Filed 11/9/21 P. v. Johnson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES WILLIS JOHNSON,

Defendant and Appellant.

F081252

(Super. Ct. No. BF134515A)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kern County. John R. Brownlee, 

Judge.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and 

Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Levy, Acting P. J., Peña, J. and Smith, J.
2.

INTRODUCTION

In 2013, a jury convicted petitioner James Willis Johnson of the second degree 

murder of his one-month-old son1(Pen. Code,2 § 187, subd. (a)). For this offense, the 

trial court sentenced petitioner to a term of 15 years to life, stayed pursuant to 

section 654. 

In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. 

The court denied the petition without issuing an order to show cause on the ground 

petitioner was not prosecuted or convicted under a theory of felony murder or murder 

under the natural and probable consequences doctrine, as required for resentencing relief 

under section 1170.95. 

On appeal, petitioner asserts he established a prima facie claim for resentencing 

relief, and the court therefore erred in denying the petition without issuing an order to 

show cause or holding an evidentiary hearing. The People concede error but dispute the 

standard of review to be applied on remand. We agree with petitioner and reverse.

FACTUAL AND PROCEDURAL HISTORY

In this court’s opinion on petitioner’s direct appeal,3 we described the facts 

leading to his convictions as follows:

“Denise Belmonte was Johnson’s partner and the mother of his three 

children. The third child, a boy named Jordan, was the victim in this case. 

He was born on October 6, 2010, and was just over a month old when he 

died. 

“Belmonte called 911 around 9:20 a.m. on November 10, 2010. A 

paramedic who responded found Belmonte on the floor administering CPR 

to Jordan. No one else was in the room. Jordan was not breathing and had 

1 Petitioner was convicted of additional offenses as described below.

2 Undesignated statutory references are to the Penal Code.

3 We grant the People’s unopposed request for judicial notice of the records in 

(People v. Johnson (Mar. 17, 2015, F067359) [nonpub. opn.].) (Evid. Code, §§ 452, 

subd. (d)(1), 459, subd. (a).) 
3.

no pulse. The paramedic observed rigor mortis in Jordan’s jaw when he 

attempted to place a breathing tube. He concluded that Jordan was dead. 

“Jordan was taken to an emergency room, where he was declared 

dead at 9:45 a.m. An emergency room doctor believed Jordan died earlier 

than 8:30 p.m. the previous night. An autopsy found the cause of death to 

be multiple blunt force injuries. Both arms, both legs, and two ribs were 

fractured. The liver was lacerated and bled internally; this was probably the 

predominant injury. The brain was swollen and there was bleeding inside 

the skull. These injuries were consistent with Jordan having been punched 

or having collided with a solid object after being thrown. There were at 

least two blows, one to the front of the abdomen on the right side and one 

on the back left. 

“There also were burns, which appeared to predate the other injuries, 

as they had become infected and had started to turn green. These were 

third-degree burns covering Jordan’s buttocks and genitalia and his lower 

abdomen. They were caused by contact with a liquid at a temperature of 

140 degrees or more for no more than 45 seconds. 

“Hypovolemic shock, which is a kind of circulatory collapse, was 

caused by the bleeding from the internal injuries, as well as by the burns, 

and led to death. The pathologist who conducted the autopsy concluded 

that the manner of death was homicide. Jordan’s blood tested positive for 

THC and acetaminophen. 

“The district attorney filed an information against Johnson and 

Belmonte. It charged both defendants with three counts: (1) premeditated 

murder (Pen. Code, § 187, subd. (a)); (2) assault on a child under age eight 

with force likely to produce great bodily injury and resulting in death 

(§ 273ab); and (3) willfully causing or permitting a child to suffer 

unjustifiable physical pain or mental suffering, under circumstances likely 

to produce great bodily injury or death (§ 273a, subd. (a)). In connection 

with count 3, the information alleged for sentence-enhancement purposes 

that Johnson and Belmonte each personally inflicted great bodily injury on 

Jordan. (§ 12022.7, subd. (d).) The information charged Johnson alone 

with resisting arrest, a misdemeanor. (§ 148, subd. (a)(1).) 

