Filed 11/13/23 P. v. Paniagua CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ARIEL BAKER PANIAGUA 

et al.,

Defendants and Appellants.

 B324440

 (Los Angeles County

 Super. Ct. No. LA081995)

APPEALS from a judgment and order of the Superior Court

of Los Angeles County, Thomas Rubinson, Judge. Paniagua’s 

judgment is affirmed as modified. The order denying Martinez’s 

petition under section 1172.6 is reversed with directions. 

David Andreasen, under appointment by the Court of 

Appeal, for Defendant and Appellant Ariel Baker Paniagua.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant Hubaldo Martinez.
2

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Kenneth C. Byrne, Supervising 

Deputy Attorney General, and Allison H. Chung, Deputy 

Attorney General, for Plaintiff and Respondent.

__________________

INTRODUCTION

This is Ariel Baker Paniagua’s third appeal and Hubaldo 

Martinez’s second. Paniagua appeals from the judgment entered 

after the trial court resentenced him (a second time) following his 

second appeal (People v. Paniagua (Feb. 28, 2022, B313479) 

[nonpub. opn.] (Paniagua II)). Paniagua and Martinez were 

convicted of various crimes, some of which they committed 

together and some of which Paniagua committed on his own.

Paniagua argues that the trial court abused its discretion 

in declining to dismiss any enhancements under the 

2022 amendments to Penal Code section 1385 (Sen. Bill No. 81, 

Stats. 2021 (2021-2022 Reg. Sess.), ch. 721, § 1),1 which added

subdivision (c) to require the court to dismiss an enhancement 

under certain circumstances if it is in the interest of justice to do 

so. Paniagua also argues that the evidence at his trial does not 

support a true finding on the gang allegation under the 2022 

amendments to section 186.22 (Assem. Bill No. 333 (2021-2022 

Reg. Sess.)) and that, if he forfeited this argument, his appellate 

counsel provided ineffective assistance by failing to raise it in 

Paniagua II. We conclude that the trial court did not abuse its 

discretion in (re)sentencing Paniagua under section 1385, 

1 Statutory references are to the Penal Code.
3

subdivision (c), that Paniagua forfeited his argument the gang 

enhancements should be vacated under amended section 186.22, 

and that Paniagua has not demonstrated his appellate counsel 

provided ineffective assistance. Therefore, we modify Paniagua’s

sentence to strike an enhancement we reversed in a 

nonpublished opinion (People v. Paniagua (Nov. 4, 2019, 

B289253) [nonpub. opn.] (Paniagua I)), and affirm.

Martinez, who pleaded no contest to voluntary 

manslaughter, appeals from the superior court’s order denying 

his petition for resentencing under section 1170.95 (now 

section 1172.6). Martinez argues the court applied the wrong 

standard of proof at the evidentiary hearing. We reverse the 

order denying Martinez’s petition for resentencing and direct the 

court to hold a new evidentiary hearing and apply the proper 

standard of proof under section 1172.6, subdivision (d)(3).

FACTUAL AND PROCEDURAL BACKGROUND

A. Paniagua and Martinez Participate in a Shooting; 

One Week Later, Paniagua Commits Another 

Shooting

On October 6, 2015 Paniagua and Martinez, both members 

of the same criminal street gang, drove into the neighborhood of a

rival gang. Martinez stopped the car next to Victor Castillo; 

Paniagua got out of the car, asked Castillo if he was associated 

with the rival gang, and showed Castillo a handgun in his 

waistband and a gang tattoo across his chest. Castillo said he did 

not belong to any gang, and Paniagua got back into the car. 

Martinez drove to a marijuana dispensary and pulled his car 

behind another car with occupants Paniagua believed belonged to

the rival gang. Paniagua got out of the car, shouted “Fuck 
4

Canoga” (the name of the rival gang), and fired several shots into 

the car. One bullet hit one of the occupants of the car; another 

hit and killed the driver of a car parked down the street. After 

the shooting, Martinez drove off with Paniagua. 

One week later, Paniagua fired shots into another car. The

bullets did not hit anyone, and the car sped off after the shooting. 

Martinez did not participate in this shooting. (Paniagua I, supra, 

B289253.)

B. The People Charge Martinez and Paniagua with 

Various Crimes; Martinez Pleads No Contest, and a 

Jury Convicts Paniagua; Both Are Sentenced

The People charged Paniagua and Martinez with, among 

other crimes, one count of murder (§ 187, subd. (a)) and 

three counts of attempted willful, deliberate, and premeditated 

attempted murder (§§ 187, subd. (a), 664, subd. (a)). The People 

also charged Paniagua with offenses related to the second 

shooting in which Martinez did not participate.

Martinez pleaded no contest to voluntary manslaughter 

(§ 192, subd. (a)) and admitted he had a prior felony conviction 

that was a serious or violent felony within the meaning of the 

three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) 

and a serious felony within the meaning of section 667, 

subdivision (a)(1). The trial court sentenced Martinez to 27 years 

in prison. 

A jury found Paniagua guilty on all counts (though 

convicted him of second, not first, degree murder) and found true 

most of the gang and all of the firearm allegations. The trial 

court sentenced Paniagua to an aggregate prison sentence of 

effectively 268 years four months to life as follows: On count 1, 
5

second degree murder, the court imposed a sentence of 30 years 

to life (15 years to life, doubled under the three strikes law), plus 

25 years to life for the firearm enhancement under section 

12022.53, subdivision (d). The court also imposed and stayed 

execution of 10- and 20-year terms, respectively, for the firearm 

enhancements under section 12022.53, subdivisions (b) and (c). 

For the true finding on the gang allegation, the court imposed a 

term of life with a minimum parole eligibility of 30 years under 

section 186.22, subdivision (b)(5) (a minimum parole eligibility of 

15 years, doubled under the three strikes law). 

On each of counts 2 through 4, attempted willful, 

deliberate, and premeditated murder, the court imposed a prison 

term of life with a minimum parole eligibility of 30 years under 

section 186.22, subdivision (b)(5) (a minimum parole eligibility of 

15 years, doubled under the three strikes law), plus 25 years to 

life for the firearm enhancement under section 12022.53, 

subdivision (d). The court also imposed and stayed execution of 

10- and 20-year terms, respectively, for the firearm 

enhancements under section 12022.53, subdivisions (b) and (c). 

