Filed 8/18/20 P. v. Sanchez CA2/7
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION SEVEN


THE PEOPLE,                                                 B300319

         Plaintiff and Respondent,                          (Los Angeles County
                                                            Super. Ct. No. BA272661-02)
         v.

BRYAN SANCHEZ,

         Defendant and Appellant.



      APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, George G. Lomeli, Judge. Reversed and
remanded with directions.
      Kathy R. Moreno, 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, Amanda V.
Lopez and David E. Madeo, Deputy Attorneys General, for
Plaintiff and Respondent.
                    ______________________
      Following a lengthy joint jury trial, Bryan Sanchez and
three codefendants were found guilty of the murder of Juan
Monsivais and the attempted premeditated murder of Manuel
De La Rosa in a gang-related drive-by shooting on September 6,
2003. Sanchez was sentenced to an aggregate indeterminate
state prison term of 35 years to life for the murder of Monsivais
and the attempted murder of De La Rosa with the associated
criminal street gang enhancements. On direct appeal this court
affirmed those convictions. (People v. Flores (July 19, 2010,
B211207) [nonpub. opn.].)
      On May 28, 2019 Sanchez petitioned for resentencing
                                     1
under Penal Code section 1170.95 directed to his conviction for
murder. The superior court summarily denied the petition
without first appointing counsel, ruling Sanchez was ineligible
for resentencing because the evidence at trial and our opinion on
appeal demonstrated Sanchez had either aided and abetted the
actual shooter (Rafael Fuentes) with the intent to kill or had
acted as a major participant in the crimes and with a reckless
indifference to human life. The court also ruled Sanchez was not
entitled to relief because section 1170.95 is unconstitutional.
       We reverse the postjudgment order and remand for the
superior court to appoint counsel for Sanchez and to consider his
petition as it relates to his conviction for second degree murder in
accordance with the procedures described in this court’s opinion
in People v. Verdugo (2020) 44 Cal.App.5th 320, review granted
                                         2
March 18, 2020, S260493 (Verdugo). We affirm the order to the

1
      Statutory references are to this code.
2
       The Supreme Court in Verdugo, supra, S260493 ordered
briefing deferred pending its disposition of People v. Lewis (2020)

                                 2
extent it denied relief for the attempted murder conviction for the
reasons set forth in our decision in People v. Lopez (2019)
38 Cal.App.5th 1087, review granted November 13, 2019,
                   3
S258175 (Lopez).
      FACTUAL AND PROCEDURAL BACKGROUND
      1. Sanchez’s Conviction for Murder and Attempted Murder
         a. The drive-by shooting
      As described in our 2010 opinion and a subsequent
nonpublished opinion denying Sanchez’s petition for a writ of
habeas corpus (In re Sanchez (July 23, 2012, B218637)), the
evidence at trial established that Sanchez, his girlfriend Jasmin
Rossier and Fuentes were members of the Red Shield clique of


43 Cal.App.5th 1128, review granted March 18, 2020, S260598.
The Court limited briefing and argument in People v. Lewis 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 Penal Code
section 1170.95? (2) When does the right to appointed counsel
arise under Penal Code section 1170.95, subdivision (c)?”
3
      The Supreme Court in Lopez, supra, S258175 limited
review to the following issues: “(1) Does Senate Bill No. 1437
(Stats. 2018, ch. 1015) apply to attempted murder liability under
the natural and probable consequences doctrine? (2) In order to
convict an aider and abettor of attempted willful, deliberate and
premeditated murder under the natural and probable
consequences doctrine, must a premeditated attempt to murder
have been a natural and probable consequence of the target
offense? In other words, should People v. Favor (2012) 54 Cal.4th
868 be reconsidered in light of Alleyne v. United States (2013)
570 U.S. 99 and People v. Chiu (2014) 59 Cal.4th 155?”


