Filed 8/15/22 P. v. Delrio 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed.

Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Alan L. Amann and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Jose Carlos Delrio contends the trial court erred in denying his petition for resentencing without appointing him counsel. Although the court was remiss for not affording appellant an attorney, the error was harmless because the record of conviction shows appellant is ineligible for resentencing as a matter of law. We therefore affirm the court’s order.

FACTUAL AND PROCEDURAL BACKGROUND

In 2005, appellant and Alberto Barba confronted rival gang member Francisco Hernandez at a bus stop in Garden Grove. During the confrontation, appellant pulled out a gun and fired it at Hernandez, but the shot went high, and Hernandez fled to safety.

In a joint trial, the Orange County District Attorney prosecuted appellant as the shooter and Barba as his accomplice. Although appellant testified he fired his gun in self-defense, the jury found him guilty of attempted premeditated murder, discharging a firearm in a school zone and street terrorism. It also found he acted to benefit his gang and personally discharged a firearm. The verdict against Barba was the same, except the jury convicted him of attempted murder without premeditation and found he was vicariously armed. Appellant was sentenced to 35 years to life in prison, and Barba got 25 years. We affirmed the judgment on appeal. (People v. Delrio, et al. (Mar. 27, 2009, G038771) [nonpub. opn.].)

In 2021, appellant sought resentencing pursuant to Penal Code section 1170.95.[1] In his petition, appellant alleged he was convicted of attempted murder under the natural and probable consequences doctrine. He also requested an attorney and an evidentiary hearing on the matter. Without obliging either request, the trial court denied the petition for failure to state a prima facie case. The court determined appellant was legally ineligible for resentencing because 1) he was not convicted of murder, and 2) he was not convicted pursuant to the natural and probable consequences doctrine or the felony murder rule.

DISCUSSION

Appellant contends the trial court erred in denying his petition without appointing him an attorney and conducting an evidentiary hearing. Appellant’s point about the lack of counsel is well taken. Nevertheless, he is not entitled to relief because the trial court’s failure to appoint him an attorney was patently harmless under the circumstances presented.

Appellant’s claim is rooted in Senate Bill No. 1437 (SB 1437), which narrowed the scope of vicarious liability for the crime of murder in two ways. First, the bill eliminated the natural and probable consequences theory for the crime of murder by providing, “Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Second, SB 1437 reined in the felony murder rule so that it can only be applied in limited circumstances. (§ 189, subd. (e).)

SB 1437 also created a statutory procedure, codified in section 1170.95, by which defendants who have been convicted of murder based on the felony murder rule or the natural and probable consequences doctrine may petition for vacatur and resentencing if their conduct did not constitute murder as redefined by SB 1437. If the defendant’s petition makes a prima facie showing to that effect, the trial court must issue an order to show cause and, absent a concession by the prosecution, conduct an evidentiary hearing. (§ 1170.95, subds. (c), (d).) At the hearing, the prosecution must prove beyond a reasonable doubt the defendant is ineligible for resentencing. (Id., subd. (d)(3).) Otherwise, the court must vacate his murder conviction and resentence him per the terms of section 1170.95.

As originally enacted, section 1170.95 applied only to defendants who were convicted of murder. (Former § 1170.95, subd. (a).) This version of the statute was in effect at the time the trial court denied appellant’s petition for resentencing in 2021.

However, effective January 1, 2022, Senate Bill No. 775 (SB 775) expanded the statute to include defendants who were convicted of attempted murder under the natural and probable consequences doctrine. (§ 1170.95, subd. (a), as amended by Stats. 2021, ch. 551.) As respondent concedes, this change applies to appellant’s case because the order denying his petition for resentencing is not yet final. (In re Estrada (1965) 63 Cal.2d 740, 744-745 [an ameliorative criminal statute is generally presumed to apply to all cases that are not final when the statute becomes effective]; People v. Montes (2021) 71 Cal.App.5th 1001, 1006-1007 [applying SB 775 retroactively].) However, under the rules established in People v. Lewis (2021) 11 Cal.5th 952 (Lewis) for adjudicating a section 1170.95 petition, appellant is still not entitled to resentencing relief.

In Lewis, our Supreme Court held that when the petitioner requests an attorney in conjunction with a facially sufficient petition for resentencing, the trial court must allow input from counsel before considering whether the petitioner established a prima facie case for relief. (Lewis, supra, 11 Cal.5th at pp. 961-970.) However, the failure to appoint counsel is not reversible per se. Rather, “a petitioner ‘whose petition is denied before an order to show cause issues has the burden of showing “it is reasonably probable that if [he or she] had been afforded assistance of counsel his [or her] petition would not have been summarily denied without an evidentiary hearing.”’ [Citation.]” (Id. at p. 974.)

Beyond addressing the right to counsel, Lewis ruled the trial court may rely on the record of conviction in deciding whether the petitioner has made a prima facie showing for relief. (Lewis, supra, 11 Cal.5th at pp. 970-972.) That doesn’t mean the trial court assumes a factfinding role in the proceedings. Indeed, Lewis emphasized the trial court “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ [Citation.]” (Id. at p. 972.) But if the record of conviction demonstrates the petitioner is ineligible for relief as a matter of law, the trial court may deny his petition for resentencing without issuing an order to show cause and conducting an evidentiary hearing. (Id. at p. 971.)

Viewing appellant’s claim through the lens of SB 775 and Lewis, he did file a facially sufficient petition for resentencing and was thus entitled to the appointment of an attorney. However, the record of conviction makes clear he was convicted of attempted premeditated murder as the direct perpetrator of that offense. While the prosecution relied on the natural and probable consequences theory of aiding and abetting to obtain codefendant Barba’s conviction for attempted murder, that theory was limited to Barba. It did not pertain to appellant, who admitted he was the shooter and was found by the jury to have personally discharged a firearm with the willful, deliberate and premeditated intent to kill, i.e., malice.

In light of these findings, appellant is outside the scope of section 1170.95. (People v. Verdugo (2020) 44 Cal.App.5th 320, overruled on other grounds in Lewis, supra, 11 Cal.5th at pp. 961-962 [defendant statutorily ineligible for resentencing where record of conviction showed he murdered the victim with express malice and was not convicted under the natural and probable consequences doctrine]; People v. Cornelius (2020) 44 Cal.App.5th 54, review granted March 18, 2020, S260410 [affirming the summary denial of a resentencing petition where the record of conviction showed the defendant personally murdered the victim with a firearm].) Therefore, he was not entitled to an evidentiary hearing, and it is immaterial the trial court failed to appoint him an attorney in conjunction with his request for resentencing. Because it is not reasonably probable appellant would have obtained a better result had he been provided counsel, there is no basis for disturbing the trial court’s ruling.

DISPOSITION

The trial court’s order denying appellant’s petition for resentencing is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

GOETHALS, J.

SANCHEZ, J.

[1] That section has since been renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.) However, because that change was nonsubstantive and it occurred after briefing in this case was complete, we will cite to Penal Code section 1170.95 for ease of reference. All further statutory references are to the Penal Code.