On count 5, shooting at an occupied motor vehicle on 

October 6, 2015 (§ 246), the court imposed and stayed execution 

of a prison term of three years four months,2 plus 25 years to life 

under section 12022.53, subdivision (d), plus 15 years to life

under section 186.22, subdivision (b)(4). On count 7, shooting at 

an occupied vehicle on October 13, 2015 (§ 246), the court 

imposed a term of three years four months, plus 20 years under 

section 12022.53, subdivision (c), plus 15 years to life under 

2 We ultimately corrected this sentencing error in 

Paniagua II. (See People v. Relkin (2016) 6 Cal.App.5th 1188, 

1197-1198.)
6

section 186.22, subdivision (b)(4),3 and imposed and stayed a 

term of 10 years each under sections 12022.53, subdivision (b), 

and 12022.5, subdivision (a). On count 9, possession of a firearm 

by a felon (§ 29800, subd. (a)(1)), the court imposed and stayed 

execution of a prison term of one year four months, plus a term of 

three years under section 186.22, subdivision (b)(1),4 plus one 

year under section 667.5, subdivision (b). On each of counts 1 

through 4 and 7, the court imposed an additional term of five

years under section 667, subdivision (a)(1).

C. Paniagua Successfully Appeals Twice, and the Trial 

Court Resentences Him Twice

In Paniagua’s first appeal, we affirmed the judgment in 

most respects and directed the trial court to correct several 

sentencing and other errors, to exercise its discretion whether to 

strike the five-year enhancements under section 667, 

subdivision (a)(1), and to consider the effect, if any, of Senate Bill 

No. 136 (2019-2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1), which 

limits the applicability of the one-year sentence enhancement for 

prior prison terms under section 667.5, subdivision (b), to 

defendants who have served a prison term for certain sexually 

violent offenses. (Paniagua I, supra, B289253.) On remand the 

trial court corrected the errors we identified in Paniagua I, 

declined to exercise its discretion to strike the five-year 

3 In Paniagua I we held the trial court erred in imposing the 

gang penalty on count 7 because the jury found the gang 

allegation not true. (Paniagua I, supra, B289253.)

4 We reversed the jury’s true finding on the gang allegation 

related to count 9 because the trial court erred in failing to give a

unanimity instruction. (Paniagua I, supra, B289253.)
7

enhancements under section 667, subdivision (a)(1), and struck 

the one-year prior prison term enhancement under section 667.5, 

subdivision (b).

In his second appeal, Paniagua contended, and the People 

conceded, the trial court committed two additional sentencing 

errors on his conviction for shooting at an occupied motor vehicle

(count 7). We modified the judgment to strike the firearm 

enhancements on count 7 and affirmed the judgment as modified. 

(People v. Paniagua (Jan. 12, 2022, B313479) [nonpub. opn.].)

Paniagua filed a petition for rehearing in Paniagua II, 

arguing that several new sentencing laws that went into effect on 

January 1, 2022 applied to him: (1) Senate Bill No. 567 (2021-

2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3), which (among other 

things) amended section 1170 to limit the trial court’s discretion 

to impose the upper term of imprisonment and to require the 

court in certain circumstances to impose the lower term; 

(2) Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, 

ch. 441, § 1), which amended section 654 to no longer require the 

trial court to impose a sentence based on the longest possible 

term where an act or omission is punishable in different ways by 

different provisions of the law; and (3) Senate Bill No. 81 (2021-

2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1), which as stated 

amended section 1385 to add subdivision (c), to require the court 

to dismiss enhancements under certain circumstances. We 

granted the petition and concluded the new laws applied to 

Paniagua. We directed the trial court on count 7 to strike the 

enhancements under sections 12022.53, subdivisions (b) and (c), 
8

and 12022.5, subdivision (a),

5 and to resentence Paniagua in 

accordance with the three new laws. In holding the ameliorative 

legislation applied retroactively, we stated that the new laws 

constituted “‘“changed circumstances”’” and that the trial court 

should conduct a “‘“full resentencing as to all counts.”’”

(Paniagua II, supra, B313479.) On remand the trial court 

resentenced Paniagua to an aggregate prison sentence of

effectively 248 years four months to life. Paniagua timely 

appealed. 

D. Martinez Files a Petition for Resentencing Under 

Section 1172.6

In 2022 Martinez filed a petition for resentencing under 

section 1172.6.6 Martinez asserted that, because of the 

Legislature’s changes to the definitions of murder under sections 

188 and 189, he could not currently be convicted of murder or 

attempted murder. The superior court found Martinez 

established a prima facie case for relief, issued an order to show 

5 Once the trial court vacated the gang finding and 

life sentence on count 7 (on remand after Paniagua I), the 

enhancements under section 12022.53, subdivisions (b) and (c),

no longer applied to Paniagua. (See § 12022.53, subd. (a).) The 

enhancement under section 12022.5, subdivision (a), did not 

apply to Paniagua because, as we held in Paniagua II, the 

enhancement does not apply where, as here, use of a firearm is 

an element of the underlying offense (§ 246). (Paniagua II, 

supra, B313479.)

6 Martinez had previously filed a request for resentencing 

under section 1170, subdivision (d)(1). The trial court denied the

request, and we dismissed Martinez’s appeal from that order. 

(People v. Martinez (Mar. 9, 2021, B306553) [nonpub. opn.].)
9

cause, and held an evidentiary hearing. After the evidentiary 

hearing, the court ruled Martinez was not entitled to relief and 

denied the petition. Martinez timely appealed. 

DISCUSSION

A. The Trial Court Did Not Abuse Its Discretion in 

Declining To Strike Any Enhancements Under 

Section 1385, Subdivision (c)

1. Relevant Proceedings

On August 17, 2022 the trial court conducted a(nother)

resentencing hearing. The court cited the remittitur in 

Paniagua II and stated: “This will be a full resentencing of 

Defendant Paniagua.” Referring to amended sections 654 and 

1385, counsel for Paniagua argued that, because Paniagua was 

under the age of 26 when he committed the crimes and “suffered 

trauma in his background,” the court should stay execution of the 

sentence on the count that carried the longest prison term and 

impose the sentence on a count that carried less prison time, 

strike the gang allegations, strike the prior conviction allegation, 

and impose concurrent sentences. The prosecutor submitted on 

the People’s original sentencing memorandum from 2018, which 

listed Paniagua’s prior convictions and identified six 

circumstances in aggravation under California Rules of Court, 

rule 4.421(a) and (b). The People also reported that, while 

Paniagua and Castillo were both in custody before the trial, 

Paniagua threatened and attacked Castillo. 

The court found: Paniagua, a member of a criminal street

gang, committed two shootings one week apart. In the first
10

shooting, the trial court stated, Paniagua “brazenly opened fire” 

on three people he thought were members of a rival gang, and

one of the stray bullets hit a “completely innocent man inside his 

truck, killing him.” In the second shooting, Paniagua fired shots 

into a car in rival gang territory, but “thankfully, on this 

occasion, no lives were lost.” The court also discussed Paniagua’s 

criminal history and found, under California Rules of Court, rule 

4.421, four circumstances in aggravation that related to the 

crimes and three circumstances in aggravation that related to 

Paniagua.