                                3
the 18th Street gang, the largest Hispanic criminal street gang in
the United States. Edgar Flores was a member of the Grandview
clique of the 18th Street gang. The two cliques were known to
cooperate in joint gang activities. The 18th Street gang’s rivals
included the Temple Street gang.
       The principal trial witnesses regarding the drive-by
shooting were Norberto Pacheco, a member of the Red Shield
clique, and Santos and David Kuk, members of the Grandview
clique. On Saturday, September 6, 2003, while members of the
Red Shield and Grandview cliques were drinking beer and
socializing together, someone (Sanchez, according to Pacheco)
suggested they go on a mission to exact revenge against the
Temple Street gang, apparently because one of its members had
assaulted Santos Kuk.
       Sanchez drove a stolen minivan. Rossier, Flores, Fuentes
and Eric Vasquez, another 18th Street gang member, as well as
the Kuk brothers, were inside the minivan. The group traveled
to a commercial location where Pacheco provided them with
two guns and then left the group. Flores took the shotgun, and
Fuentes the rifle.
       At one point the group saw a rival gang member who had
been identified as a target, but Sanchez said not to shoot because
there was a woman with a baby nearby. Sanchez continued to
drive around the neighborhood for several hours looking for
“enemies” to shoot. As the minivan drove past the Kuk brothers’
home, which was in Temple Street gang territory, several
Temple Street gang members were seen drinking across the
street. After some discussion inside the minivan, Fuentes pulled
out the rifle, shouted a derogatory comment and fired repeatedly
out the front passenger side window. Flores tried, but was


                                4
unable, to get the shotgun to fire out the window of the minivan’s
side door. Sanchez then drove the minivan away. Pacheco
testified that Sanchez, Rossier, Flores and Fuentes all spoke to
him after the incident and acknowledged their participation in
the shooting.
       Monsivais, who had been drinking outside his home with
several of his cousins and a friend (at least one of whom was a
Temple Street gang member), was shot and killed by a single
gunshot wound to the back. De La Rosa was hit by bullets in the
chest and hand and spent several days in the hospital after the
shooting.
         b. The trial: instructions and verdict
      In a second amended information Sanchez, Fuentes, Flores,
                     4
Rossier and Pacheco were charged with one count of first degree
murder (§ 187, subd. (a)) and one count of attempted willful,
deliberate and premeditated murder (§§ 664, 187, subd. (a)). The
information specially alleged with respect to these two counts
that the offenses had been committed for the benefit of a criminal
street gang (§ 186.22, subd. (b)), that Fuentes had personally and
intentionally discharged a firearm causing death or great bodily
injury (§ 12022.53, subds. (b)-(d)) and that a principal had
personally discharged a firearm within the meaning of that
section (§ 12022.53, subds. (b)-(e)).
       Using CALCRIM No. 400 the court instructed the jury, in
part, “A person may be guilty of a crime in more than one way.

4
      Prior to trial Pacheco pleaded guilty to voluntary
manslaughter with a provisional sentence of 17 years in state
prison, subject to his agreement to testify truthfully against the
remaining defendants.


                                 5
He or she may have directly committed the crime. I will call that
person the perpetrator. Additionally, he or she may have aided
and abetted a perpetrator, who directly committed the crime. . . .
[¶] Under some specific circumstances, if the evidence
establishes aiding and abetting of one crime, a person may also
be found guilty of other crimes that occurred during the
commission of the crime.”
       Immediately after instructing on the elements necessary to
prove direct aiding and abetting (CALCRIM No. 401), the court
continued, “There is another way in which a person may be guilty
of a crime. [¶] To prove a particular defendant is guilty of
murder as charged in Count 1 and attempted murder as charged
in Count 2 based upon the theory of ‘a natural and probable
consequence,’ the People must prove beyond a reasonable doubt
that: [¶] 1. The defendant committed the crime of assault with a
firearm . . . ; [¶] 2. During the commission of the assault with a
firearm, a coparticipant in that assault with a firearm committed
the crimes of murder and attempted murder, respectively; [¶]
AND [¶] 3. Under all of the circumstances, a reasonable person
in the defendant’s position would have known that the
commission of the murder and attempted murder, respectively
were a natural and probable consequence of the commission of
the assault with a firearm.” (CALCRIM No. 403.)
       The jury found Sanchez, Rossier and Flores guilty of
second degree murder; Fuentes, the shooter, was found guilty of
first degree murder. All four codefendants were convicted of
attempted willful, deliberate and premeditated murder. The jury
found true the allegations both offenses had been committed to
benefit a criminal street gang, but as to Sanchez found not true




