Filed 8/16/21 P. v. Santos CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

SANDRO SANTOS,

Defendant and Appellant.

 B306738

 (Los Angeles County

 Super. Ct. No. BA124342)

APPEAL from an order of the Superior Court of Los 

Angeles County, Mark S. Arnold, Judge. Reversed and 

remanded. 

Lynda A. Romero, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Amanda Lopez and Chung L. Mar, 

Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________________________

In 1996, a jury convicted defendant and appellant Sandro 

Santos1 of first degree murder (Pen. Code, § 187, subd. (a)),2

among other crimes, and found true the special circumstance that 

Santos committed murder in the commission of a robbery 

(§ 190.2, subd. (a)(17)), and the allegation that he personally used

a firearm during the commission of the crimes (§ 12022.5, subd. 

(a)). In 2020, Santos petitioned for resentencing pursuant to

section 1170.95 and Senate Bill No. 1437 (Senate Bill 1437), 

which provide for vacatur of a defendant’s murder conviction and 

resentencing if the defendant was convicted of felony murder and 

the defendant (1) was not the actual killer, (2) did not act with 

the intent to kill, and (3) was not a major participant who acted 

with reckless indifference to human life. (§§ 1170.95, subd. (a), 

189, subd. (e).) The trial court summarily denied the petition 

without appointing counsel, finding that Santos was ineligible for 

resentencing as a matter of law because “[Santos] was found by 

the jury to be the shooter in that the personal use of a firearm 

allegation (P.C. 12022.5 (a)) [was found] to be true.”

1 Santos has also used the name Glenn Gilbert Avilize. 

2 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

Santos contends that the trial court erred when it found 

him ineligible for relief. He argues that the filing of a facially 

sufficient petition for resentencing under section 1170.95 entitles 

him to appointment of counsel and the opportunity for further 

briefing, regardless of the petition’s merit. Santos asserts that 

the trial court erred when it found that, as the actual killer, he 

was ineligible for resentencing, either because the court engaged 

in impermissible fact-finding, or because it relied on the personal 

firearm use enhancement. Santos also contends that the jury’s 

special circumstance finding does not bar his eligibility for 

resentencing as a matter of law.

The People urge us to affirm the trial court’s order on the

basis that Santos was a major participant in the underlying 

robbery and acted with reckless indifference to human life, 

because although the trial court did not deny the petition on that

basis, we may affirm on any ground that is legally correct.

Our Supreme Court has held that the filing of a facially 

sufficient petition entitles a petitioner to appointment of counsel

and briefing under section 1170.95. In this case, the trial court’s 

failure to appoint counsel was not harmless. We agree with 

Santos that the trial court erred to the extent that it engaged in 

fact finding, as its evaluation of the facts was inappropriate when 

determining whether he made a prima facie showing of 

entitlement under section 1170.95, subdivision (c). We further 

agree with Santos that neither the jury’s robbery-murder special 

circumstance finding nor its personal firearm use finding bars 

him from eligibility for resentencing. We reverse the order 

denying Santos’s 1170.95 petition, and we remand the matter for 

the trial court to appoint counsel and permit briefing.
4

FACTS AND PROCEDURAL HISTORY3

“On October 10, 1995, [Ricardo] Aguilera agreed to meet 

with defendant to purchase a gun. Aguilera drove to a house on

Highland Avenue with his teenage stepson Gillard and Gillard’s

cousin Laws. Neither Aguilera, Laws nor Gillard was in

possession of a firearm. Aguilera entered the house. Inside the

house were defendant and [Jason] Richard with many firearms 

displayed. Aguilera inspected a nine-millimeter gun, and 

defendant quoted a price. Aguilera thought the price might be 

too high so he went outside to discuss it with Laws. Laws and 

Aguilera returned to the house. Gillard continued to wait in the 

car listening to music.

“Defendant pointed a gun at Laws and Aguilera, and told

them to lie on the ground. Richard went through the two men’s

pockets and removed cash and papers. Richard then went 

outside at defendant’s behest to retrieve Gillard. Gillard entered 

the house. When he saw Aguilera and Laws lying on the ground,

Gillard thought they were dead and he would be killed. He 

turned to flee when he was confronted by Richard with a gun.

Gillard and Richard struggled for the gun. The gun fired. 

During the struggle, defendant, who was across the living room 

from Gillard and Richard, fired a nine-millimeter weapon.

Gillard was shot in the ribs and thigh, and Richard was fatally 

wounded. Richard had been shot twice in the neck and once in 

the torso. One neck wound and the torso wound were fatal. The 

torso wound was caused by a gun fired within two feet of Richard. 

