 Filed 8/13/20
                 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                           DIVISION FIVE


 THE PEOPLE,                          B299844

      Plaintiff and                   (Los Angeles County
 Respondent,                          Super. Ct. No. BA233758)

        v.

 PATRICK JAMES SANTOS,

      Defendant and
 Appellant.


      APPEAL from an order of the Superior Court of Los
 Angeles County, George G. Lomeli, Judge. Reversed and
 remanded.
      Allen G. Weinberg, under appointment by the Court of
 Appeal, for Defendant and Appellant.



        Pursuant to California Rules of Court, rules 8.1100
        *

 and 8.1110, this opinion is certified for publication with the
 exception of parts II.A and II.B.
     Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Charles S. Lee and John
Yang, Deputy Attorneys General, for Plaintiff and
Respondent.
                __________________________

       Defendant and appellant Patrick James Santos appeals
from a postjudgment order denying his petition for
resentencing pursuant to Penal Code section 1170.951 and
Senate Bill No. 1437 (Senate Bill 1437). As relevant here,
the statute and Senate bill provide for vacatur of a
defendant’s murder conviction and resentencing if the
defendant was convicted of felony murder and the defendant
(1) was not the actual killer, (2) did not act with the intent to
kill, and (3) was not a major participant who acted with
reckless indifference to human life. (§ 189, subd. (e)(3).)
       Santos contends the judge erred by ruling on the
petition although he was not the judge who sentenced Santos
in the underlying matter, and by summarily denying
Santos’s petition because (1) Senate Bill 1437 and section
1170.95 are unconstitutional, and (2) Santos failed to make a
prima facie showing of eligibility.
       The People agree that section 1170.95 and Senate Bill
1437 are not unconstitutional and that Santos made a prima
facie showing of eligibility for resentencing, but argue that

     1 All further statutory references are to the Penal Code
unless otherwise indicated.



                               2
1170.95 does not require the original sentencing judge to
rule on the petition.
      We reverse and remand for further proceedings
consistent with section 1170.95 and this opinion.

               I. PROCEDURAL HISTORY2

A. Murder Conviction

      In 2005, Santos was convicted of first degree murder
under a felony murder theory of liability. (§ 187, subd. (a).)
The jury found true firearm allegations (§ 12022.53, subds.
(b)–(e)), and the allegation that Santos committed the crime
for the benefit of a criminal street gang (§ 186.22, subd.
(b)(1)). On November 1, 2005, Judge Michael Pastor
sentenced Santos to a term of 25 years to life in prison, plus
a consecutive 25-year-to-life term for the firearm
enhancement.
      We affirmed the conviction in People v. Santos (2007)
147 Cal.App.4th 965.




     2  We do not include a recitation of the underlying facts
of the offense, as the facts are not necessary to our resolution
of the issues.



                               3
B. Section 1170.95 Petitions for Resentencing

     1. First Petition for Resentencing

      On January 2, 2019, Santos petitioned for resentencing
under section 1170.95. He declared that he met all of the
requirements for section 1170.95 and was eligible for relief.
Santos further declared that he was not a “major
participant” in the murder and did not act with “reckless
indifference.” He requested that counsel be appointed to
him.
      On March 1, 2019, the People opposed the petition.
      On March 11, 2019, the People obtained a continuance
to May 2, 2019.
      On March 27, 2019, outside the presence of the parties,
Judge George Lomeli of Department 107 denied the petition
by written order, finding “[f]rom review of the overall record”
that Santos was a major participant who acted with reckless
indifference for human life, and therefore ineligible for
resentencing. As an independent ground for denial, Judge
Lomeli found that Senate Bill 1437 was unconstitutional
because it impermissibly amended voter initiatives
Proposition 7 and Proposition 115, violated Article 1, section
28, subdivision (a)(6) and Article 1, section 29 of the
California Constitution, and violated the California
separation of powers doctrine.3

     3 The court appointed counsel, but counsel had not filed
a reply at the time Judge Lomeli issued the ruling.



                               4
     2. Second Petition for Resentencing

       On April 23, 2019, Santos, with the assistance of
counsel, filed a second petition for resentencing, and then a
memorandum of points and authorities, on May 28, 2019, in
Department 110, where Judge Pastor (the original
sentencing judge) was assigned. Counsel argued that the
first petition was not properly before Judge Lomeli, as
section 1170.95, subdivision (b)(1) requires that the petition
be ruled upon by the sentencing judge if that judge is
available. Judge Pastor had sentenced Santos and was not
unavailable.
       On June 11, 2019, Judge Lomeli advanced the matter
and denied the second petition for resentencing outside the
presence of counsel for the reasons stated in the March 27,
2019 denial, and also found that the “original petition was
indeed heard before ‘the court that sentenced the petitioner,’
specifically Department 107, and further, that the
supervising judge has designated the bench officer presently
in that department to rule on the petition as provided for
under Penal Code section 1170.95 (b)(1).”4



     4 We understand the court’s ruling to state the
presiding judge’s designation of the case to Judge Lomeli’s
department was made based upon an interpretation of the
statute that cases must go to the department where the
conviction occurred; the designation was not based upon
Judge Pastor’s unavailability.



