Filed 8/18/20 P. v. Carrillo CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                2d Crim. No. B298931
                                                         (Super. Ct. No. TA081961)
     Plaintiff and Respondent,                             (Los Angeles County)

v.

HENRY CARRILLO,

     Defendant and Appellant.


      Henry Carrillo appeals from an order denying his petition
to vacate his murder conviction and obtain resentencing under
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (S.B. 1437), which
went into effect on January 1, 2019. (See Stats. 2018, ch. 1015,
§ 4.) S.B. 1437 added section 1170.95 to the Penal Code.1 If a
defendant has previously been convicted of murder under the
felony-murder rule or the natural and probable consequences
doctrine and qualifies for relief under section 1170.95, the statute



         1   All further statutory references are to the Penal Code.
permits the defendant to petition to vacate the conviction and
obtain resentencing on any remaining counts.
        Appellant was convicted by a jury of first degree felony
murder (§§ 187, subd. (a), 189), two counts of attempted second
degree robbery (§§ 664, 211), and one count of second degree
robbery (§ 211). In 2007 he was sentenced to prison for 28 years
to life. In a 2008 nonpublished opinion, People v. Car[r]illo (Feb.
21, 2008, B197783) 2008 Cal.App. Unpub. LEXIS 1393, we
affirmed the judgment of conviction.
        The Attorney General concedes that the trial court
erroneously denied appellant’s petition. We accept the concession
and reverse. We remand the matter to the trial court with
directions to conduct further proceedings pursuant to section
1170.95.
                                Facts
        The facts are taken from pages 1-2 of our nonpublished
opinion.
        “Martinez, the surviving victim of the attempted robberies,
testified as follows:
        “Martinez, Soto and Butler were walking away from a strip
bar where they had been drinking. Appellant and three other
men approached them. Appellant ‘asked if [they] had any
money.’ Martinez said that he did not have any money. One of
the suspects removed Soto’s wallet from his person. Butler
cursed at the suspects. While Martinez and Butler were walking
away, Martinez heard at least four gunshots and ‘saw the bullets
going through [Butler’s] back.’ Butler fell to the ground, fatally
wounded. Martinez did not see who was firing the gun.
        “There were inconsistencies between the testimony of
Martinez and Soto, the robbery victim. Soto testified as follows:




                                2
         “Martinez, Soto, and Butler were approached by a man who
asked for money. The man was accompanied by two or three
other men. Soto handed ‘a stack of dollars’ to them because one
of the suspects had a gun[.] Another suspect emptied Soto’s
pockets. Soto saw Butler talking to the suspect with the gun. It
appeared that Butler ‘was trying to snatch the gun away.’ Butler
was saying ‘Hold up, hold up, hold up.’ The suspect with the gun
‘jumped back’ and started shooting at Butler.
         “From a photographic lineup, Soto identified appellant as
the suspect who had asked for money. But at trial Soto was
unable to identify appellant.”
                        Procedural Background
         In January 2019 appellant filed a petition for resentencing
pursuant to section 1170.95. Appellant declared, “I was convicted
of 1st degree felony murder and I could not now be convicted
because of changes to Penal Code § 189, effective January 1, 2019
. . . .” Appellant further declared that (1) he “was not the actual
killer”; (2) he “did not, with the intent to kill, aid [or] abet . . . the
actual killer in the commission of murder in the first degree”; and
(3) he “was not a major participant in the felony murder or . . .
did not act with reckless indifference to human life during the
course of the crime or felony.”
         The District Attorney did not file a response to the petition.
Without appointing counsel, in April 2019 the trial court
summarily denied the petition by minute order. Neither
appellant, the District Attorney, nor a court reporter was present.
The petition was denied because appellant had failed to make a
prima facie showing that he qualified for relief under section
1170.95. The court concluded that, based on the facts set forth in
our nonpublished opinion, appellant “was a major participant in




                                    3
the underlying felony and acted with reckless indifference to
human life.”
                              S.B. 1437
       “Under the felony-murder rule as it existed prior to Senate
Bill 1437, a defendant who intended to commit a specified felony
could be convicted of murder for a killing during the felony, or
attempted felony, without further examination of his or her
mental state. [Citation.]” (People v. Lamoureux (2019) 42
Cal.App.5th 241, 247-248.) The felony-murder rule is set forth in
section 189. S.B. 1437 amended section 189 to add subdivision
(e), which provides: “A participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a) [such
as robbery] in which a death occurs is liable for murder only if
one of the following is 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.” (Stats. 2018, ch. 1015, § 3.)
       Section 1170.95, added by S.B. 1437, provides in
subdivision (a), “A person convicted of felony murder . . . may file
a petition with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts when” certain conditions apply. One of the
conditions is that “[t]he petitioner could not be convicted of first
or second degree murder because of changes to Section 188 or 189




