Filed 8/18/20 P. v. Garcia CA2/4
         NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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     IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                        DIVISION FOUR


THE PEOPLE,                                                   B301331

         Plaintiff and Respondent,                            (Los Angeles County
                                                              Super. Ct. No. BA109070)
         v.

RAMIRO MACIAS GARCIA,

         Defendant and Appellant.


      APPEAL from an order of the Superior Court of
Los Angeles County, Morris Bruce Jones, Judge. Reversed and
remanded with instructions.
      Jonathan E. Demson, 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 Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
                         INTRODUCTION
        Appellant Ramiro Macias Garcia was convicted of second
degree murder for his involvement in two gang-related shootings
that occurred in 1995. Appellant was not the shooter in either
instance. In 2019, he filed a petition for resentencing under Penal
Code section 1170.95.1 The trial court denied the petition
without appointing counsel or conducting a hearing, finding that
appellant was ineligible for relief because this court’s opinion in
appellant’s direct appeal held there was sufficient evidence to
support one conviction under an aiding and abetting theory, and
because appellant was a major participant in the underlying
felony and acted with reckless indifference to human life. The
trial court further held that section 1170.95 was unconstitutional.
       On appeal, appellant asserts that the trial court’s summary
denial was erroneous, in that appellant’s petition did not
demonstrate that he was ineligible for relief and section 1170.95
is constitutional. The Attorney General concedes that summary
denial was unwarranted under the circumstances. We agree,
reverse the trial court’s ruling, and remand for further
proceedings consistent with section 1170.95.
       FACTUAL AND PROCEDURAL BACKGROUND
A.      Conviction and appeal
       The details of appellant’s underlying convictions are in our
previous opinion, People v. Aparicio, et al. (Oct. 7, 1998, B113096
[nonpub. opn.]) (Aparicio).2 That appeal followed a trial in which
appellant and two others, Miguel Aparicio and Jose Macias, were



      1 All further statutory references are to the Penal Code.
      2 The Attorney General filed a request asking us to take
judicial notice of Aparicio. We hereby grant that request.



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convicted of two counts of second degree murder following a gang-
related incident.
       According to the opinion, on November 4, 1995 two gang
members went into a clothing store and got into a verbal
disagreement with the owners, a husband and wife. During the
disagreement, one gang member said, “This is my neighborhood,
and I can do what I want here,” and threatened to kill the
husband. The gang members left the store to get their “home
boys,” and later returned with about 10 additional gang
members, including appellant. As one held a gun to the husband,
he said, “This is my Barrio, and you’re going to respect it.” While
in the store, appellant looked through drawers, disconnected the
telephone, and stole money from the wife’s purse. Appellant also
encouraged one of the gang members, “Little Mister,” to kill the
husband, saying “kill him, kill him.” Other members also
encouraged Little Mister; for example, Aparicio said to him,
“Don’t let the neighborhood down.” When the husband’s 19-year-
old brother walked in, Little Mister turned the gun toward him,
and shot and killed him. The gang members then left the store;
as they were leaving, one shot and killed a 69-year-old bystander
who had witnessed the incident. Our opinion in Aparicio makes
clear that “[b]oth victims were shot by someone other than
appellants.”
       Appellant and others were charged with two counts of
murder (§ 187, subd. (a)), with alleged special circumstances of
robbery-murder (§ 190.2, subd. (a)(17)) and multiple murder
(§ 190.2, subd. (a)(3)).3 Trial proceeded against at least four
defendants. We stated in Aparicio that at trial, “During closing

      3Appellants and others were also charged with two counts
of second degree robbery (§ 211), and one count of conspiracy to



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argument the prosecutor relied on three theories of liability as to
appellants: (1) for aiding and abetting murder,[ ] (2) for felony
murder, and (3) for murder as a natural and probable
consequence of conspiracy to assault or make terrorist threats.
The jury rejected the finding of first degree murder and also
rejected the special circumstance of murder during robbery, so
clearly the jury relied on either the first or third theory of
liability.” The jury found appellant, Aparicio, and Macias guilty
of two counts of second degree murder, and found true an
allegation that a principal was armed with a firearm during the
commission of the murders. The jury also found the special
circumstances not true. Appellant was sentenced to a total term
of 32 years to life, consisting of consecutive terms of 15 years to
life for each count, plus one year for each firearm enhancement.
       We affirmed the convictions in Aparicio. On appeal,
appellant, Aparicio, and Macias contended there was insufficient
evidence to sustain a finding that they aided and abetted the
murder of the bystander, or that the murder was a natural and
probable consequence of conspiracy to commit assault and/or
terrorist threats. We found the evidence sufficient to support the
convictions, citing the various gang members’ encouragement to
kill during the incident, and a gang expert’s testimony that gangs
work together to retaliate, provoke fear, and gain respect.
Appellant also asserted there was insufficient evidence to support
his conviction for the murder of the brother. We found that the
evidence was sufficient, noting appellant’s encouragement to the
shooter. We rejected appellant, Aparicio, and Macias’s
contentions that certain jury instructions were erroneous and

commit murder (§§ 182, 187, subd. (a).) These charges were
dismissed during trial.