                              5
      Counsel requested to address the court, and he was
permitted to do so in a hearing on July 2, 2019. At the
hearing, counsel argued that the plain language of a portion
of section 1170.95, subdivision (b)(1)—“If the judge that
originally sentenced the petitioner is not available to
resentence the petitioner, the presiding judge shall designate
another judge to rule on the petition”—meant that the
presiding judge must assign the original sentencing judge to
rule on the matter unless that judge was unavailable.
Counsel argued that Judge Pastor was right down the
hallway in Department 110, and therefore available to rule
on the petition. The court reiterated and adopted its March
23, 2019 ruling and stated that “[f]ollowing careful
consideration of the language contained in the underlying
statute, this court is of the opinion that the original petition
was indeed heard as the statute provides by the court that
sentenced the petitioner, Department 107, which is Judge
Pastor’s former court.” The court added that “[t]he
Supervising Judge of the Los Angeles Superior Court
Criminal Division has designated this bench officer, this
court, presently presiding in Department 107 to rule on the
petition as provided for under the Penal Code.”

                      II. DISCUSSION

      On appeal, the parties agree that Senate Bill 1437 and
section 1170.95 are not unconstitutional and do not violate
the separation of powers doctrine. The parties also agree




                               6
that Santos “made a prima facie showing that [he] falls
within the provisions of . . . section [1170.95].” The only
point of disagreement is whether the court also erred in
assigning the matter to Judge Lomeli, rather than Judge
Pastor, and whether, on remand, section 1170.95 requires
that the case be heard by the court that sentenced Santos, or
by the judge who sentenced him.
      We agree with the parties that the trial court erred in
denying Santos’s petition based on the constitutional
challenges to Senate Bill 1437 and section 1170.95 and on
the the merits of Santos’s petition. Further, we interpret the
statute to require the judge who originally sentenced the
petitioner to rule on the petition, unless that judge is
unavailable. (§ 1170.95, subd. (b)(1).) Here, the record
contains no evidence that Judge Pastor was unavailable. We
therefore reverse and remand for further proceedings
consistent with this opinion.

A. Constitutionality

      The trial court denied Santos’s petition on the grounds
that Senate Bill 1437 was unconstitutional because it
impermissibly amended voter initiatives Proposition 7 and
Proposition 115; violated Article 1, section 28, subdivision
(a)(6), and Article 1, section 29 of the California
Constitution; and violated the California separation of
powers doctrine.




                              7
      We agree with the parties that this was error.
Multiple courts of appeal have held that Senate Bill 1437 is
not unconstitutional for any of these reasons, and we know
of no court that has diverged from these cases. (People v.
Nash (Aug. 3, 2020, F079509) ___Cal.App.5th ___ [2020 WL
4461245]; People v. Superior Court of Butte County (2020) 51
Cal.App.5th 896; People v. Lopez (2020) 51 Cal.App.5th 589;
People v. Alaybue (2020) 51 Cal.App.5th 207; People v. Johns
(2020) 50 Cal.App.5th 46; People v. Bucio (2020) 48
Cal.App.5th 300; People v. Solis (2020) 46 Cal.App.5th 762,
774–780; People v. Cruz (2020) 46 Cal.App.5th 740, 753–759;
People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270,
280–284; People v. Lamoureux (2019) 42 Cal.App.5th 241,
250–251.) We concur with the results reached in these
cases, and as the parties are also in agreement, we do not
address the issue further here.

