Filed 8/24/22 P. v. Castiblanco CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL CAS TIBLANCO,

Defendant and Appellant. B 314893

(Los Angeles County Super. Ct. No. KA104924)

APPEAL from an order judgment of the Superior Court of Los Angeles County, Thomas C. Falls, Judge. R eversed and
remanded

. Eric R. Larson, unde r appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Daniel C. Chang and William H.
Shin , Deputy Attor ney s General, for Plaintiff and Respondent.2 I. INTRODUCTION

D efendant appellant Michael Castiblanco appeals from the trial court’s denial of his petition to vacate his murder conviction
pursuant to former section 1170.95 (now § 1172.6 ) 1

. Although
the court found that defendant was eligible for relief under section 1172.6, rather than vacate defendant’s murder conviction, it redesignated his first degree murder conviction as one for second degree murder and re sentenced him accordingly. We
reverse and r emand for resentencing.

I I. PROCEDURAL BACKGROUND

A jury convicted defendant and codefendant Juan Cortez 2 of first degree murder (Pen. Code, § 187, subd. (a) 3 ; count 1) and second degree robbery (§ 211 ; count 2)

. At trial, the Los Angeles County Distr ict Attorney (District Attorney) argu ed to the jury
that defendant was guilty as an aider and abettor either under the felony murder rule or the natural and probable consequences
doctrine. The jury found true the special circumstance allegation
that the m urder was committed while defendant was engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and the allegation that a principal was armed with a firearm during the commission of the offenses (§ 12022, subd. (a)(1)). The trial court

1 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).

2 Cortez is not a party to this appeal.

3 All further statutory references are to the Penal Cod e.3

sentence d defendant to a term of life in prison without the possibility of parole for his murder conviction plus one year for the firearm enhancement. Sentence on the robbery conviction

was stayed under section 654. ( People v. Castiblanco et al. (Jan. 24, 2019, B284319 ) [nonpub. opn.] .) On direct appeal, a prior panel of this division reversed the jury’s special circumstance finding, holding there was insufficient evidence that defendant’s participation in the robbery
demonstrated a reckless indifference to huma n life. The panel otherwise affirmed defendant’s judgment and remanded the matter for resentencing. ( People v. Castiblanco et al. , supra , B284319

. ) On April 19, 2019, prior to the resentencing hearing pursuant to the remittitur, defendant

, representing himself

, filed

a section 1172.6 petition for resentencing

. O n October 3, 2019, pursuant to the remittitur, the trial
court resentenced defendant on his count 1 murder conviction to 25 years to life plus one year for the firearm enhancement

. The
court did not make any changes to the sentence for defendant’s count 2 second degree robbery conviction. On December 3, 2019, defendant , represented by counsel, 4 filed a supplemental section 1172.6 petition for resentencing. On January 7, 2020, t he District Attor ney filed a n opposition to the petition. On February 27, 2020, defendant filed a reply. On February 18, 2021, the trial court held a hearing and found that defendant had demonstrated a prima facie case for

4 Although not reflected in a minute order in the record on appeal, the trial court appears to have appointed counsel to represent defendant in early May 2019.4

relief and issued an order to show cause. The c ourt set the matter for a hearing on April 7, 2021. On April 7, 2021, the District Attorney filed a supplemental brief informing the trial court that he no longer opposed
defendant’s section 1172.6 petition. The District Attorney requested that defendant be resentenced to the upper term of five years for the underlying target offense of second degree robbery

on count 1 pursuant to section 1172.6, subdivision (e); pl us one year for the firearm enhancement; plus one year for the second degree robbery convic tion in count 2. At the April 7, 2021, hearing, the trial court heard the parties’ arguments on the order to show cause