The court acknowledged that, under amended section 654, 

it had discretion to stay execution of the sentence on the more 

serious counts, but declined to exercise that discretion because, in 

the court’s view, it would not be in the interest of justice.

Turning to amended section 1170, the court recognized that it

had discretion to impose the lower term on the determinate 

sentences (counts 5, 7, and 9) and found that under section 1170, 

subdivision (b)(6), Paniagua’s youth was a mitigating factor. The 

court concluded, however, that the aggravating factors 

outweighed that mitigating factor and that “selecting the lower

term would not be in the interest of justice.” 

Finally, the court stated that the new provision in 

section 1385, subdivision (c), gave it discretion to dismiss 

enhancements, which the court said were the firearm and (on 

some counts) the gang enhancements. The court reviewed the 

mitigating circumstances enumerated in section 1385, 

subdivision (c)(2), and found circumstances (B) and (C) applied to 

all counts, circumstance (F) applied to counts 7 and 9, and 
11

circumstance (E) might apply.

7 The trial court gave the 

mitigating circumstances “great weight,” but concluded that

dismissing the enhancements would “endanger public safety”

because of “the resultant shorter sentence” for Paniagua and that

therefore “it would not be in the interest of justice to dismiss the 

enhancements.” However, on count 7, one of the convictions for 

shooting at an occupied vehicle, the trial court struck (following 

our direction in Paniagua II) the firearm enhancements under 

section 12022.53, subdivisions (b) and (c), and section 12022.5, 

subdivision (a). 

The court resentenced Paniagua as follows: On count 1, the 

court imposed a prison term of 15 years to life, doubled under the 

three strikes law, plus 25 years to life under section 12022.53, 

subdivision (d). The court also imposed and stayed execution of 

10- and 20-year terms, respectively, for the enhancements under 

section 12022.53, subdivisions (b) and (c), and imposed a 

minimum parole eligibility of 30 years under section 186.22, 

subdivision (b)(5). On each of counts 2 through 4, the court 

sentenced Paniagua to life in prison, with a minimum parole 

7 Section 1385, subdivision (c)(2), lists the mitigating 

circumstances: “(B) Multiple enhancements are alleged in a 

single case. In this instance, all enhancements beyond a single 

enhancement shall be dismissed. [¶] (C) The application of an 

enhancement could result in a sentence of over 20 years. In this 

instance, the enhancement shall be dismissed. [¶] . . . [¶]

(E) The current offense is connected to prior victimization or 

childhood trauma. [¶] (F) The current offense is not a violent 

felony as defined in subdivision (c) of Section 667.5.” With 

respect to mitigating circumstance (E), the court found there was 

no evidence of a connection between any trauma and the current 

offenses.
12

eligibility of 30 years, plus 25 years to life under section 

12022.53, subdivision (d). The court again imposed and stayed 

execution of 10- and 20-year terms, respectively, for the findings 

under section 12022.53, subdivisions (b) and (c). In addition, on 

each of counts 1 through 4, the court imposed a term of five years 

under section 667, subdivision (a). 

On count 5, the court imposed and stayed execution of a 

term of five years, doubled to 10 years under the three strikes 

law, plus 25 years to life under section 12022.53, subdivision (d),

and 15 years to life under section 186.22, subdivision (b)(4). The 

court also imposed and stayed execution of 10- and 20-year terms, 

respectively, under section 12022.53, subdivisions (b) and (c). 

On count 7, the court imposed a term of three years 

four months, plus five years under section 667, subdivision (a). 

On count 9, the court imposed and stayed execution of a term of 

four years, plus three years for the gang enhancement.

8

8 The trial court erred in imposing the gang enhancement 

under section 186.22, subdivision (b)(1), on count 9 because in 

Paniagua I we reversed the true finding on the gang allegation. 

We will modify the judgment to correct this error. (See People v. 

Harbison (2014) 230 Cal.App.4th 975, 986 [“‘When sentencing 

error does not require additional evidence, further fact finding, or 

further exercise of discretion, the appellate court may modify the 

judgment appropriately and affirm it as modified.’”].)
13

2. Applicable Law and Standard of Review

Section 1385, subdivision (c), provides: “Notwithstanding 

any other law, the court shall dismiss an enhancement if it is in 

the furtherance of justice to do so.” Section 1385, subdivision (c),

“further provides that ‘[i]n exercising its discretion under this 

subdivision,’ the trial court ‘shall consider and afford great 

weight’ to certain ‘mitigating circumstances,’ if proven by the 

defendant. [Citation.] ‘Proof of the presence of one or more of 

these circumstances weighs greatly in favor of dismissing the 

enhancement, unless the court finds that dismissal of the 

enhancement would endanger public safety.’” (People v. Mendoza

(2023) 88 Cal.App.5th 287, 290 (Mendoza); see People v. Lipscomb

(2022) 87 Cal.App.5th 9, 16-17; People v. Sek (2022) 

74 Cal.App.5th 657, 674 (Sek).)9 “‘“Endanger public safety”

means there is a likelihood that the dismissal of the 

enhancement would result in physical injury or other serious 

danger to others.’” (Mendoza, at p. 295; see § 1385, subd. (c)(2);

People v. Ortiz (2023) 87 Cal.App.5th 1087, 1094, review granted 

Apr. 12, 2023, S278894.)

“[A]buse of discretion is the proper standard of review for 

the trial court’s determination that dismissal of [a defendant’s]

firearm enhancement would endanger public safety” under 

section 1385, subdivision (c). (Mendoza, supra, 88 Cal.App.5th at 

p. 298; see People v. Walker (2022) 86 Cal.App.5th 386, 395, 

9 “The mitigating circumstances originally were listed under 

subdivision (c)(3) of section 1385. [Citation.] Effective June 30, 

2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended the 

statute to list them under section 1385(c)(2).” (People v. 

Mendoza, supra, 88 Cal.App.5th at p. 291, fn. 1; see Stats. 2022, 

ch. 58, § 15; Stats. 2021, ch. 721, § 1.)
14

review granted Mar. 22, 2023, S278309; see also People v. 