                                6
the various firearm-use allegations. These convictions were
                      5
affirmed on appeal.
      2. Senate Bill No. 1437 and Sanchez’s Petition for
         Resentencing
          a. Senate Bill No. 1437 and the section 1170.95 petition
             procedure
       Senate Bill No. 1437 (2017- 2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, amended
the felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder through
amendments to 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.”
       New section 189, subdivision (e), in turn, provides 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, as to those crimes that provide the
basis for the charge of first degree felony murder—that an
individual is liable for murder “only if one of the following is

5
       Sanchez and another gang member, Pedro Aguilar, were
also found guilty of conspiracy to commit murder arising from a
gang-related incident two days after the drive-by shooting. We
reversed the conspiracy convictions because the trial court had
failed to instruct the jury conspiracy to commit assault with a
firearm was a lesser included offense of conspiracy to commit
murder as alleged in the accusatory pleading.



                                 7
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.”
       Senate Bill 1437 also permits, through new section 1170.95,
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 be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime. The petition must include: “(A) A declaration by the
petitioner that he or she is eligible for relief under this section,
based on all the requirements of subdivision (a). [¶] (B) The
superior court case number and year of the petitioner’s conviction.
[¶] (C) Whether the petitioner requests the appointment of
counsel.” (§ 1170.95, subd. (b)(1); see Verdugo, supra,
44 Cal.App.5th at pp. 326-327.)
       If any of this required information “is missing 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).)” (Verdugo, supra,
44 Cal.App.5th at p. 327.) If, however, “the petition contains all
required information, section 1170.95, subdivision (c), prescribes
a two-step process for the court to determine if an order to show
cause should issue: ‘The court shall review the petition and
determine if the petitioner has made a prima facie showing that


                                8
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.’”
(Ibid.)
       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); see Verdugo, supra,
44 Cal.App.5th at p. 327.) At the hearing the prosecution has the
burden of proving beyond a reasonable doubt that 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 to meet their respective burdens.
(See People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review
granted Mar. 18, 2020, S260598.)
          b. Sanchez’s section 1170.95 petition
       In May 2019 Sanchez petitioned for resentencing under
newly enacted section 1170.95. In his petition on the Re:Store
Justice form (see Verdugo, supra, 44 Cal.App.5th at p. 324 &
fn. 2), Sanchez checked boxes declaring an information had been
filed against him allowing the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine; at trial he had been convicted of
first or second degree murder pursuant to the felony-murder rule
or the natural and probable consequences doctrine; and he could
not now be convicted of first or second degree murder because of
the amendments to sections 188 and 189. He also checked the

                                  9
box requesting appointment of counsel for the resentencing
process. The petition did not refer to Sanchez’s conviction for
attempted murder.
      3. The Superior Court’s Ruling Denying the Petition
       The superior court summarily denied Sanchez’s petition
based on its review of “the overall court record.” After briefly
summarizing the statement of facts from our opinion on appeal,
the court explained, “The overall evidence not only reflected that
the petitioner played an active role in the drive-by shooting as
the driver of the stolen minivan which not only facilitated the
shooting, but the escape thereafter, as well as the petitioner’s role
in the planning that preceded the crime in which he specifically
participated in the discussion of the mission that was to occur.
Therefore, it is clear from all the evidence presented that the
petitioner is not entitled to resentencing relief under
[section 1170.95] as he either acted with an intent to kill when he
aided and abetted the murder and attempted murder of the
underlying victims and/or was a major participant who acted
with reckless indifference to human life.”
       As an additional ground for denying the petition, the court
ruled Senate Bill 1437 and section 1170.95 are unconstitutional
because Senate Bill 1437 impermissibly amended two California
initiatives, Propositions 7 (the Death Penalty Act, approved by
the voters in November 1978) and 115 (the Crime Victims Justice
Reform Act, approved by the voters in June 1990); violated the
California Constitution (as amended by Proposition 9 in 2008, the
Victims’ Bill of Rights Act of 2008, commonly known as Marsy’s
Law) insofar as it purported to vacate final judgments in criminal
cases; and violated the separation of powers doctrine by
infringing on core judicial functions.