“Belmonte entered into a plea agreement. In exchange for her 

testimony against Johnson and her plea of guilty to child endangerment and 

voluntary manslaughter, Belmonte received a determinate prison term of 15 

years. 
4.

“Belmonte was the prosecution’s primary witness at trial. She 

testified that she met Johnson in 2005, when she was 16 and Johnson was 

26. Johnson already had a son. Their first child together, Jade, was born in 

2008 and their second, James, in 2009. 

“Belmonte testified that Johnson was physically abusive to her 

throughout their relationship. She also testified that she had no bond with 

James because he was a boy; she said her mother favored boys and she 

wanted to do the opposite. County authorities removed both children from 

the parents’ custody. 

“Belmonte regained custody of Jade in September 2010, after falsely 

assuring the social worker that she was separated from Johnson and living 

on her own in a motel. Before giving birth to Jordan in October 2010, 

Belmonte admitted she was not really living at the motel, and she gave Jade 

to the social worker to be placed with James. Belmonte and Johnson 

convinced the social worker that Belmonte would be living with Johnson’s 

mother after Jordan was born, however, so Jade was returned to Belmonte 

when she left the hospital with Jordan. Immediately after this, Belmonte 

and Johnson resumed living together. 

“Belmonte testified about Johnson’s behavior toward Jordan during 

the month Jordan lived. She found recordings Johnson had made with his 

phone of speeches Johnson made to Jordan. In these recordings, Johnson 

spoke to Jordan in an adult manner about adult subjects, such as growing 

marijuana. Johnson also took Jordan to a room in the apartment where 

marijuana was grown and tried to show Jordan how to grow it. He tried to 

show Jordan how to box. He pushed Jordan’s legs up so his feet touched 

his head, trying to make Jordan more flexible. Johnson held Jordan upside 

down by the legs and swung his body. He swaddled Jordan improperly. 

Sometimes Johnson swaddled Jordan in such a way as to hold Jordan’s 

pacifier in mouth, because Johnson did not like it when Jordan spit the 

pacifier out. Other times, Johnson swaddled Jordan so that Jordan’s arms 

were behind his back. Belmonte told Johnson not to do these things, and 

Johnson said he would do whatever he wanted if he really was Jordan’s 

father. During Jordan’s life and Belmonte’s pregnancy with Jordan, 

Johnson often expressed doubt about whether he was Jordan’s father, 

sometimes leading to physical abuse of Belmonte. 

“According to Belmonte’s testimony, Jordan sustained the burns on 

his lower body on November 3, 2010, a week before his death. That night, 

Belmonte, Johnson, and Jade were in their living room playing a video 

game when Jordan’s diaper needed to be changed. Johnson took Jordan to 

the bathroom to rinse him off. Belmonte and Johnson sometimes used baby 
5.

wipes when changing Jordan, but other times they washed him off in the 

sink. While Johnson and Jordan were in the bathroom, Belmonte heard 

Jordan cry, but this was not unusual, since Jordan did not like water. When 

Johnson came back with Jordan, however, he was ‘frantic’ and said he had 

burned Jordan. Belmonte could see that Jordan’s buttocks and genitals had 

been burned; they were bright red. 

“Belmonte wanted to take Jordan to the doctor, but Johnson said 

they would lose the kids, he would go to jail, and he would kill her. They 

argued, and Johnson hit Belmonte. 

“They decided to go to a store to get something to treat the burns. 

They went to a Walgreens and got some ointment, which they applied over 

the next few days. Jordan cried when anything touched the burns, and after 

a day or two they turned brown and then green. Belmonte gave Jordan 

Tylenol or Motrin for pain, and she saw Johnson rub Vicodin on Jordan’s 

gums. She also saw Johnson blowing marijuana smoke into Jordan’s 

mouth. Belmonte never sought medical treatment for Jordan because 

Johnson would not allow her to do so, though she asked many times. 

“Belmonte testified that on November 9, 2010, the night before the 

morning on which Jordan was found dead, Jordan was quieter than usual 

and was moaning even when no one was touching him. They had argued 

over the cost of diapers that day, and Johnson had hit Belmonte several 

times and deliberately broken her cell phone. After they had run several 

errands and eaten dinner, Belmonte was going to go out to another store. 