                                 4
made [by S.B. 1437] effective January 1, 2019.”2 (§ 1170.95,
subd. (a)(3).) The petition must include a declaration by the
petitioner showing that he is eligible for the relief afforded by
section 1170.95. (Id., subd. (b)(1)(A).)
       Section 1170.95, subdivision (c) provides that, “[i]f the
petitioner makes a prima facie showing that he or she is entitled
to relief, the court shall issue an order to show cause.” Within 60
days after the issuance of the order to show cause, the trial court
must conduct an evidentiary hearing at which “the burden of
proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.” (Id.,
subd. (d)(3).)
         The Trial Court Properly Considered the Statement
              of Facts in Our 2008 Unpublished Opinion
       Appellant contends, “The trial court erred in relying upon
the recitation of facts in in the 2008 Court of Appeal opinion in
making its determination of prima facie case.” We disagree.
Section 1170.95, subdivision (d)(3) provides that, at the hearing
conducted after the trial court has issued an order to show cause,
“[t]he prosecutor and the petitioner may rely on the record of
conviction . . . to meet their respective burdens.” It follows that,
in determining whether the petitioner has made a prima facie
showing of entitlement to relief, the court may consider the
record of conviction. “A court of appeal opinion . . . is part of the
appellant’s record of conviction. [Citations.] Accordingly, it [is]

      2 S.B. 1437 amended section 188 to add subdivision (a)(3),
which 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.”
(Stats. 2018, ch. 1015, § 2.)


                                  5
proper for [us] to consider our [prior] opinion . . . in determining
whether he had made a prima facie showing of eligibility for
relief under section 1170.95 or whether he was ineligible for relief
as a matter of law.” (People v. Verdugo (2020) 44 Cal.App.5th
320, 333 (Verdugo); see also People v. Lewis (2020) 43
Cal.App.5th 1128, 1136, fn. 7 [for purposes of section 1170.95,
“[t]he record of conviction includes a reviewing court’s opinion”];3
People v. Trujillo (2006) 40 Cal.4th 165, 180-181 [“an appellate
court decision . . . can be relied upon to determine the nature of a
prior conviction because it may disclose the facts upon which the
conviction was based. [Citation.] We held in [People v.] Woodell
[(1998) 17 Cal.4th 448, 457,] ‘that appellate opinions, in general,
are part of the record of conviction that the trier of fact
may consider in determining whether a conviction qualifies under
the sentencing scheme at issue’ ”]; Woodell, supra, 17 Cal.4th at


      3 On March 18, 2020, the Supreme Court granted review in
Verdugo, S260493, and Lewis, S260598. In Lewis briefing and
argument are limited to two issues, only one of which is relevant
to this appeal: “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?” (People v. Lewis (Mar. 18, 2020, No S260598) [2020
Cal. LEXIS 1946, at *1].) In Verdugo further action was
“deferred pending consideration and disposition of a related issue
in [Lewis].” (People v. Verdugo (Mar. 18, 2020, No. S260493)
[2020 Cal. LEXIS 2057, at *1].) Pending review and filing of the
Supreme Court’s opinion, Lewis and Verdugo have “no . . .
precedential effect, and may be cited for potentially persuasive
value only.” (Cal. Rules of Court, rule 8.1115(e)(1).)




                                 6
p. 457 [“If the appellate court did state the pertinent facts, a trier
of fact is entitled to find that those statements accurately reflect
the trial record”]; People v. Hicks (2014) 231 Cal.App.4th 275, 286
[“the appellate opinion is part of the record of conviction which
the court properly used in determining defendant’s eligibility” for
resentencing under the Three Strikes Reform Act of 2012]; In re
Richardson (2011) 196 Cal.App.4th 647, 667 [“Our opinion on the
1992 evasion conviction stated petitioner’s victims were
occupants of a mobilehome that was damaged by petitioner’s
crash. Our opinion is evidence in the record of conviction that
establishes the victims of the 1992 evasion conviction were not
accomplices, and therefore the evasion conviction qualifies as a
prior strike”].)
      Two-Step Procedure of Section 1170.95, Subdivision (c)
       Section 1170.95, subdivision (c), hereafter subdivision (c),
provides: “The court 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. If the petitioner has
requested counsel, the court shall appoint counsel to represent
the petitioner. The prosecutor shall file and serve a response
within 60 days of service of the petition and the petitioner may
file and serve a reply within 30 days after the prosecutor[’s]
response is served. These deadlines shall be extended for good
cause. 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.”
       “Subdivision (c) . . . prescribes two . . . court reviews before
an order to show cause may issue, one [the first step] made before
any briefing to determine whether the petitioner has made a
prima facie showing he or she falls within section 1170.95—that