3 The facts are drawn from this court’s prior unpublished 

opinion in People v. Santos (Feb. 20, 1998, B108055) (Santos), of 

which we have taken judicial notice.
5

The fatal neck wound was inflicted by a .38-caliber weapon.

Aguilera was shot in both shoulders and one knee.

“After the shooting stopped, defendant gathered a number

of guns in a duffel bag and left the residence through the back

door.

“Two nine-millimeter guns were involved in the shootings,

as well as at least one .38 caliber gun. Nine millimeter bullets

were removed from Aguilera and Gillard. A .38 caliber bullet was

removed from Aguilera and Richard.” (Santos, supra, B108055, 

at pp. 3–4.)

At trial, the prosecution argued that Santos was guilty of 

murder on either a felony murder or provocative act theory of 

liability. (Santos, supra, B108055, at p. 4.) The jury convicted 

Santos of first degree murder (§ 187, subd. (a) [count 1]), three 

counts of attempted voluntary manslaughter (§§ 187/664 [counts 

2, 4 & 6]), and two counts of second degree robbery (§ 211 [counts 

3 & 5]). (Id. at p. 2.) It found true the special circumstance that 

Santos committed murder in the commission of a robbery (§ 

190.2, subd. (a)(17)), and the allegation that he personally used a 

firearm during the commission of the crimes (§ 12022.5, subd. 

(a)). (Ibid.) The trial court sentenced Santos to life without the 

possibility of parole, plus 19 years in state prison. (Ibid.) 

On appeal, Santos argued that there was insufficient 

evidence to support his first degree murder conviction on either a 

felony murder theory or a provocative act theory of liability. The 

court of appeal held that the evidence supported Santos’s murder 

conviction under a provocative act theory and declined to reach 

the question of whether substantial evidence supported the 

conviction on a felony-murder theory. (Santos, supra, B108055, 

at p. 4.) 
6

On April 8, 2020, Santos filed a section 1170.95 petition 

seeking vacatur of his murder conviction, which the court denied 

in a minute order dated May 27, 2020. The court ruled:

“Defendant was found by the jury to be the shooter in that the 

personal use of a firearm allegation (P.C. 12022.5 (a)) to be true 

[sic].”

4 

Santos timely appealed.

DISCUSSION

Section 1170.95

“Senate Bill No. 1437, which went into effect on January 1, 

2019, amended section 189 to limit the scope of liability for 

murder on a felony-murder theory. [Citation.] With respect to 

felony murder and as applicable to [Santos], section 189, 

subdivision (a) states ‘All murder . . . that is committed in the 

perpetration of, or attempt to perpetrate, . . . robbery, [or] 

burglary . . . is murder of the first degree.’ However, section 189, 

subdivision (e)—the new provision added by Senate Bill No. 

1437—limits liability for felony murder to persons for whom ‘one 

4 Santos filed a nearly identical section 1170.95 petition on 

June 18, 2020, which the court denied the same day in a minute 

order, stating: “Defendant is an actual shooter which resulted in 

the death of the victim. He is clearly a major participant and 

acted with reckless indifference to human life. Petition under 

P.C. 1170.95 is denied.” The People assert that the second 

petition was successive and procedurally barred, but that we 

need not address that issue because although the trial court’s 

first denial order was not premised on a major participant 

finding, this court may uphold the denial on any legally correct 

theory. 
7

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

of Section 190.2.’ [Citation.]” (People v. Drayton (2020) 47 

Cal.App.5th 965, 972–973 (Drayton); abrogated on another 

ground in People v. Lewis (July 26, 2021, No. S260598) __ Cal.5th

__ [2021 WL 3137434] (Lewis).)

If, as Santos did here, a petitioner files a section 1170.95 

petition that contains all of the statutorily required information

and requests counsel, the court must appoint counsel and order 

briefing. (Lewis, supra, __ Cal.5th at p. __ [2021 WL 3137434, at

*3–*10].) The court then evaluates whether the petitioner has 

made a prima facie showing that he or she is eligible for relief. 

(Id. at *3.) To do so, the trial court may review the record of 

conviction, however, “the prima facie inquiry under subdivision 

(c) is limited. Like the analogous prima facie inquiry in habeas 

corpus proceedings, “‘“the court takes petitioner’s factual 

allegations as true and makes a preliminary assessment 

regarding whether the petitioner would be entitled to relief if his 

or her factual allegations were proved. If so, the court must issue 

an order to show cause.”’ (Drayton, supra, 47 Cal.App.5th at p.