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warranted reversal, and rejected their argument that juror
misconduct required reversal.
B.     Petition for resentencing
       In Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437),
the Legislature amended “‘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. Lamoureux (2019)
42 Cal.App.5th 241, 247 (Lamoureux).) In SB 1437 the
Legislature also enacted section 1170.95, which allows a “person
convicted of felony murder or murder under a natural and
probable consequences theory [to] file a petition . . . to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts” under certain conditions. (§ 1170.95,
subd. (a).) These changes became effective on January 1, 2019.
       On June 19, 2019, appellant filed a petition for
resentencing under section 1170.95. He checked the boxes on the
form stating that he had been convicted at trial of second degree
murder under the felony murder rule or the natural and probable
consequences doctrine.
       The trial court denied appellant’s petition without holding
a hearing. In its written ruling, the court discussed the facts of
the underlying crime, including noting that appellant went to the
store with the gang to demonstrate the gang’s strength in
numbers; while inside, he disconnected the phone; and he
encouraged the shooter to kill shortly before the owner’s brother
was shot. Regarding the brother’s murder, the court stated,
“[T]he overall evidence established that [appellant] not only




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directly aided and abetted the killing of [the brother], but also
that he was a major participant in that act who acted with
reckless indifference to human life.” The court therefore held
that appellant was not eligible for resentencing as to the
brother’s murder.
       As to the bystander’s murder, the court stated, “[I]t appears
that from the totality of the evidence presented that [appellant]
may be entitled to relief.” However, the court denied appellant’s
petition “on constitutional grounds” and found that “SB 1437 and
Penal Code § 1170.95 are unconstitutional.” Appellant timely
appealed.
                           DISCUSSION
       Appellant asserts two arguments on appeal. First, he
contends that the trial court erred in holding that SB 1437 and
section 1170.95 are unconstitutional, and denying the petition on
that basis. The Attorney General concedes that appellant is
correct. We agree. In the months since the trial court’s ruling, SB
1437 and section 1170.95 have been held to be constitutional,
rejecting the reasoning relied upon by the court below. (See
People v. Solis (2020) 46 Cal.App.5th 762; Lamoureux, supra, 42
Cal.App.5th 241.) The court’s denial of the petition on this basis
was erroneous.
       Second, appellant contends that the trial court erred in
summarily denying his petition without appointing counsel and
allowing briefing. The Attorney General also concedes this issue,
stating that appellant made a sufficient prima facie showing, and
the record did not make clear that appellant was ineligible for
relief. Again, we agree.
       The trial court considers a petition under section 1170.95
according to a three-step process. First, the court “review[s] the




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petition and determine[s] if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this
section.” (§ 1170.95, subd. (c).) The court can deny relief without
holding an evidentiary hearing if the petitioner fails to make a
prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c).) When the petition survives this initial
threshold, “[i]f 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.” (§ 1170.95, subd. (c).) If the court issues an order to
show cause, it must hold a hearing within 60 days to determine
whether to vacate the murder conviction. (§ 1170.95, subd.
(d)(1).)
       Here, the trial court summarily denied the petition without
appointment of counsel or briefing from the parties. The court
held that appellant was not entitled to resentencing under
section 1170.95 because the evidence supported his conviction for
the murder of the brother on the aiding and abetting theory, and
because appellant was a major participant in the underlying
felonies and acted with a reckless indifference to human life.
However, we noted in Aparicio that the jury was also instructed
on the natural and probable consequences theory as to both
murders. As the Attorney General points out, “The jury found
the felony-murder special circumstances allegations not true as
to both counts, and there is nothing in the record that definitively
shows the jury convicted appellant as a direct aider and abettor
on either murder count.” Moreover, the court acknowledged that
appellant may be entitled to resentencing as to the murder of the




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bystander if section 1170.95 were constitutional. Thus,
appellant’s petition did not demonstrate that appellant was
ineligible for relief as a matter of law. The trial court’s denial of
appellant’s petition without the appointment of counsel or a
hearing was erroneous.
       The parties each contend that the case should be remanded
for further proceedings in compliance with section 1170.95. We
agree.4
                            DISPOSITION
       The court’s postjudgment order denying appellant’s petition
for resentencing is reversed, and the matter is remanded for
further proceedings under section 1170.95.
  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                            COLLINS, J.

We concur:


MANELLA, P. J.


CURREY, J.




      4 We do not reach appellant’s contentions that the trial
court’s summary denial of his petition denied him his
constitutional rights to counsel and due process.



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