Filed 8/19/20 P. v. Morales CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX


THE PEOPLE,                                                  2d Crim. No. B298387
                                                           (Super. Ct. No. KA083765)
     Plaintiff and Respondent,                               (Los Angeles County)

v.

EFRAIN MORALES,

     Defendant and Appellant.


      Efrain Morales appeals an order denying his petition for
resentencing filed under Penal Code section 1170.95.1 We
conclude, among other things, that the trial court erred by
summarily denying the petition. We reverse and remand with
instructions that the court issue an order to show cause, appoint
counsel for Morales, and conduct the hearing required by section
1170.95.




         1   All statutory references are to the Penal Code.
                               FACTS
       On May 10, 2008, Morales drove Jason Romo “to the crime
scene.” Romo got out of the car; he subsequently confronted and
shot the victim. The victim died. Romo then returned to the car.
Morales drove the car from the area. During the time when
Romo left the vehicle and shot the victim, Morales remained in
the car.
       Morales was convicted of first degree murder (§ 187, subd.
(a)) and attempted robbery (§§ 664, 211). The jury also found
true a special circumstance allegation that the murder was
committed in the attempted robbery. (§ 190.2, subd. (a)(17)(A).)
Morales was sentenced to life without parole, plus 63 years
4 months to life in state prison.
       In 2010, we affirmed the murder and attempted robbery
conviction and held there was sufficient evidence “to support the
special circumstance finding that [Morales] aided and abetted the
attempted robbery with reckless indifference to human life.”
(Italics added.) We also ruled that Morales was “a major
participant in the attempted robbery and murder.” (Italics
added.)
       In 2019, Morales filed a petition for resentencing
(§ 1170.95), declaring that he was “not a major participant in the
felony” and did not act with reckless indifference to human life.
       The trial court “summarily denied” the petition, finding
Morales “is not eligible for consideration pursuant to [section]
1170.95.” The court did not issue an order to show cause for a
hearing and it did not appoint counsel for Morales. The court
found, “Since [Morales’s] special circumstance felony murder
conviction has been sustained and upheld by the appellate courts,




                                2
[Morales] is ineligible for consideration. So this matter is
summarily denied.”
                             DISCUSSION
                 Denying the Section 1170.95 Petition
        Morales contends the trial court erred by summarily
denying the petition. We agree.
        The origin of section 1170.95 was the Governor’s signing of
Senate Bill No.1437 in 2018. “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.’ ” (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411,
417, italics added; Stats. 2018, ch. 1015, § 1, subd. (f).)
        A defendant convicted of felony murder may file a petition
under section 1170.95 alleging he or she “could not be convicted
of first or second degree murder” because of changes to the law
required by Senate Bill No. 1437. (People v. Gutierrez-Salazar,
supra, 38 Cal.App.5th at p. 417.) “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 the provisions of this section.
(§ 1170.95, subd (c).)’ ” (Ibid.) “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 resentence the
petitioner. (Ibid.)
        Consequently, there are two stages involved in a section
1170.95 petition. It is only after a prima facie showing is made




                                 3
for relief in the first stage that the trial court proceeds to the
second stage and issues an order to show cause and the case
proceeds to an evidentiary hearing. Where the prima facie
showing is not made in the first stage, the court may deny the
petition.
       Morales contends the trial court erred by denying his
petition without first issuing an order to show cause, appointing
counsel, and holding an evidentiary hearing. He contends the
failure to provide him with these procedural protections violated
his right to due process.
       The People respond that “an undisturbed felony-murder
special circumstance conviction, such as the robbery-murder
special circumstance conviction at issue here, renders a petitioner
ineligible for section 1170.95 relief as a matter of law.” They
contend the trial court reviewing the record of Morales’s
conviction and seeing our affirmance of the special circumstance
finding properly denied his petition immediately, without
considering any additional facts, without issuing an order to
show cause, without appointing counsel or holding a hearing.
       Many courts have held that where the petitioner is
ineligible for section 1170.95 relief, the trial court may
summarily dismiss the petition without appointing counsel.
(People v. Cervantes (2020) 44 Cal.App.5th 884, 887; People v.
Verdugo (2020) 44 Cal.App.5th 320, 329-330, review granted Mar.
18, 2020, No. S260493; People v. Cornelius (2020) 44 Cal.App.5th
54, 58, review granted Mar. 18, 2020, No. S260410.)
       The People argue the special circumstance findings
authorized the trial court to deny this petition. They note we
affirmed the special circumstance findings and ruled Morales was
a major participant in the attempted robbery and murder and