B. Merits

      Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of
murder under a felony murder theory of liability could
petition to have his conviction vacated and be resentenced.
Section 1170.95 initially requires a court to determine
whether a petitioner has made a prima facie showing that he
or she falls within the provisions of the statute as set forth in
subdivision (a), including that “(1) [a] complaint,
information, or indictment was filed against the petitioner




                               8
that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable
consequences doctrine[,] [¶] (2) [t]he 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) [t]he petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or
189 made effective January 1, 2019.” (See § 1170.95, subd.
(c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review
granted Mar. 18, 2020, S260493 (Verdugo).) If it is clear
from the record of conviction that the petitioner cannot
establish eligibility as a matter of law, the trial court may
deny the petition.5 (Verdugo, supra, 44 Cal.App.5th at
p. 330.) Determinations of eligibility that require an
assessment of the evidence concerning the commission of the
petitioner’s offense, however, mandate that the trial court
appoint counsel and permit the filing of the submissions
contemplated by section 1170.95. (Id. at p. 332; Lewis,

     5  For example, if the jury was not instructed on a
natural and probable consequences or felony murder theory
of liability, the petitioner could not demonstrate eligibility as
a matter of law because relief is restricted to persons
convicted under one of those two theories. (See People v.
Lewis (2020) 43 Cal.App.5th 1128, 1138–1139, review
granted Mar. 18, 2020, S260598 (Lewis) [appellate court
opinion holding that jury convicted defendant of murder as a
direct aider and abettor barred defendant from relief as a
matter of law].)



                               9
supra, 43 Cal.App.5th at p. 1140.) “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.” (§ 1170.95, subd.
(c).)
      In this case, prior to briefing by petitioner’s counsel,
the trial court concluded that “the overall record” precluded
Santos from showing that he was not a major participant in
the robbery and did not act with reckless indifference to
human life. We conclude the record provides no basis for
such a determination as a matter of law. Where a petitioner
is not ineligible as a matter of law, the court is not permitted
to deny the petition based upon an analysis of the facts until
the petitioner has had an opportunity to reply to the People’s
response, with the aid of counsel if requested. (People v.
Smith (2020) 49 Cal.App.5th 85, 95, review granted July 22,
2020, No. S262835.) This is because “[the] factual record is
not the only consideration that the trial court must take into
account for purposes of section 1170.95. Where the record of
conviction does not preclude a petitioner from making a
prima facie showing that he falls within the statute’s
provisions as a matter of law, the petitioner is not confined
to presenting evidence contained in the record of conviction
in seeking relief. Section 1170.95 provides ‘the petitioner
may rely on the record of conviction or offer new or
additional evidence to meet [his] burden[].’ (§ 1170, subd.
(d)(3).)” (Ibid.)
      Because neither of the trial court’s reasons for denying
Santos’s petition is valid, and it does not appear that he is




                              10
otherwise ineligible for relief as a matter of law, we conclude
that the trial court erred in summarily denying the petition.

C. Original Sentencing Judge

      The parties’ only points of disagreement arise from the
following language in section 1170.95, subdivision (b)(1):
      “The petition shall be filed with the court that
sentenced the petitioner . . . . If the judge that originally
sentenced the petitioner is not available to resentence the
petitioner, the presiding judge shall designate another judge
to rule on the petition.” (Italics added.)
      The parties deem two terms to be of critical
importance—“judge” and “available.” Our inquiry focuses
principally on the first of these terms, however, as this was
the basis for the trial court’s denial. The court interpreted
the term “judge” to mean “court,” and concluded that the
matter had been assigned to the same “judge” (a.k.a. “court”)
that had sentenced Santos—Department 107. The People
argue that the trial court’s interpretation was correct:
section 1170.95, subdivision (b)(1) requires that a petition be
heard by the judge presiding in the Department where the
petitioner had previously been sentenced, regardless of
whether that judge was the same person who sentenced the
petitioner. Santos argues that “judge” means the individual




                              11
judge who originally sentenced him. We believe that Santos
has the better view.6
       “We conduct a de novo review of questions of statutory
interpretation. [Citation.] The fundamental task of
statutory interpretation is to determine the Legislature’s
intent so as to effectuate the law’s purpose. [Citation.] ‘We
begin with the statute’s text, assigning the relevant terms
their ordinary meaning, while also taking account of any
related provisions and the overall structure of the statutory
scheme. [Citation.] Essential is whether our interpretation,
as well as the consequences flowing therefrom, advances the
Legislature’s intended purpose. [Citation.]’ [Citation.]
‘“Ordinarily, where the Legislature uses a different word or
phrase in one part of a statute than it does in other sections
or in a similar statute concerning a related subject, it must
be presumed that the Legislature intended a different
meaning. [Citation.]” [Citation.]’ [Citation.]” (People v.
White (2016) 3 Cal.App.5th 433, 446–447.)
       We begin by considering the ordinary meaning of the
language of section 1170.95, subdivision (b)(1). The
Merriam-Webster Dictionary defines “judge” as “a public
official authorized to decide questions brought before a


     6 Both parties focus their arguments on People v.
Rodriguez (2016) 1 Cal.5th 676 (Rodriguez), but in that case
the Supreme Court did not consider whether the term
“judge” meant “judge” or “court”; there it was presumed by
the court and the parties that the word “judge” meant the
public official and not the tribunal.