Carmony (2004) 33 Cal.4th 367, 375 (Carmony) [“a trial court’s 

refusal or failure to dismiss or strike a prior conviction allegation 

under section 1385[, subdivision (a),] is subject to review for 

abuse of discretion”].) “The abuse of discretion standard is highly 

deferential. When, ‘“as here, a discretionary power is statutorily 

vested in the trial court, its exercise of that discretion ‘must not 

be disturbed on appeal except on a showing that the court 

exercised its discretion in an arbitrary, capricious or patently 

absurd manner that resulted in a manifest miscarriage of 

justice.’”’” (Mendoza, at p. 298; see Carmony, at p. 377 [“a trial 

court does not abuse its discretion unless its decision is so 

irrational or arbitrary that no reasonable person could agree 

with it”]; Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490 

[same].)

3. The Court Did Not Abuse Its Discretion in 

Declining To Dismiss the Enhancements Under

Section 1385, Subdivision (c)

Paniagua argues the trial court abused its discretion 

because it “refused to dismiss even a single enhancement on the

ground that doing so would endanger public safety.” Paniagua, 

however, did not make this argument in the trial court. He did 

not dispute that striking the enhancements would result in 

physical danger or injury to others, nor did he challenge the trial 

court’s finding at the August 17, 2022 resentencing hearing that 

it would. Therefore, he forfeited the argument. (See People v. 

Scott (1994) 9 Cal.4th 331, 353 [a party in a criminal case may 

not, on appeal, raise “claims involving the trial court’s failure to 

properly make or articulate its discretionary sentencing choices”
15

if the party did not object to the sentence at trial]; People v. 

Anderson (2023) 88 Cal.App.5th 233, 242 [defendant forfeited his 

challenge to the trial court’s decision to impose the upper term 

because he failed to object when the court imposed it], review 

granted Apr. 19, 2023, S278786].)

In any event, the trial court did not abuse its discretion. 

The court reviewed the evidence and found two mitigating 

circumstances applied (the People alleged multiple 

enhancements; applying the enhancements would result in a 

sentence of over 20 years) to all the counts and a third mitigating 

circumstance (the current offense was not a violent felony, as 

defined in section 667.5, subdivision (c)) applied to counts 7

and 9. However, the court also considered the circumstances of 

the crime, which included that Paniagua “brazenly” fired a gun 

on a public street resulting in the death of an innocent man; that 

Paniagua committed two shootings one week apart; and 

Paniagua’s increasing criminality. The court concluded it was a 

“virtual certainty” a shorter sentence would endanger the public.

This was not an irrational or arbitrary conclusion, particularly 

given Paniagua expressed no remorse at the original sentencing 

hearing and intimidated a witness before trial. (See Mendoza, 

supra, 88 Cal.App.5th at p. 299 [trial court did not abuse its 

discretion in declining to dismiss an enhancement, where the 

court considered the circumstances of the crime and concluded “a 

long sentence was necessary for [the defendant] to become 

rehabilitated after committing such a crime”].)

Paniagua argues that, given the length of his sentence 

(effectively 248 years four months), the court’s finding “that 

dismissing any enhancements would endanger public safety . . . 

could not possibly be correct.” Paniagua does not dispute the 
16

court’s finding he poses a public safety risk if released; instead, 

he essentially argues it doesn’t matter how dangerous he is 

because, given his two-and-a-half century prison sentence, he 

may never be released. According to Paniagua, even if the court 

dismissed “150 years’ worth of enhancements,” he “would still be 

serving” life without the possibility of parole. 

That is not the law. Paniagua cites no authority for the 

proposition the length of a defendant’s prison sentence is a factor 

in determining under section 1385, subdivision (c), whether 

dismissing the enhancement would endanger public safety. 

Under his theory, a defendant is entitled to dismissal of all 

enhancements, regardless of the defendant’s dangerousness, as 

long as the resulting sentence exceeds the defendant’s life 

expectancy. Moreover, as Paniagua’s three (so far) appeals 

demonstrate, his sentence has not remained static—the trial 

court made some sentencing errors that, when corrected, resulted 

in a shorter aggregate sentence, and the Legislature enacted (and 

continues to enact) ameliorative legislation. The trial court 

reasonably concluded decreasing Paniagua’s sentence by any 

amount would contribute to the risk of serious danger to others.

(Cf. People v. Gonzalez (2008) 43 Cal.4th 1118, 1129 [“staying 

rather than striking the prohibited firearm enhancements serves 

the legislative goals of section 12022.53 by making the prohibited 

enhancements readily available should the section 12022.53 

enhancement with the longest term be found invalid on appeal”].)

Paniagua has not shown the trial court was unaware of its 

discretion to dismiss an enhancement, considered an 

impermissible factor, or failed to consider a required factor. (See

Mendoza, supra, 88 Cal.App.5th at p. 299 [section 1385, 

subdivision (c), “does not require the trial court to consider any 
17

particular factors in determining whether ‘there is a likelihood 

that the dismissal of the enhancement would result in physical 

injury or other serious danger to others’”]; see also Carmony, 

supra, 33 Cal.4th at p. 378 [“an abuse of discretion occurs where 

the trial court was not ‘aware of its discretion’ to dismiss 

[citation], or where the court considered impermissible factors in 

declining to dismiss”]; People v. Avila (2020) 57 Cal.App.5th 1134, 

1141 [“an abuse of discretion may be found where a trial court 

considers impermissible factors, and, conversely, does not 

consider relevant ones”].)

Paniagua also contends that the court’s refusal to dismiss 

any enhancements “was inconsistent with the spirit and letter” of 

section 1385, subdivision (c). By failing to support this 

contention with any argument or citation to authority, however, 

Paniagua forfeited it too. (See People v. Ramirez (2022) 

13 Cal.5th 997, 1124, fn. 39; People v. Stanley (1995) 10 Cal.4th 

764, 793.) In any event, the text of section 1385, subdivision (c),

preserves the court’s discretion to dismiss an enhancement if 

doing so would endanger public safety, which the court found 

applied to Paniagua. (See People v. Anderson, supra,

88 Cal.App.5th at p. 239 [section 1385, subdivision (c), “explicitly 

and unambiguously establishes: the trial court has discretion to 

dismiss sentencing enhancements; certain circumstances weigh 

greatly in favor of dismissal; and a finding of danger to public 

safety can overcome the circumstances in favor of dismissal”],

review granted; People v. Walker, supra, 86 Cal.App.5th at p. 395 

[“Section 1385 makes clear that whether dismissal of an 

enhancement is ‘in the furtherance of justice’ is a ‘discretion[ary]’

call for the trial court to make.”], review granted.)
18

4. Section 1385, Subdivision (c)(3), Does Not 

Apply to Alternate Sentencing Provisions

At the August 17, 2022 resentencing hearing, the trial 

court considered whether it should exercise its discretion to strike 

the firearm and gang enhancements; the court did not mention or 

apparently consider the effect on Paniagua’s sentence of his prior 

serious or violent felony conviction under the three strikes law. 

