Filed 8/19/20 P. v. Del Carmen 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   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                 B299604

         Plaintiff and Respondent,                          (Los Angeles County
                                                            Super. Ct. No. BA427590-02)
         v.

JONATHAN DEL CARMEN
    Defendant and
    Respondent.


      APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, George G. Lomeli, Judge. Reversed and
remanded with directions.
      Elizabeth K. Horowitz, 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, Charles S.
Lee and David W. Williams, Deputy Attorneys General for
Plaintiff and Respondent.
                       _________________
       Jonathan Del Carmen pleaded guilty to second degree
murder pursuant to a negotiated agreement and was sentenced
to an indeterminate state prison term of 15 years to life. A few
months after he was sentenced, Del Carmen petitioned for
resentencing pursuant to then newly enacted Penal Code
                1
section 1170.95. The superior court denied the petition solely on
the ground section 1170.95 was unconstitutional. We reverse.
      FACTUAL AND PROCEDURAL BACKGROUND
       1. The Killing of Xinran Ji
       According to the evidence presented at Del Carmen’s
preliminary hearing, in July 2014 Del Carmen drove three
friends, Alberto Ochoa, Andrew Garcia and Alejandra Guerrero,
on a “flocking” mission, a term Ochoa told police meant to “rob”
someone. They found Xinran Ji, a 24-year-old USC graduate
student, walking home to his apartment from a study session just
after midnight. Del Carmen stopped the car at Ochoa’s request.
Ochoa, Garcia and Guerrero got out the car and chased Ji on foot.
In a particularly brutal attack, Ochoa and Garcia beat Ji with a
metal baseball bat when Ji refused to relinquish his backpack.
Guerrero also participated in the attack. Del Carmen remained
in the car. At one point during the attack, Del Carmen started to
drive away. Garcia, Ochoa and Guerrero stopped their assault
and jumped back into the car. Del Carmen and his companions
left the scene. Ji, bloodied and bleeding with a fractured skull,
returned to his apartment, where he died a short time later. The
attack was captured on surveillance cameras.




1
      Statutory references are to this code.




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      2. The Information and Negotiated Plea Agreement
      An information filed January 23, 2015 charged Del Carmen
and his confederates with special circumstance murder. (§ 190.2,
subd. (a)(17).) Pursuant to a negotiated plea agreement,
Del Carmen pleaded no contest to second degree murder in July
2018 and was sentenced to an indeterminate state prison term of
15 years to life.
       3. Senate Bill No. 1437 and Del Carmen’s Petition for
          Resentencing
             a. Senate Bill No. 1437
       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
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




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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. (§ 1170.95, subd. (b)(1).) 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 People v. Verdugo (2020) 44 Cal.App.5th 320, 326-327, review
                                            2
granted Mar. 18, 2020, S260493 (Verdugo).
       If “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 the petitioner

2
       The Supreme Court in Verdugo, supra, S260493 ordered
briefing deferred pending its disposition of People v. Lewis (2020)
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)?”




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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.’” (Verdugo, supra,
44 Cal.App.5th at p. 327.)
       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. Del Carmen’s section 1170.95 petition
       In January 2019 Del Carmen petitioned for resentencing
under section 1170.95. In his petition on the Re:Store Justice
form (see Verdugo, supra, 44 Cal.App.5th at p. 324 & fn. 2), Del
Carmen 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; he pleaded no contest to first or second
degree murder in lieu of going to trial because he believed he
could have been convicted of first or second degree murder at
trial pursuant to the felony-murder rule or the natural probable
consequences doctrine; and he could not now be convicted of first




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or second degree murder because of the amendments to
sections 188 and 189. He also requested appointment of counsel
during this resentencing process and checked additional boxes
indicating he was “not the actual killer,” “did not, with the intent
to kill aid, abet, counsel, induce, solicit, request or assist the
actual killer in the commission of murder in the first degree,” and
“was not a major participant in the felony [nor] act[ed] with
reckless indifference to human life during the course of the crime
or felony.”
       The People opposed the petition, arguing exclusively that
section 1437 was unconstitutional. Del Carmen filed a reply.
                                                                3
       On June 14, 2019 the superior court denied the petition.
The court stated, “Although, from the totality of the evidence it
appears that the petitioner may be entitled to relief pursuant to
Penal Code [1170.95]/SB 1437 as he was neither the actual killer
nor one who with the intent to kill aided in the killing nor one
who was a major participant who acted with reckless
indifference, the court is nonetheless denying the instant petition
on constitutional grounds,” specifically, that the legislation was
“unconstitutional in the manner that it was enacted.” The court
reasoned 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

3
      At the June 14, 2019 hearing on the petition, Del Carmen
was represented by the same appointed counsel who had
represented him during his negotiated plea agreement. It
appears, but is by no means clear, the superior court appointed
counsel prior to the hearing pursuant to section 1170.95,
subdivision (c).




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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.
                            DISCUSSION
      1. Section 1170.95 Is Constitutional
      Del Carmen contends, and the Attorney General agrees,
the superior court erred in concluding 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, 63-69 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 480; 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.




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      2. On Remand the Superior Court Must Determine Whether
         an Order To Show Cause Should Issue
       Although Del Carmen and the People agree reversal of the
court’s order denying Del Carmen’s petition is required, they
disagree on the procedure to be applied on remand. Relying on
the court’s statement that it appeared Del Carmen would be
entitled to relief under section 1170.95, Del Carmen requests we
direct the superior court on remand to immediately vacate his
murder conviction and resentence him or, at least, require it to
issue the order to show cause as provided in section 1170.95,
subdivision (c). The People, on the other hand, recognizing the
superior court must find Del Carmen has made a prima facie
showing he is entitled to relief before issuing an order to show
cause, insist the court made no such finding when it denied the
petition on constitutional grounds.
       The record supports the People’s argument. Although the
court stated “it would seemingly appear” Del Carmen was
entitled to relief, that observations falls short of the finding
required by the statute for issuance of an order to show cause.
(§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at pp. 328-
333.) Moreover, contrary to Del Carmen’s truncated view of the
process, after an order to show cause issues, absent a stipulation
that he is eligible to have his murder conviction vacated and
should be resentenced (§ 1170.95, subd. (d)(2)), the court must
hold an evidentiary hearing to determine whether to vacate the
murder conviction and to resentence Del Carmen (§ 1170.95,
subd. (d)(1)). While Del Carmen points to evidence in the record
to support his petition, the initial finding whether a prima facie
showing has been made for issuance of an order to show cause
must be made by the superior court in the first instance.




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                          DISPOSITION
       The order denying Del Carmen’s section 1170.95 petition
for resentencing on constitutional grounds is reversed. On
remand the superior court is to determine whether an order to
show cause should issue under section 1170.95, subdivision (c),
and, if an order to show cause is issued, to conduct further
proceedings in accordance with section 1170.95, subdivision (d).




                              PERLUSS, P. J.
      We concur:



            SEGAL, J



            FEUER, J.




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