                                4
that he acted with indifference to human life. They cite People v.
Gutierrez-Salazar, supra, 38 Cal.App.5th at page 419 for the
proposition that where the language of the special circumstance
findings tracks the language of the exclusions for relief in Senate
Bill No. 1437, relief under section 1170.95 must be denied as a
matter of law.
       That may be true in some cases, but this case is different.
Here the crimes took place in 2008 and the conviction was
affirmed in 2010.
       But a trial court may not currently rely on these older
special circumstance findings to automatically deny relief under
section 1170.95 because the current special circumstance findings
involve different standards than the ones when Morales was
convicted. (People v. Torres (2020) 46 Cal.App.5th 1168, 1173.)
       In Torres, the court reversed the summary denial of a
section 1170.95 petition where the trial court relied exclusively
on special circumstance findings made in 2001. This is what the
trial court did in our case. The Court of Appeal in Torres also
rejected the argument the People are making here. It said, “The
trial court here relied exclusively on the jury’s 2001 special
circumstances findings, which findings alone are not sufficient to
preclude relief in the wake of People v. Banks (2015) 61 Cal.4th
788 . . . (Banks) and People v. Clark (2016) 63 Cal.4th 522 . . .
(Clark).” (People v. Torres, supra, 46 Cal.App.5th at p. 1173,
italics added.) The court said the “Supreme Court’s decisions,
clarifying what it means for an aiding and abetting defendant to
be a ‘major participant’ in an underlying felony and to act with
‘reckless indifference to human life,’ construed section 190.2,
subdivision (d) in a significantly different, and narrower manner




                                5
than courts had previously construed the statute.” (Id. at
p. 1179. italics added.)
       In Banks, our Supreme Court declared that a defendant
must be “ ‘ “subjectively aware that his or her participation in the
felony involved a grave risk of death.” ’ ” (People v. Banks, supra,
61 Cal.4th at p. 807.) After Banks, triers of fact may ask if there
is evidence that the defendant intended to kill. (Ibid.) To help
guide triers of fact, the Banks court listed a series of potentially
relevant factors, including: 1) the role the defendant had in
planning; 2) the role the defendant had in supplying the lethal
weapon; 3) the awareness of the defendant to the dangers posed
by the crime, the weapon, to the past experience or conduct of
other participants; 4) the defendant’s ability to prevent the
murder; and 5) the defendant’s actions after knowing lethal force
was used. (Id. at p. 803, In re Miller (2017) 14 Cal.App.5th 960,
971.) In Clark, the Supreme Court emphasized that there was
insufficient evidence to show Clark’s “awareness of the past
experience or conduct” of the shooter. (People v. Clark, supra, 63
Cal.4th at p. 614.) The court in Torres concluded that a
defendant’s pre-Banks/Clark special circumstance findings
cannot be used as the sole basis for denying the section 1170.95
petition, as it was in this case.
       Here Morales declared that he was not the “actual killer,”
he did not intend to kill anybody, and he did not assist Romo in
committing murder. He argues that in addition to not having
any personal role in the killing, he was not armed. He claims the
jury was instructed under the natural and probable consequences
doctrine which Senate Bill No. 1437 has now eliminated. He
notes that, as a result of Senate Bill No. 1437, section 188,
subdivision (a)(3) now provides malice for murder “shall not be




                                 6
imputed to a person based solely on his or her participation in a
crime.” (Italics added.) Morales claims that had the trial court
proceeded to stage two of the section 1170.95 process, he could
present evidence that: 1) he did not know Romo planned to kill
anyone, 2) Romo alone made the decision to kill when the victim
resisted the robbery, 3) he (Morales) could not have anticipated
that result while sitting in the car, and 4) the special
circumstance findings may not be sustained under current law.
       The People claim Torres is incorrect and should not be
followed. We disagree. Torres is consistent with the broad
remedial goal the Legislature intended for section 1170.95
petitions. Section 1170.95, subdivision (d)(3) permits the People
and the petitioner to add “additional evidence to meet their
respective burdens.” This means current additional evidence
that was never presented to the trier of fact. This is particularly
important where the law has changed since the conviction and a
claim for retroactive relief may be presented with additional facts
judged by different standards. Morales contends under the post-
Banks/Clark standards, he is eligible for relief and entitled, at
the very least, to consideration by the trial court regarding his
new factual claims. He argues, “The purpose of Senate Bill 1437
is to give defendants who were not the actual killers an
opportunity to litigate the prior findings under the new
standards.” (Italics added.) This claim about his right to an
opportunity to present evidence is consistent with the legislative
intent of the new legislation.
       The People note that we summarily denied Morales’s
habeas petition in 2016. They claim that if Morales claims he
now has additional evidence, his remedy is to file a habeas
petition, not to proceed by a section 1170.95 petition. We




                                 7
disagree. There would be no reason for the Legislature to have
created the section 1170.95 procedure if lawmakers felt an
adequate remedy to resolve Senate Bill No. 1437 claims was a
habeas petition. The section 1170.95 procedure provides
defendants with a new procedural due process that the
Legislature intended defendants, such as Morales, to be able to
utilize. (People v. Martinez (2019) 31 Cal.App.5th 719, 727.)
Fundamental jurisdictional defects “do not become irremediable”
simply because a judgment is final. (In re Harris (1993) 5 Cal.4th
813, 840.) Under Senate Bill No. 1437, felony murder judgments
are not permanently etched in stone because they are final. They
can be reopened in a section 1170.95 proceeding. This is
particularly the case where the law has changed and the prior
special circumstance findings can no longer be supported by the
evidence and current law.
                          DISPOSITION
       The order summarily denying the petition is reversed. On
remand, the trial court shall issue an order to show cause,
appoint counsel, and provide Morales with the hearing required
by section 1170.95.
       NOT TO BE PUBLISHED.



                                    GILBERT, P. J.
We concur:

             PERREN, J.



             TANGEMAN, J.




                                8
                   Mike Camacho, Jr., Judge

             Superior Court County of Los Angeles

                ______________________________



      Deborah L. Hawkins, 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, Charles S. Lee and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.




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