                                 10
                           DISCUSSION
      1. Section 1170.95 Is Constitutional
      Sanchez contends, and the Attorney General agrees, the
superior court erred in holding, as an independent ground for
denying Sanchez’s petition, that section 1170.95, as enacted
through Senate Bill 1437, was unconstitutional. In a
comprehensive analysis of Propositions 7 and 115 and Senate
Bill 1437, as well as the separation of powers doctrine and
victims’ rights to finality of judgments as protected in Marsy’s
Law, our colleagues in Division Two of the Fourth District in
People v. Johns (2020) 50 Cal.App.5th 46, 54-55 rejected the
reasoning employed by the superior court in this case and held
Senate Bill 1437 is constitutional.
      All other courts of appeal that have considered any of these
grounds for a constitutional attack on Senate Bill 1437 have
likewise rejected them. (See, e.g., People v. Prado (2020)
49 Cal.App.5th 489; People v. Smith (2020) 49 Cal.App.5th 85,
review granted July 22, 2020, S262835; People v. Bucio (2020)
48 Cal.App.5th 300; People v. Solis (2020) 46 Cal.App.5th 762;
People v. Cruz (2020) 46 Cal.App.5th 740; People v. Lamoureux
(2019) 42 Cal.App.5th 241.) We find the reasoning in these cases
compelling and adopt it as our own.
      2. The Superior Court Erred in Ruling Sanchez Was
         Ineligible for Relief as a Matter of Law
      In addition to its flawed constitutional analysis, the
superior court’s denial of Sanchez’s petition as it relates to his
conviction for murder was based on a fundamental
misunderstanding of Senate Bill 1437’s amendments to
sections 188 and 189. As discussed, section 188,



                                  11
subdivision (a)(3), precludes a conviction for murder of anyone
who did not act with “malice aforethought” except in cases of
felony murder, as specified in section 189, subdivision (e), and
specifically prohibits imputing malice based solely on
participation in a crime. Section 189, subdivision (e)(3), however,
provides an aider and abettor of one of the felonies listed in
section 189, subdivision (a), who is not the actual killer, may be
convicted under the felony-murder rule without proof of an intent
to kill (that is, without proof of “malice”) if that person was “a
major participant in the underlying felony and acted with
reckless indifference to human life.” This single exception to the
prohibition of imputing malice applies only to cases tried under
the felony-murder rule, not the natural and probable
consequences doctrine.
       Here, the jury was instructed Sanchez could be found guilty
of Monsivais’s murder if he had directly aided and abetted the
murder—that is, if he knew Fuentes intended to commit murder
and had the specific intent to aid and abet Fuentes in committing
that crime—or had aided and abetted an assault with a firearm
and a reasonable person would have known that the commission
of murder was a natural and probable consequence of that
aggravated assault. There was no felony-murder instruction, nor
could there have been.6



6
      Aggravated assault cannot provide the basis for a charge of
felony murder: “When the underlying felony is assaultive in
nature . . . the felony merges with the homicide and cannot be the
basis for a felony-murder instruction.” (People v. Chun (2009)
45 Cal.4th 1172, 1200; see People v. Bryant (2013) 56 Cal.4th 959,
966.)


                                12
      The superior court was correct that compelling evidence
was presented at trial that Sanchez was guilty of murder as an
aider and abettor under one of the two theories presented to the
    7
jury. But only the former theory survives Senate Bill 1437’s
amendments to the Penal Code.
       As we explained in Verdugo, after receiving a facially
sufficient petition but before appointing counsel for the
petitioner, the superior court may examine the readily available
portions of the record of conviction, including any appellate
opinion affirming the conviction, to determine whether the
petitioner has made a prima facie showing that he or she could
not be convicted of first or second degree murder following the
changes made to sections 188 and 189 and thus falls within the
provisions of section 1170.95. (Verdugo, supra, 44 Cal.App.5th at
pp. 329-330, 332.) We cautioned, however, because at this stage
the court is only evaluating whether there is a prima facie
showing the petition falls within the provisions of the statute, “if
the petitioner’s ineligibility for resentencing under
section 1170.95 is not established as a matter of law by the record

7
       As the superior court observed, in denying Sanchez’s
petition for a writ of habeas corpus based on ineffective
assistance of counsel after issuing an order to show cause, we
concluded his lawyer’s errors were not prejudicial: “[T]he
evidence of Sanchez’s participation in the drive-by shooting was
extremely strong, and his alibi defense unconvincing even
without regard to the harmful effects of Graysen’s errors.
Sanchez was constitutionally entitled to a better defense; but we
are nevertheless convinced, based on our thorough review of the
trial record, he received a fundamentally fair trial and his
convictions for murder and attempted murder are reliable.”
(In re Sanchez, supra, B218637.)