Paniagua asks us now to direct the trial court to apply section 

1385, subdivision (c), to alternative penalty schemes, like the 

three strikes law, and to exercise its discretion whether to 

“dismiss those penalty provisions.” Section 1385, subdivision (c), 

however, does not apply to alternate penalty provisions like the 

three strikes law.

“‘“[I]n construing a statute, a court [must] ascertain the 

intent of the Legislature so as to effectuate the purpose of the 

law.” [Citation.] In determining that intent, we first examine 

the words of the respective statutes: “If there is no ambiguity in 

the language of the statute, ‘then the Legislature is presumed to 

have meant what it said, and the plain meaning of the language 

governs.’ [Citation.] ‘Where the statute is clear, courts will not 

“interpret away clear language in favor of an ambiguity that does 

not exist.”’”’” (People v. Burke (2023) 89 Cal.App.5th 237, 242

(Burke); see People v. Lipscomb, supra, 87 Cal.App.5th at p. 17.)

“The plain language of subdivision (c) of section 1385 

applies only to an ‘enhancement,’ and the Three Strikes law is 

not an enhancement. We therefore conclude that section 1385,

subdivision (c)’s provisions regarding enhancements do not apply 

to the Three Strikes law.” (Burke, supra, 89 Cal.App.5th at 

p. 244; see People v. Tilley (2023) 92 Cal.App.5th 772, 776, fn. 2 

(Tilley) [because a “prior strike conviction is not an enhancement 
19

but part of an alternative sentencing scheme,” section 1385, 

subdivision (c), “does not apply to prior strike convictions”].) We 

agree with Burke and Tilley: The statutory language of 

section 1385, subdivision (c), is clear and unambiguous. Section 

1385, subdivision (c), refers to an enhancement, which “has a 

well-established technical meaning in California law” and does 

not include an alternate sentencing scheme like the three strikes 

law. (Burke, at p. 243 & fn. 3; see People v. Superior Court

(Romero) (1996) 13 Cal.4th 497, 527 [“The Three Strikes law

. . . articulates an alternative sentencing scheme for the current 

offense rather than an enhancement.”]; People v. Frutoz (2017) 

8 Cal.App.5th 171, 174, fn. 3 [same]; see also Association of 

Deputy District Attorneys for Los Angeles County v. Gascon (2022) 

79 Cal.App.5th 503, 542 [“the Legislature (and the voters) 

enacted the three strikes law to create an alternative sentencing 

scheme when the defendant has qualifying prior felony 

convictions”], review granted Aug. 31, 2022, S275478.) 

Citing Arden Carmichael, Inc. v. County of Sacramento

(2000) 79 Cal.App.4th 1070, Paniagua argues section 1385, 

subdivision (c), contains a “‘latent ambiguity’” that “courts must 

resolve to read the law consistent with the Legislature’s true 

intention.” Although the court in Arden Carmichael concluded 

there was no latent ambiguity in a constitutional provision 

adopted by voter initiative, the court described a “latent 

ambiguity” as one that may exist “‘“where the language employed 

is clear and intelligible and suggests but a single meaning, but 

some extrinsic evidence creates a necessity for interpretation or a 

choice among two or more possible meanings.”’” (Arden 

Carmichael, at p. 1075.) The court in that case cautioned, 

however, that “the will of the people as expressed in the plain 
20

meaning of the constitutional provision is paramount,” that the 

court’s duty was “not to twist words to substitute [its] own

judgment for that of the voters” but “to determine and apply the 

intent of the people,” and that with “extremely rare exceptions 

. . . that intent will be found in the plain meaning of the 

constitutional provision.” (Id. at p. 1076.) As more recent case 

authority makes clear, “although extrinsic evidence may reveal a 

latent ambiguity in a statute, such ambiguity must reside in the 

statutory language itself. It cannot exist in the abstract, or by 

ignoring the statutory language.” (Siskiyou County Farm Bureau 

v. Department of Fish & Wildlife (2015) 237 Cal.App.4th 411, 

420.) As discussed, the statutory language of section 1385, 

subdivision (c), does not reflect any ambiguity.

B. Paniagua Forfeited His Request To Apply Assembly 

Bill No. 333 to His Sentence and Has Not

Demonstrated Ineffective Assistance of Appellate 

Counsel

1. Applicable Law

“Assembly Bill 333 made the following changes to the law 

on gang enhancements: First, it narrowed the definition of a 

‘criminal street gang’ to require that any gang be an ‘ongoing,

organized association or group of three or more persons.’

[Citation.] Second, whereas section 186.22, former subdivision (f) 

required only that a gang’s members ‘individually or collectively 

engage in’ a pattern of criminal activity in order to constitute a 

‘criminal street gang,’ Assembly Bill 333 requires that any such 

pattern have been ‘collectively engage[d] in’ by members of the 

gang. [Citation.] Third, Assembly Bill 333 also narrowed the 
21

definition of a ‘pattern of criminal activity’ by requiring that 

(1) the last offense used to show a pattern of criminal gang 

activity occurred within three years of the date that the currently 

charged offense is alleged to have been committed; (2) the 

offenses were committed by two or more gang ‘members,’ as 

opposed to just ‘persons’; (3) the offenses commonly benefitted a 

criminal street gang; and (4) the offenses establishing a pattern 

of gang activity must be ones other than the currently charged 

offense. [Citation.] Fourth, Assembly Bill 333 narrowed what it 

means for an offense to have commonly benefitted a street gang, 

requiring that any ‘common benefit’ be ‘more than reputational.’” 

(People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran); see Sek, 

supra, 74 Cal.App.5th at p. 665.) Paniagua contends, the People 

concede, and we agree these ameliorative changes in the law are

retroactive. (See Tran, supra, 13 Cal.5th at pp. 1206-1207; 

People v. Salgado (2022) 82 Cal.App.5th 376, 380; Sek, at 

p. 667.)10 

2. Paniagua Forfeited His Argument Based on 

Assembly Bill No. 333

Paniagua argues the “true findings on the gang allegations 

must be vacated based on changes to the law made by [Assembly

10 Assembly Bill No. 333 also added section 1109, “which 

requires, if requested by the defendant, a gang enhancement 

charge to be tried separately from all other counts that do not 

otherwise require gang evidence as an element of the crime.” 

(Tran, supra, 13 Cal.5th at p. 1206.) Whether section 1109 

applies retroactively “is the subject of a split of authority among 

the Courts of Appeal,” which the Supreme Court has declined to 
22

Bill No.] 333.” Paniagua, however, did not argue at the

August 17, 2022 resentencing hearing the changes in the law 

governing gang enhancements in Assembly Bill No. 333, which 

became effective January 1, 2022, applied to him, nor did he ask 

the court to dismiss the gang enhancements under Assembly Bill 

No. 333. Therefore, he has forfeited the argument. (See People v. 