                              12
court.” (Merriam-Webster <http://www.merriam-
webster.com> [as of July 24, 2020].) It defines “court” as “a
place (such as a chamber) for the administration of justice.”
(Ibid.) The term “court” can also mean “a judge or judges in
session.” (Ibid.) The dictionary does not contain a definition
of “judge” that includes the tribunal. Accordingly, the plain
language of the statute leads us to conclude that “judge”
means the public official.
       Additionally, section 1170.95, subdivision (b)(1)
employs both the term “court” and the term “judge”.
Following the canons of statutory construction, we assume
that the Legislature intended the terms to have separate
meanings. Both words may be used to indicate an individual
public official in the judiciary, but only “court” may be used
to indicate the tribunal. To give the terms distinct
meanings, we necessarily conclude that the Legislature
intended that “court” refer to the tribunal and “judge” refer
to the public official. We find no merit in the People’s
argument that the requirement that the petition be filed
with the original sentencing court indicates that the
Legislature was referring to the court that sentenced
petitioner later in the subdivision when it used the word
“judge.” The requirements are distinct and directed to
different individuals: The statute directs the petitioner to
file the petition with the original sentencing court; the
statute directs the presiding judge of the sentencing court to
designate the judge who sentenced petitioner to rule on the
filed petition, unless that judge is not available.




                             13
       Finally, the literal meaning of the word “judge” is
compatible with the purpose of Senate Bill 1437, which “was
enacted[, in part] to correct the unfairness of the felony
murder rule . . . .” (People v. Cervantes (2020) 44
Cal.App.5th 884, 887.) We reject the People’s contention
that “the original sentencing judge’s familiarity with the
underlying facts is of marginal importance” and “has no
import to” a petitioner’s resentencing. In many cases,
including this one, the resentencing court may need to
determine whether the petitioner was a “major participant”
in the underlying felony that resulted in murder, and
determine whether the petitioner acted with “reckless
indifference to human life” in commission of the crime.
Although both the petitioner and the prosecution are
permitted to present additional evidence beyond that
introduced at the time of conviction, a judge who is familiar
with the facts, evidence, and law already part of the record is
better equipped to rule on a petition than a different judge,
unfamiliar with the case, who is reviewing a cold record.
(See, e.g., People v. Rodriguez (2016) 1 Cal.5th 676, 690
[relitigation of a suppression motion]; Francis v. Superior
Court of Los Angeles County (1935) 3 Cal.2d 19, 28–29
[motion for new trial pursuant to Civil Code, § 661].) The
Legislature’s intent is best served when the outcome of the
petition is determined by a judge who is particularly well-
placed to take all the facts and circumstances of the
underlying case into account.




                              14
       For all of these reasons, we conclude that the court
incorrectly construed section 1170.95, subdivision (b)(1)
when it interpreted “the judge that originally sentenced the
petitioner” to mean the tribunal that sentenced the
petitioner, rather than the individual public official.
       In seeking affirmance of the prior assignment of
Santos’s petition to Judge Lomeli rather than Judge Pastor,
the People also argue that the phrase “not available” must
be broadly interpreted to give a presiding judge latitude in
assigning specific cases to specific trial judges. We are
skeptical that the mere fact that a different bench officer is
sitting in the original sentencing judge’s prior courtroom
when the petition is filed satisfies the statutory requirement
of unavailability. (See, e.g., People v. Rodriguez (2016) 1
Cal.5th 676, 692 [“a showing of more than mere
inconvenience is necessary before a judge can be deemed
unavailable”]; People v. Arbuckle (1978) 22 Cal.3d 749, 757,
fn. 5 [“We recognize that in multi-judge courts, a judge
hearing criminal cases one month may be assigned to other
departments in subsequent months. However a defendant’s
reasonable expectation of having his sentence imposed,
pursuant to bargain and guilty plea, by the judge who took
his plea and ordered sentence reports should not be
thwarted for mere administrative convenience”].) But the
record here contains no evidence that the presiding judge
made any determination about Judge Pastor’s
unavailability; rather, the assignment to Judge Lomeli was
based on the incorrect interpretation that a petition must go




                              15
in the first instance to the Department where the petitioner
had been sentenced. Without such a determination by the
presiding judge, we have no occasion to consider further the
meaning of “not available” and the scope of proper
considerations for a presiding judge.

                      DISPOSITION

      The trial court’s order denying Santos’s resentencing
petition is reversed, and the matter is remanded for further
proceedings in accordance with section 1170.95 and this
opinion.



           MOOR, J.

     We concur:




           BAKER, Acting P. J.




           KIM, J.




                             16
