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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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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. 
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In February 2019, defendant filed a petition for 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 court erred in determining 

defendant failed to state a prima facie case. The People concede the issue and agree the 

matter should be remanded for further proceedings. We accept the People’s concession. 

BACKGROUND

On February 27, 2019, defendant filed a petition for resentencing pursuant to 

section 1170.95. The People filed a response 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 cause. 

In reaching its decision, the trial court found 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 . . . guilt[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 

determinations 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 defendant . . . is guilty of second degree murder based on 

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 Undesignated statutory references are to the Penal Code.
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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. 

DISCUSSION

Defendant contends the trial court erred by denying her petition without issuing an 

order to show cause and conducting 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 felony-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 human 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 added 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.)

As 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 doctrine . . . . [¶] (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 be 
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convicted of murder . . . because 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 appoint 

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 facie showing 

that the petitioner is entitled to relief, the court shall issue an order to show cause.” 

(§ 1170.95, subd. (c).)

Section 1170.95, subdivision (c) requires only a single prima facie showing and 

entitles the petitioner to the appointment of counsel 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 record 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 proved. If so, the court must issue an order to show cause.” ’ ” (Lewis, supra, 
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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 

procedures 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); Drayton, 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 law 

(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 trial, 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 convicted of second degree murder on an implied malice 

theory, as the trial court concluded, the record does not belie defendant’s allegation that
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she was convicted on the natural and probable 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.

DISPOSITION

The 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.

 

DUARTE, J.