978, quoting Cal. Rules of Court, rule 4.551(c)(1)).) ‘[A] court 

should not reject the petitioner’s factual allegations on credibility 

grounds without first conducting an evidentiary hearing.’ (Ibid., 

fn. omitted, citing In re Serrano (1995) 10 Cal.4th 447, 456 

(Serrano).) ‘However, if the record, including the court’s own 
8

documents, “contain[s] facts refuting the allegations made in the 

petition,” then “the court is justified in making a credibility 

determination adverse to the petitioner.”’ (Drayton, at p. 979, 

quoting Serrano, at p. 456.)” (Id. at *10.) 

“[A] petitioner ‘whose petition is denied before an order to 

show cause issues has the burden of showing “it is reasonably 

probable that if [he or she] had been afforded assistance of 

counsel his [or her] petition would not have been summarily 

denied without an evidentiary hearing.”’ ([People v.] Daniel[ 

(2020)] 57 Cal.App.5th [666,] 676, review granted [Feb. 24, 2021, 

S266336].)” (Lewis, supra, __ Cal.5th at p. __ [2021 WL 3137434, 

at *12].)

Analysis

Our Supreme Court has recently held that the filing of a 

facially sufficient petition—i.e. a petition that contains the basic 

averments required by subdivision (b)(1)(A), (B) and (C)5—is 

sufficient to establish that the petitioner has made a prima facie 

showing of eligibility for relief under section 1170.95, subdivision 

(c). (Lewis, supra, __ Cal.5th at p. __ [2021 WL 3137434, at *3-

*10].) Here, the trial court’s failure to appoint counsel was error, 

5 Section 1170.95, subdivision (b)(1) provides: “The petition 

shall include all of the following: [¶] (A) A declaration by the 

petitioner that he or she is eligible for relief under this section, 

based on all the requirements of subdivision (a). [¶] (B) The 

superior court case number and year of the petitioner’s 

conviction. [¶] (C) Whether the petitioner requests the 

appointment of counsel.”
9

and because we conclude “‘“it is reasonably probable that if 

[Santos] had been afforded assistance of counsel his . . . petition 

would not have been summarily denied without an evidentiary 

hearing”’ [citation]” (Id. at *12), the error cannot be deemed 

harmless.

There is no basis to deny the petition on the record before 

us.6 First, a trial court may not engage in fact-finding at this 

stage in proceedings. To the extent that the trial court evaluated 

the facts underlying Santos’s conviction to determine that he was 

a major participant in the burglary and acted with reckless 

indifference to human life, such an inquiry requires fact-finding 

and the weighing of evidence, which cannot take place until an 

order to show cause issues and a hearing is held. (See Drayton, 

supra, 47 Cal.App.5th at pp. 978–979.)

Second, contrary to the People’s argument, a trial court is 

prohibited from finding a petitioner ineligible for relief under 

section 1170.95, subdivision (c), solely on the basis of a special 

circumstance finding made before People v. Banks (2015) 61 

Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 

(Clark) were decided. (People v. York (2020) 54 Cal.App.5th 250,

257–263 (York), review granted Nov. 18, 2020, S264954; People v.

Torres (2020) 46 Cal.App.5th 1168, 1180 (Torres), abrogated on 

another ground in Lewis, supra, __ Cal.5th at p. __ [2021 WL 

3137434]; People v. Smith (2020) 49 Cal.App.5th 85, 93-94 

(Smith), review granted July 22, 2020, S262835.) We have 

explained that “[i]n their wording, the requirements for a special

circumstance finding are . . . identical to the requirements for 

felony murder, as it is currently defined. However, in [Banks and 

6 The record on appeal does not contain the record of 

conviction in its entirety.
10

Clark], our Supreme Court ‘construed the meanings of “major 

participant” and “reckless indifference to human life” “in a 

significantly different, and narrower manner than courts had 

previously.” (Torres, supra, 46 Cal.App.5th at p. 1179.)’ (Smith, 

supra, 49 Cal.App.5th at p. 93.) Where a special circumstance 

finding was made before Banks and Clark, the terms ‘major 

participant’ and ‘reckless indifference’ underlying that finding 

have significantly different meanings than these terms have for 

purposes of convicting a defendant of murder pursuant to section 

189, subdivision (e)(3), as amended by Senate Bill 1437. As a 

consequence, a pre-Banks and Clark special circumstance finding 

cannot preclude eligibility for relief under . . . section 1170.95[, 

subdivision (c),] . . . because the factual issues that the jury was 

asked to resolve in a trial that occurred before Banks and Clark

were decided are not the same factual issues our Supreme Court 

has since identified as controlling.” (York, supra, at p. 258, fn. 

omitted.) The People offer no persuasive reason for us to 

abandon our prior holdings.

