Filed 2/16/21 P. v. Gandara CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

GUILLERMO HUMBERTO 

GANDARA,

Defendant and Appellant.

 B298394

 (Los Angeles County

 Super. Ct. No. BA005631)

APPEAL from an order of the Superior Court of Los 

Angeles County, Roosevelt F. Dorn, Judge. Affirmed.

Jonathan E. Demson, under appointment of Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, 

Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, 

Deputy Attorneys General, for Plaintiff and Respondent.

____________________________
2

Defendant’s petition for resentencing under Penal Code 

section 1170.95 was summarily denied.1 As defendant was not 

eligible for relief as a matter of law, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Underlying Offense, Conviction, and Appeal2

Following a brief confrontation in which the victim was 

held against a fence by a group of men, and codefendant Macario 

Aguirre struck him in the face, the victim walked away and 

picked up a rock. Aguirre told defendant to shoot him. 

Defendant slowly and deliberately took out a gun, aimed it at the 

victim, and shot. The victim ran away, and subsequently died 

from a gunshot to his left thigh; the bullet had severed his 

femoral artery. 

Defendant and Aguirre were charged with a single count of 

murder (§ 187). It was further alleged that defendant personally 

used a firearm (§ 12022.5) and a principal was armed (§ 12022, 

subd. (a)(1)).

The case proceeded to jury trial. Defendant offered a 

defense that did not challenge his identity as the shooter; 

instead, he argued only that he lacked the intent necessary for 

murder – suggesting (via a third-party witness) that he had 

intended only to scare the victim. In argument to the jury, his 

1 All further undesignated statutory references are to the

Penal Code.

2 We take our discussion of the facts from the opinion 

affirming defendant’s conviction, of which we have taken judicial 

notice. (People v. Gandara (July 24, 1992, B054597) [nonpub. 

opn.].) As relevant to our procedural discussion, we have also 

taken judicial notice of excerpts from the prior appellate record.
3

counsel suggested that the shooting was in self-defense or defense 

of another or, in the alternative, constituted only manslaughter. 

The jury found both defendants guilty of second-degree 

murder. The jury found true the allegations that defendant 

personally used a firearm and that a principal was armed. As to 

Aguirre, the jury found the principal armed allegation not true. 

Defendant was sentenced to prison for 15 years to life for 

the murder, plus 2 years for the personal use enhancement. 

On appeal, a prior panel of this appellate division affirmed. 

In responding to the defendants’ argument that their motion for 

acquittal should have been granted, the panel found sufficient 

evidence to support the verdicts. The court explained, “Appellant 

Gandara, with the aid and encouragement of appellant Aguirre, 

shot directly at the victim with a deadly weapon, killing the 

victim.” 

2. Defendant’s Section 1170.95 Petition

On January 7, 2019, defendant, representing himself, filed 

a form petition for resentencing under section 1170.95. He 

requested counsel. 

On the form, a defendant is to check Box 5 if he has been 

convicted of first-degree felony murder and Box 6 if convicted of 

second-degree murder under felony-murder or the natural and 

probable consequences doctrine. Defendant checked Box 6 and 

not Box 5. However, defendant checked some, but not all, of the 

boxes under Box 5. That is, defendant checked the box for “I was 

not a major participant in the felony or I did not act with reckless 

indifference to human life during the course of the crime or 

felony.” He left unchecked, “I was not the actual killer.” 

Although defendant was not required to check any of the boxes 

under Box 5 – as he did not check Box 5 itself – the fact that he 
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checked some but not others is consistent with his role as the 

actual killer.

On March 8, 2019, the court took the matter under 

submission. On March 20, 2019, the prosecution simultaneously 

filed a request for an extension to file an informal response to the 

petition, and an opposition to the petition arguing section 1170.95 

is unconstitutional.3

On March 28, 2019, the trial court issued an order stating 

that it had read the petition and, based on that review, defendant 

“has not made a prima facie claim for relief, as the statute, and 

the language of this petition, require.” The court referred to Box 

5 of the petition, which suggests that the court was focused on 

defendant’s failure to assert he was not the actual killer.