Johnson became angry and said Belmonte could not leave. He grabbed her 

hair, punched her, and pushed her into the bedroom. In the bedroom, 

Johnson choked Belmonte until she was unconscious. 

“When Belmonte regained consciousness, Jade was on top of her. 

Belmonte heard Jordan crying. She went into the living room and saw 

Johnson with Jordan. Johnson was holding Jordan upside down by one leg. 

Belmonte tried to take Jordan from Johnson. Johnson ‘swung Jordan 

backward and threw him on the bed.’ Jordan hit a couch and landed on a 

bed beside it. Belmonte went toward Jordan, but Johnson picked him up 

first. Johnson and Belmonte had a tug-of-war over a blanket. Johnson got 

the blanket and wrapped Jordan in it. Belmonte tried to grab Jordan. 

Johnson said Jordan would not shut up and punched him in the chest. 

Johnson also attacked Belmonte and tried to choke her again. Jordan cried 

after being punched, but then became quiet. Johnson put Jordan in a car 

seat. Belmonte touched Jordan and saw that he was breathing. Belmonte 

and Johnson continued arguing for a while and then fell asleep some time 

after midnight. Belmonte woke up and checked on Jordan once during the 
6.

night. She offered him a bottle, but he did not wake up. She took Jordan’s 

temperature and found it to be 93.1, which she thought was normal. 

“Belmonte and Johnson woke up in the morning, and after a while, 

Johnson checked on Jordan and found he was nonresponsive. Belmonte 

washed Jordan and put clean clothes on him. Johnson and Belmonte 

argued about whether Jordan was breathing. Jordan continued to be 

nonresponsive and Belmonte called 911. She administered CPR until the 

ambulance came. Johnson took Jade into the bedroom and did not come 

out while the emergency personnel were present. Belmonte went to the 

hospital with Jordan in the ambulance. 

“At the hospital, medical staff told Belmonte Jordan was dead. 

Belmonte sent Johnson a text message and spoke to him by phone, telling 

him to come to the hospital. He did not come until after Belmonte had left. 

Belmonte was arrested the same day. 

“Belmonte testified that she exchanged letters with Johnson while 

they both were incarcerated after Jordan’s death. She said, ‘[In one] of the 

first letters I got he asked me to take the case for him or he would take it all 

the way to the box.’ She admitted that, in one of her letters to Johnson, she 

graphically described their sex life. She testified that she was going to see 

him soon when she wrote the letter and did it to discourage him from 

threatening her as he had done at a previous court appearance. 

“Belmonte denied that she hurt Jordan or did anything to assault him 

physically. 

“On cross-examination, Belmonte was impeached with a juvenile 

adjudication for petty theft, a conviction of using stolen credit cards, a 

conviction of writing checks with insufficient funds, and several lies she 

told to county child welfare officials. She also admitted that, after she was 

arrested, she made false statements to police about the apparent severity of 

Jordan’s burns, the steps she took in response to the burns, and her living 

arrangements. Further, she admitted she was ‘involved in a tax scam’ while 

in custody. 

“David Nelson, a paramedic who responded to Belmonte’s 911 call, 

testified that when he arrived, Belmonte was ‘distraught’ and did not give a 

‘straight answer’ when he asked what happened to Jordan. Fire Captain 

Basil Rios testified that when he came to the scene, Belmonte was 

screaming and did not give complete answers to his questions about what 

happened to Jordan. 
7.

“Terri Haynes, a police officer, testified that she was at the hospital 

with Belmonte after Jordan was declared dead. Belmonte asked Haynes 

whether Haynes thought Jordan died of sudden infant death syndrome. 

Contrary to Nelson’s testimony, Haynes testified that the paramedics told 

her Belmonte did not seem upset when they contacted her at the apartment. 

Haynes also said she did not recall Belmonte showing emotion at the 

hospital. But Haynes’s partner, Molly Hessler, testified that she also was 

present at the hospital and that Belmonte appeared traumatized when 

Jordan was declared dead. 

“Detective Martin Heredia testified that he arrested Belmonte and 

interviewed her a number of times. He spent about four hours with her. 

During the interview, Belmonte initially said she did not live in the 

apartment. She never told Heredia that Johnson threw or punched Jordan. 