Scott, supra, 9 Cal.4th at p. 351 [“In order to encourage prompt 

detection and correction of error, and to reduce the number of 

unnecessary appellate claims, reviewing courts have required

parties to raise certain issues at the time of sentencing. In such 

cases, lack of a timely and meaningful objection forfeits or waives 

the claim.”]; People v. Anderson, supra, 88 Cal.App.5th at p. 242 

[defendant forfeited his argument the trial court relied on 

improper factors in imposing the upper term], review granted; 

People v. Sperling (2017) 12 Cal.App.5th 1094, 1100 [“Appellant 

forfeited his sentencing claims because he did not object at the 

time of sentencing.”].)

Paniagua argues he did not forfeit his argument because,

“when Paniagua II was decided, the law was unsettled as to 

whether someone like him, whose convictions had been upheld on 

initial review and who was only appealing from his resentencing, 

could take advantage of changes to the definition of an 

enhancement the jury found true at his trial.” Even assuming 

Paniagua’s characterization of the law in February 2022 (when 

we filed our modified opinion in Paniagua II after granting 

Paniagua’s petition for rehearing) is correct, by the time the 

resentencing hearing occurred on August 17, 2022, the Supreme 

resolve. (Tran, at p. 1208.) Paniagua states he “is not asserting 

he was prejudiced by the lack of a bifurcated trial.” 
23

Court had decided People v. Padilla (2022) 13 Cal.5th 152

(Padilla) (almost three months before the sentencing hearing), 

which, as Paniagua points out, held an ameliorative voter 

initiative (Proposition 57) applied to the defendant at his third 

resentencing hearing.11 (Padilla, at pp. 158-159; see Sek, supra, 

74 Cal.App.5th at pp. 665-667 [Assembly Bill No. 333, enacted

while the defendant’s appeal from his resentencing was pending, 

applied retroactively.].) Paniagua’s failure to argue at his 

resentencing hearing that Assembly Bill No. 333 applied to him

precludes him from raising the argument in this appeal. (People 

v. Scott, supra, 9 Cal.4th at p. 351; People v. Sperling, supra, 

12 Cal.App.5th at p. 1100.)

In his reply brief, Paniagua asserts it was “not clear” his 

trial counsel could have challenged the gang findings because 

this court’s disposition in Paniagua II “was limited to 

resentencing based on certain new laws specified in the order and 

did not encompass a challenge to the sufficiency of the evidence 

for the gang enhancements.” Our disposition, however, did not 

preclude Paniagua from asking for relief under Assembly Bill 

No. 333. In Paniagua II we agreed with Paniagua the 2022 

amendments to sections 654, 1170, and 1385 applied to him and, 

citing People v. Buycks (2018) 5 Cal.5th 857, 893, concluded the 

“changed circumstances” made a “full resentencing as to all 

counts . . . appropriate.” (Paniagua II, supra, B313479, internal 

quotation marks omitted.) In the disposition, among other things 

we vacated Paniagua’s sentence, which authorized the trial court 

11 Proposition 57 provides that a minor may be tried and 

sentenced in criminal courts only after a juvenile court judge 

conducts a transfer hearing. (Padilla, supra, 13 Cal.5th at 

p. 159.)
24

to conduct a full resentencing (see Buycks, at p. 893 [“when part 

of a sentence is stricken on review, on remand for resentencing ‘a 

full resentencing as to all counts is appropriate’”]; People v. Butler

(2023) 89 Cal.App.5th 953, 962 [because the court vacated the 

defendant’s sentences on one of the counts, he was “entitled to a 

full resentencing”], review granted May 31, 2023, S279633), 

which is what the trial court stated it was doing. The full 

resentencing rule allowed the trial court to revisit the gang

findings and hear Paniagua’s argument about Assembly Bill 

No. 333. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 

[“the full resentencing rule allows a court to revisit all prior 

sentencing decisions when resentencing a defendant”].)

Nor is there merit to the argument in Paniagua’s reply 

brief that People v. Lopez (2023) 93 Cal.App.5th 1110 cast doubt 

on “whether the trial court had the authority to grant relief” in 

this case. In Lopez the court held that, while the defendant on 

resentencing “was fully entitled to the ameliorative benefits of 

Assembly Bill 333,” the trial court on remand “had no jurisdiction 

to readjudicate the gang enhancements.” (Id. at pp. 1119, 1120.)

Lopez, however, was not decided until July 2023, almost a year 

after the resentencing hearing in this case.

Paniagua also contends that “the use of pre-[Assembly Bill 

No.] 333 instructions provides a separate basis for reversal.” 

This contention is essentially a different way of saying the trial 

court should have required the People to retry the gang 

allegation under the amended version of section 186.22. As 

discussed, however, Paniagua did not argue at his resentencing 

hearing Assembly Bill No. 333 applied to him, thus forfeiting the 

issue. Tran, supra, 13 Cal.5th 1169 and People v. Delgado (2022) 

74 Cal.App.5th 1067, cases Paniagua cites to support his 
25

contention, were in a different procedural posture than this case. 

The Legislature enacted Assembly Bill No. 333 while the appeals 

in those cases were pending, and the defendants argued the new 

legislation applied to them. That is not what happened here. 

The Legislature enacted the ameliorative legislation while 

Paniagua II was pending, and Paniagua had an opportunity to 

challenge the gang findings at that time or at any time up to and 

including his resentencing hearing in August 2022.

3. Paniagua Has Not Demonstrated His Appellate 

Counsel (in Paniagua II) Was Ineffective 

Paniagua argues that, if he forfeited his argument under 

Assembly Bill No. 333, his appellate counsel in Paniagua II was 

ineffective for not raising the issue (along with Senate Bill 

No. 567, Assembly Bill No. 518, and Senate Bill No. 810) in the 

petition for rehearing. Paniagua, however, has not demonstrated

his appellate counsel’s performance prejudiced him. 

“To demonstrate ineffective assistance of counsel, 

[the defendant] ‘must show that counsel’s performance was 

deficient, and that the deficiency prejudiced the defense.’” 

(People v. Johnsen (2021) 10 Cal.5th 1116, 1165; see Tilley, supra, 

92 Cal.App.5th at p. 778; People v. Fredrickson (2023) 

90 Cal.App.5th 984, 994-995.) “When examining an ineffective 

assistance claim, a reviewing court defers to counsel’s reasonable 

tactical decisions, and there is a presumption counsel acted 

within the wide range of reasonable professional assistance. It is 

particularly difficult to prevail on an appellate claim of ineffective 

assistance.” (People v. Mai (2013) 57 Cal.4th 986, 1009; accord,

People v. Brand (2021) 59 Cal.App.5th 861, 872.) To show 

prejudice, the defendant must demonstrate a “‘reasonable 
26

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.’” (People v. 

