘It would be a gross misuse of judicial resources to require the
4
Section 189, subdivision (e), 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 [s]ection 190.2.”

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issuance of an order to show cause or even appointment of counsel based solely on the
allegations of the petition, which frequently are erroneous, when even a cursory review of

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the court file would show as a matter of law that the petitioner is not eligible for relief.’
. . . [Citation.]” (Lewis, supra, 43 Cal.App.5th at p. 1138.)
In this case, Poncio was convicted of first degree murder based on her
intent. Her culpability was premised on her own actions and mens rea, not on the
circumstance of having been in the vicinity intending something else when a murder was
committed. The amendments of section 188 and 189 and the petitioning process of
section 1170.95 were not enacted for her.
DISPOSITION
The order denying the petition is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.

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