She did not even admit that Johnson was present when Jordan was injured 

until one of the later interviews. At some point during Heredia’s 

questioning, however, Belmonte did blame Johnson for the injuries and 

burns that caused Jordan’s death. 

“In September and October 2012, almost two years after Jordan’s 

death, Belmonte was interviewed four times by Patricia Poeschel, an 

investigator with the district attorney’s office. Poeschel testified that at 

first, Belmonte did not say Johnson threw or punched Jordan and did not 

mention any argument or fight she had had with Johnson. Poeschel 

repeatedly told Belmonte she did not believe Belmonte was telling the 

whole truth. Belmonte told Poeschel she did not know about Jordan’s 

broken bones. Poeschel showed Belmonte x-ray pictures revealing the 

broken bones. It was after this that Belmonte first said Johnson threw and 

punched Jordan. Two of the interviews were recorded. A portion of the 

recording was played for the jury and a transcript was provided. Poeschel 

also testified that neither she nor the prosecutor ever threatened to take 

Belmonte’s plea deal away because they did not believe she was telling the 

whole truth. 

“In the partial transcript of the interviews that is included in the 

appellate record, Poeschel tells Belmonte she thinks Belmonte might be 

hiding some of the facts to deny her own responsibility. She also says 

Belmonte is protecting Johnson. Poeschel further suggests that Belmonte 

knew Jordan had been hurt on the night he died, but then she left the 

apartment, smoked marijuana and got drunk. Poeschel claims to have 

spoken to inmate witnesses who supported this account. Belmonte says she 

has been threatened and believes that if she provides information that will 

result in a life sentence for Johnson, Johnson will cause her to be attacked 
8.

or killed while in prison. Then she cries and begins giving an account 

similar to the account in her testimony, starting with the time when she reenters the living room after being assaulted by Johnson in the bedroom and 

sees Johnson holding Jordan upside down by one foot. 

“Lonnie Richardson, a neighbor of Belmonte and Johnson, testified 

that, in October 2010, she heard an argument between them through the 

wall. She heard Johnson say, ‘Be the mother and get your [ass] in here and 

take care of him before I beat the hell out of him.’ 

“Nada Yorke, a social worker, testified for the prosecution as an 

expert on battered women’s syndrome (or intimate partner battering 

syndrome, as it also is called). Among other things, Yorke said that abused 

people often lie to conceal their situations from child welfare authorities in 

an effort to keep their children out of foster care, especially if they were 

placed in foster care as children themselves, as Belmonte was. Yorke also 

said that the cycle of abuse can continue even when one or both parties to 

an abusive relationship are in prison. 

“A police officer testified that the temperature of the running water 

in the apartment was checked. The hot water in the kitchen and the 

bathroom reached 148 degrees within two minutes of being turned on. The 

hot water heater was set on high. 

“The defense called a witness who was sworn in as Allen Ladsky. 

He said he was in jail in January 2011 in a cell next to Johnson’s cell, when 

he overheard a conversation between Johnson and Belmonte. He heard 

Belmonte tell Johnson ‘something like even if—no matter what, even 

though I did [it], we’re both going to go down for it, or something of that 

sort.’ Ladsky testified that he was present in court against his will and 

believed Belmonte would use gang associates to retaliate against him. The 

court had to order Ladsky to testify, telling him that if it ruled him in 

contempt, it could keep him in custody until the end of the trial, which was 

scheduled to last nearly three more weeks. 

“An investigator named Daniel Stevenson with the district attorney’s 

office testified that Ladsky told him he fabricated the story about 

overhearing a conversation between Johnson and Belmonte. Ladsky said 

he did this at Johnson’s request. Stevenson said Ladsky made this 

statement after Stevenson told Ladsky that Stevenson could ‘go to bat’ for 

Ladsky. Ladsky testified that he did indeed tell Stevenson he fabricated the 

story; this was a lie; and he told Stevenson the lie hoping it would cause 

Johnson’s counsel not to call Ladsky as a witness at trial so he could avoid 

testifying and facing retaliation. 
9.