Centeno (2014) 60 Cal.4th 659, 676; see Tilley, at p. 778.) “‘If it is 

easier to dispose of an ineffectiveness claim on the ground of lack 

of sufficient prejudice . . . that course should be followed.’”

(Tilley, at p. 778; see Strickland v. Washington (1984) 466 U.S. 

668, 697.) 

Paniagua did not address the issue of prejudice in his 

opening brief. Therefore, he forfeited the argument his appellate 

counsel was ineffective. (See People v. Clark (2016) 63 Cal.4th 

522, 552; People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 

335, 408.)

In his reply brief Paniagua seems to make the (forfeited) 

suggestion that the failure by his appellate counsel in 

Paniagua II to request relief under Assembly Bill No. 333 

precluded his trial counsel from raising the issue at the (second) 

resentencing hearing in August 2022. It did not. As discussed, 

our opinion in Paniagua II authorized the trial court to conduct a 

full resentencing, which included revisiting the enhancements 

and penalties based on the gang findings. Appellate counsel’s 

failure to discuss Assembly Bill No. 333 did not preclude trial 

counsel on remand from challenging the gang findings under the 

new law at the resentencing hearing. Thus, Paniagua has not
27

demonstrated “a reasonable probability of a different result but 

for counsel’s errors.” (Tilley, supra, 92 Cal.App.5th at p. 778.)

12

C. The Order Denying Martinez’s Petition for 

Resentencing Must Be Reversed Because the Superior 

Court Did Not Apply the Correct Standard of Proof 

Martinez contends that, at the evidentiary hearing on his 

petition for resentencing under section 1172.6, the superior court 

“applied an incorrect standard of proof” and failed to act as an 

independent fact finder. The record supports both contentions. 

Therefore, we reverse the superior court’s order denying his 

petition and direct the court to conduct a new evidentiary hearing 

under the proper standard.

1. Relevant Proceedings

After Martinez filed his petition under section 1172.6, the 

superior court issued an order to show cause and set the matter 

for an evidentiary hearing. The prosecutor filed a response that 

summarized the evidence presented at the preliminary hearing

and that argued, in light of Martinez’s role as a driver and 

facilitator of the shooting, he still could be convicted as a direct 

aider and abettor under current law. At the hearing, counsel for 

12 Paniagua does not argue his trial counsel was ineffective. 

In fact, he seems to argue the opposite; namely, his trial counsel 

“may have reasonably believed” she could not have raised the

issue under Assembly Bill No. 333 because of the disposition in 

Paniagua II and the purportedly unsettled state of the law at the 

time of the resentencing hearing. 
28

Martinez argued there was insufficient evidence to find Martinez 

was not eligible for relief under section 1172.6. 

The superior court stated it was limiting the evidence it 

would consider to the evidence presented at Martinez’s

preliminary hearing, explaining it would be improper to consider 

any evidence from Paniagua’s trial or the appellate opinions in 

this case. The court also stated the applicable standard of proof: 

“It is the People’s burden here to establish beyond a reasonable 

doubt that Mr. Martinez could be convicted of the crime of which 

. . . he pled in this case beyond a reasonable doubt.” The court 

found the following facts were “particularly salient as to 

[Martinez’s] intent”: Martinez and Paniagua, both members of 

the same gang, were in the territory of a rival gang; Martinez 

was driving the car when Paniagua “hit up” Castillo; and after 

that encounter, “while Martinez was doing the driving,” Martinez 

pulled his car up “right behind” another car, “which appeared to 

be an intentional means by which to facilitate Mr. Paniagua 

having this second confrontation.” The court found that 

Paniagua wore a hat representing his gang into a rival gang’s 

territory, where “confrontation is either likely to happen or you 

are going to initiate it happening” and that Martinez did “the 

driving for Mr. Paniagua to commit multiple intentional acts of 

violence against the rival gang.” The court found that, even if 

Martinez had been surprised by Paniagua confronting Castillo, 

“there was no way he could have been surprised” by the second 

encounter that resulted in the shooting. 

The court stated: “Mr. Martinez facilitated it, and he aided 

and abetted it by providing the access. The driving. Getting 

Mr. Paniagua to the location where these crimes happened.” The 

court found the evidence showed “beyond a reasonable doubt” 
29

that “it was more than possible” Martinez’s actions “would result 

in the conviction of at least voluntary manslaughter, but more 

likely a murder under the current law.” The court stated: “I’m 

not saying that he would be, but he certainly could be.” The court 

concluded by ruling: “Direct aiding and abetting is still a legally 

viable and appropriate theory of liability. And I do believe that 

Mr. Martinez would still be convicted under that theory were this 

case to go to trial against him.” 

2. Applicable Law and Standard of Review

Effective 2019, the Legislature substantially modified the 

law governing accomplice liability for murder, eliminating the 

natural and probable consequences doctrine as a basis for finding 

a defendant guilty of murder (People v. Reyes (2023) 14 Cal.5th 

981, 984; People v. Gentile (2020) 10 Cal.5th 830, 842-843) and 

significantly narrowing the felony-murder exception to the malice 

requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); 

see People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong);

People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) Section 188, 

subdivision (a)(3), now prohibits imputing malice based solely on 

an individual’s participation in a crime and requires proof of 

malice to convict a principal of murder, except under the revised 

felony-murder rule in section 189, subdivision (e). The latter 

provision requires the People to prove that the defendant was the 

actual killer (§ 189, subd. (e)(1)); that the defendant, though not 

the actual killer, with the intent to kill assisted in the 

commission of the murder (§ 189, subd. (e)(2)); or that the 

defendant was a major participant in a felony listed in 

section 189, subdivision (a), and acted with reckless indifference 

to human life, “as described in subdivision (d) of Section 190.2,”
30

the felony-murder special-circumstance provision. (§ 189, 

subd. (e)(3); see People v. Wilson (2023) 14 Cal.5th 839, 868-869; 

Strong, at p. 708; Gentile, at pp. 842-843; People v. Cody (2023) 

92 Cal.App.5th 87, 105.)

Section 1172.6 creates “a procedural mechanism for those 

convicted of murder under prior law to seek retroactive relief.” 