                                  7
is, that the petitioner may be eligible for relief—and a second [the
second step] after briefing by both sides to determine whether the
petitioner has made a prima facie showing he or she is entitled to
relief.” (Verdugo, supra, 44 Cal.App.5th at p. 328.)
       “The court’s role at [the first step] is simply to decide
whether the petitioner is ineligible for relief as a matter of law,
making all factual inferences in favor of the petitioner.”
(Verdugo, supra, 44 Cal.App.5th at p. 329.) “[I]f the petitioner’s
ineligibility for resentencing under section 1170.95 is not
established as a matter of law by the record 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.)
       “A prima facie showing is one that is sufficient to support
the position of the party in question.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 851.) “‘[P]rima facie evidence
is that which suffices for the proof of a particular fact, until
contradicted and overcome by other evidence. It may . . . be
contradicted, and other evidence is always admissible for that
purpose.’” (In re Raymond G. (1991) 230 Cal.App.3d 964, 972,
quoting from Vaca Valley & C.L. Railroad v. Mansfield (1890) 84
Cal. 560, 566.)
                     Appellant Satisfied the First
                    Step of the Two-Step Procedure
       The Attorney General concedes, and we agree, that
appellant satisfied the first step of subdivision (c)’s two-step
procedure. Appellant was one of three or four men who
participated in the robbery. One of the men had a firearm and




                                 8
shot Butler. Based on the summary of the facts in our
nonpublished opinion, the identity of the shooter is uncertain. In
his appellate brief the Attorney General notes that, during
closing argument to the jury, “[t]he prosecutor argued that
appellant was a principal in the robbery and attempted robbery.
[Record citation.] As to murder, the prosecutor’s lone theory was
that appellant was guilty of first degree felony murder. [Record
citation.]”4 It is therefore reasonable to infer that the jury
convicted appellant of first degree murder based on a felony-
murder theory.
       The trial court decided that appellant is ineligible for relief
because the “facts stated” in our nonpublished opinion show that
he “was a major participant in the underlying felony and acted
with reckless indifference to human life.” Section 189,
subdivision (e)(3) provides that a person is liable for first degree
felony murder if “[t]he 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.” (Italics
added.) Section 190.2 lists the special circumstances for first
degree murder. Section 190.2, subdivision (d), extends special
circumstances liability to “[e]very person, not the actual killer,
who, with reckless indifference to human life and as a major
participant, aids [or] abets” one of the crimes listed in section
190.2, subdivision (a)(17).
       The mere participation in an armed robbery does not
satisfy the “reckless indifference to human life” requirement of
section 190.2, subdivision (d). In In re Ramirez (2019) 32
Cal.App.5th 384, 405-406, the court concluded that the

      4 We grant the Attorney General’s request to take judicial
notice of the record in appellant’s prior appeal, B197783.


                                  9
defendant’s participation in an armed robbery was insufficient to
“demonstrate reckless indifference to human life” because
“[t]here is no evidence from which it reasonably can be inferred
[defendant] harbored a willingness to kill[;] or to assist his
confederates in killing, to achieve the goal of robbing someone[;]
or that he anticipated the potential for loss of human life beyond
that usually accompanying an armed robbery.” (See also People
v. Clark (2016) 63 Cal.4th 522, 623 [evidence insufficient to
support special circumstances allegation because “there appears
to be nothing in the plan [to commit armed robbery] that one can
point to that elevated the risk to human life beyond those risks
inherent in any armed robbery”]; Id. at p. 617 [“while the fact
that a robbery involves a gun is a factor beyond the bare
statutory requirements for first degree robbery felony murder,
this mere fact, on its own and with nothing more presented, is
not sufficient to support a finding of reckless indifference to
human life for the felony-murder aider and abettor special
circumstance”].)
       Thus, the mere fact that appellant participated in an
armed robbery and that one of the robbers shot Butler does not
establish, as a matter of law, that appellant is ineligible for
resentencing because he “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.” (§ 189,
subd. (e)(3).) Appellant satisfied the first step of subdivision (c)’s
two-step prima facie procedure. As the attorney general
acknowledges, the matter must be remanded to the trial court so
it can move on to the second step.




                                  10
                             Disposition
       The order denying appellant’s section 1170.95 petition for
resentencing is reversed. The matter is remanded to the trial
court with directions to conduct further proceedings pursuant to
section 1170.95. The trial court shall (1) appoint counsel to
represent appellant,5 (2) direct the prosecutor to file and serve a
response to appellant’s petition, (3) permit appellant to file and
serve a reply to the prosecutor’s response, and (4) “determine,
with the benefit of the parties’ briefing and analysis, whether
[appellant] has made a prima facie showing he . . . is entitled to
relief.” (Verdugo, supra, 44 Cal.App.5th at p. 330.) If appellant
makes the requisite prima facie showing, the trial court shall
issue an order to show cause as provided in subdivision (c).
       NOT TO BE PUBLISHED.




                                                  YEGAN, J.

We concur:


             GILBERT, P. J.


             TANGEMAN, J.




      5 In view of our reversal and direction that the trial court
appoint counsel, we need not consider appellant’s claim that, by
not appointing counsel below, the trial court violated his
constitutional rights to counsel and procedural due process.


                                 11
                  Connie R. Quinones, Judge

             Superior Court County of Los Angeles

                ______________________________

      John A. Colucci, 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, Senior
Assistant Attorney General, Idan Ivri, Acting Supervising
Deputy Attorney General, Wyatt E. Bloomfield, Deputy Attorney
General, for Plaintiff and Respondent.