“Ladsky was impeached with prior convictions of falsely identifying 

himself to police, possessing drugs for sale, resisting arrest, and possessing 

stolen property. He also said he was a former member of a white 

supremacist gang, he had a swastika tattooed on his arm, and Allen Ladsky 

was not his real name. Ladsky testified that he saw Belmonte’s face and 

could pick her out of a lineup, but Stevenson testified that he showed 

Ladsky a photo lineup including Belmonte, and Ladsky could not identify 

her. 

“The defense called Juan Garza, an investigator with the public 

defender’s office, who testified that he spoke with Nelson, the paramedic, 

in 2012. At that time, Nelson recalled that, when he responded to 

Belmonte’s 911 call, Belmonte acted suspicious. She seemed nervous, her 

account of events did not make sense, and she was not upset or crying. 

“Detective Heredia, called back as a defense witness, testified that 

when he interviewed Belmonte shortly after Jordan’s death, Belmonte did 

not mention that Johnson assaulted her the night before. Heredia did not 

see any signs of injury on Belmonte. 

“Finally, Jeff Cameron, a deputy coroner, testified for the defense 

that he saw and touched Jordan the morning Jordan was brought to the 

hospital. Jordan was warm and not stiff. Cameron was not a medical 

doctor. 

“In her closing argument, the prosecutor presented several 

alternative theories of murder to the jury. She said it could find first degree 

murder by finding that Johnson picked Jordan up by one foot and then 

threw and punched him, as Belmonte testified. When Johnson picked 

Jordan up, he intended to kill Jordan and he had time to deliberate and 

reflect on what he was doing. ‘I would argue to you that why else do you 

throw and punch a 33-day-old baby,’ the prosecutor said. 

“Next, the prosecutor explained that the jury could find second 

degree murder in a number of different ways. It could find that Johnson 

intended to kill Jordan but did not premeditate and deliberate. It also could 

find that Johnson did not intend to kill Jordan—only to abuse or hurt him—

but inflicted the blows with conscious disregard for his life. Or it could 

disbelieve Belmonte and find that she inflicted the beating, but could also 

find that Johnson, being Jordan’s father and having a duty to protect him, 

failed in this duty and did so with conscious disregard for Jordan’s life. 

“On the second count, assault on a child under eight resulting in 

death, the prosecutor told the jury it could find Johnson guilty if it found 
10.

that Johnson inflicted the beating; that a reasonable person would think the 

beating was likely to produce great bodily injury; that Jordan died from it; 

and that Jordan was in Johnson’s care and custody. 

“For the third count, child abuse, neglect or endangerment, the 

prosecutor focused on the burns and the failure to get them treated. If 

Jordan was in Johnson’s care and custody and the circumstances were 

likely to cause great bodily injury, the jury could find Johnson guilty if it 

believed Johnson willfully or with criminal negligence caused the burns 

and failed to get treatment, or if it believed Belmonte inflicted the burns, 

and Johnson willfully or with criminal negligence failed to get treatment. 

The jury could find true the enhancement allegation for this count only if it 

found that Johnson personally inflicted the burns on Jordan. 

“The prosecutor also explained that the jury could find Johnson 

guilty of any of the first three counts under a theory that he aided and 

abetted Belmonte. 

“Defense counsel, in his closing argument, urged the jury to find 

Johnson not guilty of counts 1 and 2 and guilty of count 3, and to find the 

enhancement allegation on count 3 not true. His theory was that Belmonte 

inflicted both the beating and the burns as revenge against Johnson for 

Johnson’s abuse of her and because of her animosity toward boys. When 

Belmonte was beating Jordan to death, Johnson was asleep. Johnson was 

guilty only of failing to get treatment for the burns. Defense counsel denied 

that the burns were proved to be a substantial factor in causing Jordan’s 

death.” (People v. Johnson, supra, F067359, fn. omitted.) 

On February 16, 2011, the Kern County District Attorney filed an information 

charging petitioner with first degree premeditated murder (§ 187, subd. (a); count 1), 

custodial assault of a child under eight years of age, resulting in death (§ 273ab; count 2), 

child endangerment with an enhancement for personal infliction of great bodily injury 

(§§ 273a, subd. (a), 12022.7; count 3) and resisting arrest (§ 148, subd. (a)(1); count 4).4 

On April 9, 2013, a jury convicted petitioner on count 1 of the included offense of 

second degree murder. The jury found petitioner guilty as charged on counts 2 through 4, 

but found not true the great bodily injury enhancement to count 3. 