                                 13
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.” (Id. at p. 330.)
       Based on his petition and the available portions of the
record of conviction, Sanchez has made a prima facie showing he
falls within the provisions of section 1170.95. Even if he was a
major participant in an aggravated assault and acted with
reckless indifference to human life, a conviction for murder under
the natural and probable consequences doctrine is no longer
viable. Accordingly, as the Attorney General concedes, Sanchez
is entitled to appointment of counsel and to a determination,
after briefing by both sides, whether he has made a prima facie
showing that he is entitled to relief, as provided in
section 1170.95, subdivision (c).
      3. Section 1170.95 Does Not Apply to Attempted Murder
       In Lopez we held Senate Bill 1437 does not modify the law
of attempted murder, explaining there was nothing ambiguous in
the language of the legislation, which, in addition to omitting any
reference to attempted murder, specifically identifies its purpose
as the need “‘to amend 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.’” (Lopez, supra,
38 Cal.App.5th at p. 1104, quoting Stats. 2018, ch. 1015, § 1,
subd. (f); see People v. Dennis (2020) 47 Cal.App.5th 838, 844,

                                  14
review granted July 29, 2020, S262134 [“Senate Bill 1437 does
not apply to convictions for attempted murder, as opposed to
murder”]; People v. Munoz (2019) 39 Cal.App.5th 738, 753, review
granted Nov. 26, 2019, S258234 [“Senate Bill 1437 does not apply
to the offense of attempted murder”].)
       We added that the Legislature’s obvious intent to exclude
crimes other than murder was underscored by the language of
section 1170.95, which in subdivision (a), “authorizes only those
individuals ‘convicted of felony murder or murder under a
natural and probable consequences theory’ to petition for relief;
and the petition must be directed to ‘the petitioner’s murder
conviction.’ Similarly, section 1170.95, subdivision (d)(1),
authorizes the court to hold a hearing to determine whether to
vacate ‘the murder conviction.’” (Lopez, supra, 38 Cal.App.5th at
pp. 1104-1105.)
       Our colleagues in the Fifth District in People v. Larios
(2019) 42 Cal.App.5th 956, review granted February 26, 2020,
S259983, and People v. Medrano (2019) 42 Cal.App.5th 1001,
review granted March 11, 2020, S259948, disagreed with our
conclusion that Senate Bill 1437’s amendments to sections 188
and 189 do not apply to attempted murder under the natural and
probable consequences theory of liability. (Larios, at pp. 966-967;
Medrano, at p. 1015.) But they, too, agreed “section 1170.95
provides no relief for the crime of attempted murder.” (Larios, at
p. 961; accord, Medrano, at p. 1008.) Sanchez advances no
persuasive reason for us to depart from the reasoning of these
cases.
       Finally, as part of our analysis in Lopez, we also rejected
the argument made by Sanchez that limiting the reform of aider
and abettor liability under the natural and probable


                                15
consequences doctrine to instances where the nontarget offense is
murder violates equal protection. We first held individuals
convicted of murder and those convicted of attempted murder (or
other nontarget offenses) under the natural and probable
consequences doctrine are not similarly situated. (Lopez, supra,
38 Cal.App.5th at pp. 1107-1108.) Even if they were, we
continued, the limitation of Senate Bill 1437 to individuals
convicted of murder under the natural and probable
consequences doctrine is subject to rational basis review (Lopez,
at p. 1110), and constitutionally adequate, plausible reasons exist
for the Legislature’s decision (id. at p. 1111). Nothing in
Sanchez’s briefing indicates the constitutional analysis in Lopez
should be reconsidered.
                         DISPOSITION
       The postjudgment order denying Sanchez’s petition for
resentencing is reversed. The cause is remanded with directions
to appoint counsel for Sanchez and to conduct further proceedings
pursuant to section 1170.95 with respect to Sanchez’s conviction
for second degree murder.




                                     PERLUSS, P. J.


      We concur:



            SEGAL, J.                FEUER, J.




                                16
