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Filed 6/29/22 P. v. Gulley CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
RENECHA MARINA GULLEY,

Defendant and Appellant. C092839 (Super. Ct. No. 04F06339)

In September 2006, a jury found defendant Renecha Marina Gulley guilty of
assault and second degree murder. The trial court sentenced defendant to 25 years to life on the assault count and stayed an additional term of 15 years to life on defendant’s conviction for second degree murder.2

In Feb ruary 2019, defendant filed a petition f or resentencing under Penal Code
section 1170.95. 1 The trial court found defendant ineligible for relief because the factual summary in this court’s prior opinion indicated the jury could have found defendant guilty of murder under a direct aider and abettor theory.
Defendant timely appealed and now contends the trial cour t erred in determining defendant failed to state a prima facie case

. The Peop le concede the issue and agree the matter should be remanded for further proceedings. We accept the People’s concession.


### B ACKGROUND
On February 27 , 2019, defendant filed a petition for resentencing pursuant to
section 1170.95. The People filed a respo nse and moved the trial court to dismiss the petition. Defendant then filed her reply. After quoting extensively from this court’s prior opinion affirming defendant’s conviction, the court denied defendant’s petition without issuing an order to show caus e. In reaching its decision, the trial court f ound that although the jury “was instructed on both direct aiding and abetting and the natural and probable consequences doctrine, there was sufficient evidence for a juror to have found defendant

. . . guil t[y] based on an implied malice theory

. . . . As this could have occurred, defendant

. . . is not eligible to seek relief from her second degree murder conviction under Penal Code [section]
1170.95.” The court further explained it was not weighing evidence or making credibility
determination s but was “undertaking a review of the Third District’s appellate opinion and the sufficiency of the evidence presented at trial that would allow a jury to conclude, beyond a reasonable doubt, that defen dant

. . . is guilty of second degree murder based on

1 Undesignated statutory references are to the Penal Code.3

a theory of implied malice.” Thus, the court concluded, defendant failed to “set forth a prima facie case for relief” and did not issue an order to show cause.


### D ISCUSSION
Defendant contends the tria l court erred by denying her petition without issuing an
order to show cause and conductin g an evidentiary hearing. The People concede the
issue.

A. Legal Principles Senate Bill No. 1437 (2017

- 2018 Reg. Sess.), effective January 1, 2019, revised
the fe lony

- murder rule in California “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 hu man life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended the definition of malice in section 188, revised the definition of the degrees of murder to address felony

- murder liability in section 189, and add ed section 1170.95, “which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.” ( People v. Gutierrez

- Salazar (2019) 38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2

- 4.)
A s amended, section 1170.95, subdivision (a) allows a petitioner to “ file a petition with the court that sentenced the petitioner to have the petitioner ’s murder

. . . conviction
vacated and to be resentenced

. . . when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder [or] murder under the natural and probable consequences doctrin e

. . . . [¶] (2) The petitioner was convicted of murder

. . . following a trial or accepted a plea offer in lieu of a trial at which the petitioner could
have been convicted of murder

. . . . [¶] (3) The petitioner could not presently be4

convicted of murder

. . . bec ause of changes to Section 188 or 189 made effective January 1, 2019. ” Subdivision (c) of section 1170.95 sets forth the process for the trial court to consider such a petition. Under section 1170.95, subdivision (c), the court must appoi nt counsel, provide an opportunity for briefing, and then determine if the petitioner has made a prima facie showing that the petitioner is entitled to relief. ( People v. Lewis (2021) 11 Cal.5th 952, 957

- 958 ( Lewis ) .) “ If the petitioner makes a prima fac ie showing that the petitioner is entitled to relief, the court shall issue an order to show cause.” (§ 1170.95, subd. (c).)
S ectio n 1170.95, subdivision (c) requires only a single prima facie showing and entitles the petitioner to the appointment of co unsel upon the filing of a facially sufficient petition. ( Lewis, supra, 11 Cal.5th 952.) Once the court has appointed counsel and received briefing from the parties, it may rely on the record of conviction in determining whether that single prima facie showing has been made. ( Id . at p. 971.) The record of conviction includes a prior appellate court opinion, although such an opinion may not supply all necessary answers. ( Id . at p. 972.)

“ While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited. ” ( Lewis , supra , 11 Cal.5th at p. 971.) “ In reviewing any part of the rec ord of conviction at this preliminary juncture, a trial court should not engage in ‘ factfinding involving the weighing of evidence or the exercise of discretion. ’ ” ( Id . at p. 972; People v. Drayton (2020) 47 Cal.App.5th 965, 980 ( Drayton ).) “Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “ the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations

were p roved. If so , the court must issue an order to show cause.” ’ ” ( Lewis , supra ,5

11 Cal.5th at p. 971; see also Drayton , supra , 47 Cal.App.5th at p. 978.) Once the trial court issues an order to show cause, it must then conduct a hearing pursuant to the

p rocedures and burden of proof set out in section 1170.95, subdivision (d) unless the parties waive the hearing or the petitioner ’ s entitlement to relief is established as a matter of law by the record. (§ 1170.95, subd. (d)(2); D rayton , at pp. 980

- 981.) Although a court should not reject a petitioner ’ s factual allegations on credibility grounds without first conducting an evidentiary hearing ( Lewis , supra , 11 Cal.5th at

p. 971), the court need not credit factual assertions that are untrue as a matter of l aw ( Drayton , supra , 47 Cal.App.5th at p. 980). Thus, “ ‘if the record, including the court’s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court is justified in making a credibility determination adverse to the petitioner.” ’ ” ( Lewis , at p. 971 ; Drayton , at p. 979.)

B. Analysis The trial court here denied defendant’s petition after reviewing this court’s prior opinion on appeal. The court determined the facts as presented in our opinion were
sufficient to establish defendant was not entitled to resentencing. The court reasoned that because there was sufficient evidence to convict defendant of second degree murder based on an implied malice theory, defendant could still be convicted of second degree
murder after the changes to sections 188 and 189. This was error. In support of her resentencing petition, defendant alleged she was convicted of second degree murder pursuant to the felony

- murder rule or the natural and probable consequences doctrine. At t rial, the jury was instructed on the natural and probable consequences doctrine as well as the theories of direct aiding and abetting and implied malice in order to find defendant guilty of second degree murder. Thus , whether
defendant could have been con victed of second degree murder on an implied malice theory , as the trial court conclude d , the record does not belie defendant’s allegation that6

she was convicted on the natural and probab le consequences doctrine. (See Drayton , supra , 47 Cal.App.5th at p. 980

. ) As such, the court erred in denying defendant’s petition for resentencing without issuing an order to show cause.


### D ISPOSITION

T he trial court’s postconviction order denying defendant’s resentencing petition is
reversed. The matter is remanded with directions to issue an order to show cause and hold a hearing under section 1170.95, subdivision (d), as amended by Stats . 2021,
ch. 551.

HULL, Acting P. J.

We concur:

MAURO, J.

DU ARTE, J.