4 Belmonte was charged as a codefendant in counts 1 through 3. She is not a party 

to this appeal. 
11.

On May 7, 2013, the trial court sentenced petitioner on count 2 to a term of 

25 years to life, on count 3 to a consecutive, determinate term of six years, and on count 4 

to a concurrent 30-day term. On count 1, the court imposed and stayed a sentence of 

15 years to life (§ 654). Judgment was entered on May 9, 2013. 

Petitioner appealed and, on March 17, 2015, this court affirmed the judgment 

subject to conditions not relevant here. (People v. Johnson, supra, F067359.) 

On February 14, 2019, petitioner, in propria persona, filed a petition for 

resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a 

complaint, information, or indictment was filed against him that allowed him to be 

prosecuted under a theory of felony murder or murder under the natural and probable 

consequences doctrine; he was convicted of first or second degree murder at trial; and he 

could not now be convicted of first or second degree murder because of changes made to 

sections 188 and 189, effective January 1, 2019. 

On February 22, 2019, the court appointed counsel to represent petitioner on the 

petition. 

On March 1, 2019, the People filed a motion to dismiss the petition, arguing 

section 1170.95 is unconstitutional. On February 10, 2020, the People filed an opposition

to the petition on the merits. Therein, the People argued petitioner was not convicted 

pursuant to a felony murder theory or the natural and probable consequences doctrine. 

The People specifically asserted that the jury was not instructed on the natural and 

probable consequences doctrine, nor did the People argue this theory at trial. Petitioner, 

through counsel, filed replies to both the motion to dismiss and the opposition. 

On June 3, 2020, the court denied the petition. The court noted that, in 

determining resentencing eligibility, the court was permitted to consider “the petition 

itself, in addition to records of conviction that are readily available to the Court,” 

including “the Abstract of Judgment, the Information or the charging documents, verdict 

form, [and] the opinion authored by the Court of Appeal.” The court noted that it had 
12.

considered those documents, as well as the jury instructions, and had “heard and [was] 

very familiar with this case.” The court continued:

“The Court finds that the People did not proceed under a theory of felony 

murder or murder under the natural and probable consequences doctrine, as 

the defendant was either the principal in the murder or his conduct directly 

led to the death of the victim.” 

On that basis, the petition was denied. This timely appeal followed. 

DISCUSSION

I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend 

the felony murder rule and the natural and probable consequences doctrine, as it relates to 

murder, 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 accomplished this task by adding three separate provisions to the 

Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend 

the natural and probable consequences doctrine, the bill added section 188, subdivision 

(a)(3), which requires a principal to act with malice aforethought before he or she may be 

convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842‒843.) Second, to 

amend the felony-murder rule, the bill added section 189, subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying 

felonies] 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 
13.

indifference to human life, as described in subdivision (d) of Section 

190.2.”5 (§ 189, subd. (e); accord, Gentile, at p. 842.)

Finally, the bill “added section 1170.95 to provide a procedure for those convicted of 

felony murder or murder under the natural and probable consequences doctrine to seek 

relief under the two ameliorative provisions above.” (Gentile, at p. 843.)

“Section 1170.95 lays out a process for a person convicted of felony murder or 

murder under a natural and probable consequences theory to seek vacatur of his or her 

conviction and resentencing.” (Gentile,supra, 10 Cal.5th at p. 853.) First, “an offender 

must file a petition in the sentencing court averring that: ‘(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 first degree or second degree murder 

following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be 

convicted for first degree or second degree murder[;] [¶] [and] (3) The petitioner could 

not be convicted of first or second degree murder because of changes to Section 188 or 

189 made effective January 1, 2019.’ (§ 1170.95, subds. (a)(1)˗(3); see also § 1170.95[,]

subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the petitioner requests 

the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply 

with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of 

another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis (2021) 11 Cal.5th 952, 

959‒960 (Lewis).)