(People v. Wilson, supra, 14 Cal.5th at p. 869.) The statute 

authorizes an individual convicted of felony murder or murder, 

attempted murder, or voluntary manslaughter based on a natural 

and probable consequences doctrine “or any other theory under 

which malice is imputed to a person based solely on that person’s 

participation in a crime” to petition the superior court to vacate 

the conviction and be resentenced on any remaining counts if he 

or she could not now be convicted of murder, attempted murder, 

or manslaughter because of the changes the Legislature made to 

the definitions of the crime of murder. (See Strong, supra, 

13 Cal.5th at p. 798; Lewis, supra, 11 Cal.5th at p. 957; People v. 

Gentile, supra, 10 Cal.5th at p. 843.) 

Where the petitioner makes the requisite prima facie 

showing he or she is entitled to relief under section 1172.6, the 

court must issue an order to show cause and hold an evidentiary 

hearing to determine whether to vacate the murder conviction 

and resentence the petitioner on any remaining counts.

(§ 1172.6, subds. (c), (d)(1)); see Strong, supra, 13 Cal.5th at 

pp. 708-709.) 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 

petitioner 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.” (§ 1172.6, subd. (d)(3); see 
31

People v. Vance (2023) 94 Cal.App.5th 706, 715; People v. Burgess

(2023) 88 Cal.App.5th 592, 601-602.)

The 2022 amendments to section 1172.6 “clarified that the 

[superior] court’s role in a section 1172.6 proceeding is to act as 

an independent fact finder and determine, in the first instance, 

whether the petitioner committed murder” under amended 

sections 188 and 189. (People v. Guiffreda (2023) 87 Cal.App.5th

112, 123; accord, People v. Clements (2022) 75 Cal.App.5th 276, 

294; People v. Garrison (2021) 73 Cal.App.5th 735, 745.) The 

court may consider evidence previously admitted at any prior 

hearing or trial that is admissible under current law, including 

witness testimony. (§ 1172.6, subd. (d)(3); see People v. Burgess, 

supra, 88 Cal.App.5th at p. 600.) The petitioner and the 

prosecutor may also offer new or additional evidence. (§ 1172.6, 

subd. (d)(3); see People v. Gentile, supra, 10 Cal.5th at pp. 853-

854.)

“If the prosecution fails to sustain its burden of proof, the 

prior conviction, and any allegations and enhancements attached 

to the conviction, shall be vacated and the petitioner shall be 

resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3);

see People v. Wilson, supra, 14 Cal.5th at p. 869; People v. 

Bratton (2023) 95 Cal.App.5th 1100, 1112-1113.) We review 

de novo whether the superior court applied the proper standard 

of proof at the evidentiary hearing. (See People v. Clements, 

supra, 75 Cal.App.5th at p. 293.)
32

3. The Superior Court Did Not Comply with 

Section 1172.6, Subdivision (d)(3)

The superior court did not apply the correct standard of 

proof at the evidentiary hearing under section 1172.6, 

subdivision (d)(3). Although the court initially stated the correct

standard13—beyond a reasonable doubt—the remainder of the 

court’s comments reflect that the court did not apply that 

standard. For example, after stating Martinez facilitated the 

shooting, the court concluded it was “more than possible” that 

Martinez’s actions would result in a conviction of voluntary 

manslaughter or murder. More than possible is not beyond a 

reasonable doubt; it’s not even by a preponderance of the 

evidence. Section 1172.6, subdivision (d)(3), requires the court to 

find, beyond a reasonable doubt, a petitioner is guilty of murder, 

not possibly guilty of murder, or, as the court also stated, “likely” 

guilty of murder. (See People v. Clements, supra, 75 Cal.App.5th 

at p. 296 [Once “‘a prima facie case of eligibility has been made 

and an order to show cause issued, the prosecution’s burden is 

neither conditional nor hypothetical. Under subdivision (d)(3) 

the prosecutor must prove “the petitioner is ineligible for 

resentencing,” not that he or she might be or could be 

ineligible.’”].) The court’s comment it was not concluding

Martinez would be convicted of murder, only that he could be, is 

consistent with applying the wrong standard of proof.

The record also shows the superior court did not make a

ruling as an independent fact finder. Although the court stated 

13 More or less. The court’s description of the standard, that 

the People had the burden to prove beyond a reasonable doubt 

Martinez could be convicted of the crime to which he pleaded no 
33

Martinez would be convicted (in addition to stating he could be 

convicted) as a direct aider and abettor, the court made this 

statement in the context of what would happen at a trial before a 

jury, not what the court was actually finding as a trier of fact. 

Indeed, the court never suggested it understood its role was to act 

as an independent fact finder. (Cf. People v. Burgess, supra, 

88 Cal.App.5th at p. 602 [“the trial court applied the correct 

standard of proof, made extensive factual findings relevant to 

whether defendant committed murder under current law, and 

made a legal conclusion defendant did commit murder under 

current law”].)

The People argue the court’s comments “as a whole” 

demonstrated the court “acted as an independent fact finder as 

required by section 1172.6, subdivision (d)(3).” The portions of 

the record the People cite, however, show the opposite. For 

example, the People point to the court’s statements that direct 

aiding and abetting remained a viable legal theory of liability and 

that, in the court’s view, Martinez “‘would still be convicted under 

that theory were this case to go to trial against him.’” This 

statement, however, was not a finding that Martinez is guilty of 

murder; as discussed, it was a finding that a different fact finder 

(i.e., a jury) could or would find Martinez guilty. (Cf. People v. 

Cody, supra, 92 Cal.App.5th at p. 110 [“Although at one point the 

trial court alluded to what a ‘reasonable and rational jury’ would 

contest, was inaccurate. Martinez pleaded to and was convicted 

of manslaughter; the issue was whether he was guilty of murder 

under current law. (See § 1172.6, subd. (d)(3).) And, contrary to 

the court’s use of the phrase “could be convicted,” section 1172.6, 

subdivision (d)(3), requires the superior court to find the

petitioner “is guilty” of murder. (See People v. Guiffreda, supra

87 Cal.App.5th at p. 123.)
34

do, the court immediately corrected itself by saying, ‘of course I’m 

not saying what they would do. I’m the independent fact finder 

here, so let’s be clear.’”].) 

DISPOSITION

Paniagua’s judgment is modified to strike the gang 

enhancement on count 9. As modified, the judgment is affirmed. 

The trial court is directed to prepare a corrected abstract of 

judgment and send it to the Department of Corrections and 

Rehabilitation. The order denying Martinez’s petition under 

section 1172.6 is reversed, and the superior court is directed to 

conduct a new evidentiary hearing and apply the correct 

standard of proof under section 1172.6, subdivision (d)(3).

SEGAL, Acting P. J.

We concur:

FEUER, J.

MARTINEZ, J.