Finally, a finding under section 12022.5, subdivision (a),

that a defendant personally used a gun does not automatically 

preclude eligibility under section 1170.95. (See People v. Offley

(2020) 48 Cal.App.5th 588, 598–599 (Offley) [jury’s true finding 

under §12022.53, subd. (d) alone does not preclude eligibility for 

resentencing under §1170.95, subd. (c)].) In Offley, our colleagues 

in Division One of the Second District of the Court of Appeal 

addressed the related issue of whether a section 12022.53, 

subdivision (d) enhancement automatically precludes relief. The 

facts in Offley varied significantly from this case—Offley was 

tried with multiple defendants and convicted of second degree 

murder. The jury in Offley’s case found true the allegation that 
11

Offley personally and intentionally discharged a firearm causing 

the death of the victim under section 12022.53, subdivision (d). 

Moreover, Offley’s jury was instructed on the natural and 

probable consequences doctrine as it relates to conspiracy to 

murder. Regardless of these differences, however, the section 

12022.53, subdivision (d) enhancement involved is analogous to 

the firearm use enhancement in this case, in that both are 

“general intent enhancement[s], and do[] not require the 

prosecution to prove that the defendant harbored a particular 

mental state as to the victim’s injury or death.” (Offley, supra, 48 

Cal.App.5th at p. 598 [§12022.53, subd. (d)]; see also People v. 

Wardell (2008) 162 Cal.App.4th 1484, 1494–1495 [§12022.5, subd. 

(a) is a general intent enhancement].) 

As the Offley court explained, “Both express and implied 

malice require proof of the defendant’s mental state. In the case 

of express malice, the defendant must have intended to kill. 

[Citation.] Implied malice also involves a mental component, 

namely a ‘““conscious disregard for the danger to life that the 

[defendant’s] act poses.”’ [Citation.] This requires ‘“examining 

the defendant’s subjective mental state to see if he or she actually 

appreciated the risk of his or her actions.” [Citation.] “It is not 

enough that a reasonable person would have been aware of the 

risk.”’ [Citation.]” (Offley, supra, at p. 598.) The Offley court 

concluded that “Because an enhancement under section 12022.53, 

subdivision (d) does not require that the defendant acted either 

with the intent to kill or with conscious disregard to life, it does 

not establish that the defendant acted with malice aforethought.” 

(Ibid.) The same is true of section 12022.5, subdivision (a).

In this case, there is no information in the appellate record 

that leads us to conclude Santos was Richard’s actual killer as a 
12

matter of law. Although the record of conviction (or new and/or 

additional evidence submitted pursuant to section 1170.95, 

subdivision (d)) may contain evidence that could lead the finder of 

fact to conclude that this was the case, as we have discussed, the 

trial court cannot properly engage in fact-finding at this early 

stage. 

Santos was tried under both the provocative act and the

felony murder theory of liability. Following the enactment of 

Senate Bill 1437, he could still be liable for murder under a 

provocative act theory of murder,7 or under a felony murder 

theory if he was the actual killer, intended to kill, or was a major 

participant in the robbery who acted with reckless indifference to 

human life. (§§ 1170.95, subd. (a), 189, subd. (e).) None of those 

conditions can be established definitively on the record before us. 

7 “Under the provocative act [murder] doctrine, when the 

perpetrator of a crime maliciously commits an act that is likely to 

result in death, and the victim kills in reasonable response to 

that act, the perpetrator is guilty of murder. [Citation.] ‘In such 

a case, the killing is attributable, not merely to the commission of 

a felony, but to the intentional act of the defendant or his 

accomplice committed with conscious disregard for life.’

[Citation.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 655, fn. 

omitted (Gonzalez).) All of the courts to have considered the issue 

have found that the provocative act theory of murder is not a 

subset of the natural and probable consequences doctrine, and is 

therefore a viable theory of liability following enactment of 

Senate Bill 1437. (See People v. Mancilla (Aug. 12, 2021, No. 

B308413) __ Cal.App.5th __ [2021 WL 3560657, at *5–*7]; People 

v. Swanson (2020) 57 Cal.App.5th 604, review granted February 

17, 2021, S266262; People v. Johnson (2020) 57 Cal.App.5th 257; 

People v. Lee (2020) 49 Cal.App.5th 254, review granted July 15, 

2020, S262459.) Santos does not argue otherwise.
13

We therefore reverse and remand to the trial court to appoint 

counsel and order briefing, as required under section 1170.95, 

subdivision (c).

DISPOSITION

The trial court’s order denying Santos’s section 1170.95

petition is reversed and the matter is remanded for the trial court 

to appoint counsel and order briefing from the parties pursuant 

to section 1170.95, subdivision (c).

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.