Where the petition complies with the requirements of section 1170.95, 

subdivision (b)(1), counsel must be appointed, if requested. The prosecutor must file a 

response and the petitioner may file a reply. The trial court must then review the petition 

5 Additionally, section 189 was amended to allow for felony-murder liability where 

the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 

57 Cal.App.5th 666, 672, review granted Feb. 24, 2021, S266336.)
14.

to determine if the petitioner has made a prima facie showing that he or she is entitled to 

relief. (Lewis, supra, 11 Cal.5th at pp. 961‒963, 967; § 1170.95, subd. (c).) In making 

this determination, the court may rely on the record of conviction. (Lewis, at pp. 970‒

971.) However, the prima facie inquiry is limited and, at this stage of the proceedings, 

the court “should not engage in ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’ ” (Id. at pp. 971‒972.) 

If the court determines the petitioner has met his or her prima facie burden, “the 

trial court must issue an order to show cause and hold a hearing to determine whether to 

vacate the murder conviction and to resentence the petitioner on any remaining counts.

(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a 

reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95, 

subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or 

offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,

supra, 10 Cal.5th at p. 853.)

To demonstrate prejudice from the denial of a section 1170.95 petition before the 

issuance of an order to show cause, the petitioner must show it is reasonably probable 

that, absent error, his or her petition would not have been summarily denied without an 

evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972‒974; see People v. Watson

(1956) 46 Cal.2d 818, 836.) 

II. The Trial Court Erred in Failing to Issue an Order to Show Cause

The trial court denied petitioner’s petition for resentencing on the ground that he 

had not made a prima facie showing he was entitled to relief. Thus, the court did not 

issue an order to show cause or conduct an evidentiary hearing. The People concede this 

was error because neither the petition nor the record established that petitioner was 
15.

indisputably ineligible for resentencing.6 (See People v. Duchine (2021) 60 Cal.App.5th 

798, 815 (Duchine) [“[A]bsent a record of conviction that conclusively establishes that 

the petitioner engaged in the requisite acts and had the requisite intent, the trial court 

should not question [the petitioner’s] evidence.”]; accord, Lewis, supra, 11 Cal.5th at 

p. 971.)

The court found petitioner was ineligible for resentencing because he was not 

prosecuted or convicted under the natural and probable consequences theory. However, 

the record leaves room for doubt on this point. At trial, the jury was instructed on the 

degrees of murder and different theories of murder, including express and implied malice,

deliberate and premeditated murder, unpremeditated murder of the second degree, and 

second degree murder resulting from an unlawful act (or intentional failure to act), the 

natural consequences of which are dangerous to life. The jury also was instructed on 

general principles of aiding and abetting, as well as the possibility of finding petitioner 

guilty of murder upon finding that he aided and abetted felony child endangerment, and 

that murder was a natural and probable consequence of the commission of that crime. 

The jury was further instructed on the elements of felony child endangerment and the 

requirements for finding personal infliction of great bodily injury as to that crime. 

The prosecutor argued to the jury that petitioner beat his son to death and, 

alternatively, if Belmonte inflicted the fatal injuries, petitioner would be guilty as an aider 

and abettor. One of the theories argued by the prosecutor was that petitioner would be 

guilty of murder if he aided and abetted Belmonte in committing child endangerment, and 

the natural and probable consequence of such crime was murder. The prosecutor also 

argued petitioner would be guilty of murder if the jury concluded Belmonte burned the 

infant and petitioner allowed the infant to go untreated, because the infant’s death would 

6 Petitioner argues the court was limited to reviewing the petition itself, and could 

not consider the record of conviction. Our Supreme Court recently held otherwise. 

(Lewis, supra, 11 Cal.5th at pp. 970‒972.) 
16.

be a natural and probable consequence of that negligence. In this regard, the prosecutor 

argued: “If you don’t believe [Belmonte], you say, you know, she got that plea 

agreement, she is a liar, she’s, you know, whatever, you can still find the defendant guilty 

by aiding and abetting. The natural and probable consequences doctrine that I just went 

over with you.” 

Based on the foregoing, it is possible the jury convicted petitioner on the theory 

that the infant’s murder was the natural and probable consequence of child 

endangerment, which crime petitioner aided and abetted. We therefore cannot conclude, 

as a matter of law, that petitioner is ineligible for resentencing relief. (Lewis, supra,

11 Cal.5th at pp. 971‒972; Duchine, supra, 60 Cal.App.5th at p. 815 [holding that, where 

the record is not dispositive of factual issues, “the time for weighing and balancing and 

making findings on the ultimate issues arises at the evidentiary hearing stage rather than 

the prima facie stage”].) The trial court erred in holding otherwise. 