Defendant filed a timely notice of appeal.

DISCUSSION

On appeal, defendant argues only that the trial court erred 

in denying his petition without appointing counsel.

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) 

invalidated the natural and probable consequences doctrine as it 

relates to murder, and narrowed liability for felony murder. 

(People v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), 

review granted Mar. 18, 2020, S260493.) It also enacted section 

1170.95, providing a means by which a defendant convicted of 

murder under prior authority could seek resentencing under the 

new version of the law. 

3 The opposition contained a single sentence arguing that, 

even if the statute were constitutional, it would not apply to 

defendant because he was the actual shooter. 
5

Once a section 1170.95 petition is filed, there follows a 

multi-step process by which the court first determines whether 

the petition is facially complete, and, if so, whether the petitioner 

has made a prima facie showing that he falls within the 

provisions of statutory eligibility. (People v. Torres (2020) 

46 Cal.App.5th 1168, 1177 (Torres), review granted June 24, 

2020, S262011.) 

The materials which the court can review at this stage 

include the prior appellate opinion. (People v. Lee (2020) 

49 Cal.App.5th 254, 263, review granted July 15, 2020, S262459; 

People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, fn. 7, review 

granted Mar. 18, 2020, S260598.) If the court determines the 

petitioner is ineligible for relief as a matter of law, the petition is 

denied at this first stage; if not, the court proceeds to the next 

step. (Torres, supra, 46 Cal.App.5th at pp. 1177-1178.)

At the first stage, the court’s inquiry is only whether the 

defendant is ineligible for relief under section 1170.95 as a 

matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 329.) If, for 

example, the court’s review of the record of conviction necessarily 

establishes the defendant was convicted on a ground that 

remains valid after SB 1437’s amendment of murder law, the 

petition may be denied at this stage. (Id. at pp. 329-330.) But if 

the court “cannot rule out the possibility that the jury relied on” a 

theory invalidated by SB 1437, there is no prima facie 

ineligibility. (People v. Offley (2020) 48 Cal.App.5th 588, 599.)

There is no statutory right to counsel at this first, prima 

facie, stage of review. (Verdugo, supra, 44 Cal.App.5th at p. 323; 

see also People v. York (2020) 54 Cal.App.5th 250, 253, review 

granted Nov. 18, 2020, S264954; but see People v. Cooper (2020) 

54 Cal.App.5th 106, review granted Nov. 10, 2020, S264684.) 
6

Neither the federal nor state constitutions require appointment 

of counsel in a collateral proceeding such as this. The 

constitutional right to counsel applies at all critical stages of the 

process. (People v. Rouse (2016) 245 Cal.App.4th 292, 296-297.) 

The essence of a critical stage is “ ‘ “the adversary nature of the 

proceeding, combined with the possibility that a defendant will be 

prejudiced in some significant way by the absence of counsel.” 

[Citation.]’ ” (Id. at p. 297.) The prima facie determination, in 

which the court does not resolve disputed issues of fact, is nonadversarial, and counsel is not constitutionally required. (See In 

re Clark (1993) 5 Cal.4th 750, 780 [due process requires 

appointment of counsel “if a petition attacking the validity of a 

judgment states a prima facie case leading to issuance of an order 

to show cause”]; People v. Barton (1978) 21 Cal.3d 513, 519, fn. 3 

[same].)

Defendant was therefore not entitled to counsel at the 

prima facie stage. Although defendant does not otherwise 

challenge the merit of the trial court’s ruling, we briefly address 

it. The trial court mistakenly relied on the boxes defendant did 

and did not mark in his petition, in order to conclude defendant 

was the actual killer. However, the facts of the crime as set forth 

in the appellate opinion, as well as the fact that defendant alone 

was found to have personally used a firearm, confirm that 

defendant was, in fact, the actual killer, and therefore ineligible 

for relief.

/ / /

/ / /
7

DISPOSITION

The order denying defendant’s section 1170.95 petition is 

affirmed. 

RUBIN, P.J.

WE CONCUR:

BAKER, J.

MOOR, J.