Because petitioner adequately alleged a prima facie claim for relief and the record 

does not rebut his allegations as a matter of law, the court was required to issue an order 

to show cause (§ 1170.95, subd. (c)), and to hold a hearing at which the prosecution bears 

the burden of proving his ineligibility for resentencing relief beyond a reasonable doubt, 

unless such hearing is waived (§ 1170.95, subd. (d)). The court erred in failing to follow 

these procedures. Neither party argues the error was harmless, and we cannot say it is 

reasonably probable the petition properly could have been denied without an evidentiary 

hearing on any other basis. (Lewis, supra, 11 Cal.5th at pp. 972‒974; see People v. 

Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we must reverse. 

III. The Standard of Review on Remand

The parties dispute the standard of review to be applied at the evidentiary hearing. 

(§ 1170.95, subd. (d)(3).) 

“At the hearing to determine whether the petitioner is entitled to relief, the burden 

of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the 
17.

petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) However, courts are 

split on what, precisely, this provision requires the prosecution to prove. To prove 

ineligibility beyond a reasonable doubt, must the prosecution merely prove that a rational 

jury could find the petitioner guilty of murder on a still-valid theory of liability? (See 

People v. Duke (2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021, S265309

[“This is essentially identical to the standard of substantial evidence, in which the 

reviewing court asks ‘ “whether, on the entire record, a rational trier of fact could find the 

defendant guilty beyond a reasonable doubt....” ’ ”].) Or does section 1170.95, 

subdivision (d)(3) require the trial court to serve as an independent factfinder, to whom 

the prosecution must prove beyond a reasonable doubt that the petitioner is guilty of 

murder on a still-valid theory? (See People v. Fortman (2021) 64 Cal.App.5th 217, 224‒

225, review granted July 21, 2021, S269228; People v. Lopez (2020) 56 Cal.App.5th 936, 

949, review granted Feb. 10, 2021, S265974; People v. Clements (2021) 60 Cal.App.5th 

597, 616‒618, review granted Apr. 28, 2021, S267624; People v. Rodriguez (2020) 

58 Cal.App.5th 227, 241‒244, review granted Mar. 10, 2021, S266652; accord, Duchine, 

supra, 60 Cal.App.5th at pp. 814‒815 [the “idea that the prosecution must prove beyond 

a reasonable doubt that there is substantial evidence in a prior record to support a 

hypothetical finding of guilt on a theory of murder that may never have been presented to 

a jury is beyond” incomprehensible].)

Our Supreme Court has granted review to resolve this split in Duke. (People v. 

Duke, supra, 55 Cal.App.5th at p. 123, review granted.) Additionally, the Legislature 

recently passed, and the Governor signed, a bill which “[r]eaffirms that the proper burden 

of proof at a resentencing hearing under [] section [1170.95] is proof beyond a reasonable 

doubt.” (Sen. Bill No. 775 (2021-2022 Reg. Sess.) Stats 2021, ch. 551, § 1, subd. (c).) 

Effective January 1, 2022, Senate Bill No. 775 amends section 1170.95, subdivision 

(d)(3) to require the prosecution “to prove, beyond a reasonable doubt, that the petitioner 
18.

is guilty of murder or attempted murder under California law as amended by the changes 

to section 188 or 189 made effective January 1, 2019.” (Stats. 2021, ch. 551, § 2.) 

Based on the foregoing, and consistent with the recent amendments to 

section 1170.95, subdivision (c), we join the “growing chorus” of courts that require an 

independent finding by the trial court, upon proof beyond a reasonable doubt, that the 

petitioner is guilty of murder on a still-valid theory. (People v. Fortman, supra,

64 Cal.App.5th at p. 221.) 

DISPOSITION

The June 3, 2020 order denying petitioner’s section 1170.95 petition is reversed. 

On remand, the trial court is directed to issue an order to show cause and to conduct 

further proceedings as required under section 1170.95, subdivision (d), in light of the 

principles set forth herein.