, allowed the parties to file additional supplemental briefs, and took the matter
under submission. On May 24, 2021, defendant filed a supplemental brief. On July 12, 2021, the trial court issued a memorandum of decision. It found “[t]he target offense against [defendant] is murder, not first [ ] degree murder, just murder.” The court further found that defendant was guilty of second deg ree murder beyond a reasonable doubt. Accordingly, it denied defendant’s petition to vacate his murder conviction and set the matter for resentencing on the target offense of second degree murder. On August 27, 2021, the trial court “reduce [ d ] ” defendant ’s first degree murder conviction on count 1 to second degree
murder. The court sentenced defendant to an aggregate term of 21 years to life comprised of 15 years to life plus a consecutive

one

- year term for the firearm enhancement on count 1 and a

consec utive five

- year term for second degree robbery on count 2

. 5

5 T he court did not impose or stay the one

- year firearm enhancement on count 2.5 III. DISCUSSION

“Senate Bill [No.] 1437 [(Senate Bill 1437)] was enacted 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, s ubd. (f).) Substantively, Senate Bill 1437 accomplishes this by amending section 188, which defines malice, and section 189, which defines the degrees of murder, and as now amended, addresses felony murder liability. Senate Bill 1437 also adds .

. . sect ion 1170.95 [now section 1172.6] , which allows those ‘convicted of felony murder or murder under a natural and probable consequences theory .

. . [to] file a petition with the court that sentenced the petitioner to have the petitioner ’ s murder conviction v acated and to be resentenced on any remaining counts .

. . .’ (§ 1170.95, subd. (a) [now § 1172.6, subd. (a)] .) “An offender may file a petition under section 1170.95 [now § 1172.6] where all three of the following conditions are met: ‘(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 [s]ection[s] 188 or 189 made6

effective January 1, 2019.’ (§ 1170.95, subd. (a)(1)

– (3) [now § 1172.6, subd. (a)(1)

– (3)] .)” ( People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
W hen a petitioner makes a prima facie showing that he i s entitled to section 1172.6 relief, the trial court is required to issue
an order to show cause. (§ 1172.6 , subd. (c).) Within 60 days of issuing the order to show cause, the court is required to hold a hearing to determine whether to vacate the petitio ner’s murder
conviction . (§ 1172.6 , subd. (d)(1).) “ T he parties may waive a resentencing hearing and stipulate that the petitioner is eligible
to have the murder

. . . conviction vacated and to be resentenced. If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner. ” (§ 1172.6
, subd. (d)(2), i talics added ; People v . Ramirez (2019) 41 Cal.App.5th 923, 932 ( Ramirez ) [ when there is a prior court of appeal finding that the defendant was not a major participant in the underlying felony and did not act with reckless indifference to
human life

, subdivision (d)(2) requires a trial court to proceed directly to resentencing ] .)
Under section 1172.6 , subdivision (e), a “ petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursu ant to this section, murder

. . . was charged generically, and the target offense was not charged. ” 6 Subdivision (e) permits a petitioner to “ be resentenced for a

6 “Generic murder” refers to a murder charge that does not specify a degree. (See People v. Jones (2014) 230 Cal. A pp.4th 373, 377.)7

‘ target offense ’ or an ‘ underlying felony ’ that was not originally charged. ” ( People v. Sil va (2021) 72 Cal.App.5th 505, 517 .)
In its prior opinion in this case, the panel found there was insufficient evidence that defendant’s participation in the robbery
demonstrated a reckless indifference to human life. ( People v.
Castiblanco et al. , supra , B284319

. ) That finding required the
trial court to vacate defendant ’ s murder conviction and
resentence him on the underlying felony of robbery . (§ 1172.6
, subd. (d)(2); Ramirez , supra , 41 Cal.App.5th at p. 932 .) Instead, the court held a hearing pursua nt to section 1172.6 , subdivision (d)(3) and resentenced defendant to second degree murder

. Defendant contends the court erred , the Attorney General concedes, and we agree. The parties agree that the information charged defendant generically with murder. W e agree with the parties and reverse the trial court’s order redesignating count 1 as a second degree
murder conviction and remand the matter for the court to redesignate count 1 as a conviction for the underlying offense of second degree robbery and re sentence defendant accordingly

. (§ 1172.6 , subd. (e).)8 IV. D ISPOSITION

The trial court’s order redesignating d efendant ’ s count 1
conviction as a second degree murder conviction is reversed. The
matter is remanded for the court to redesignate defenda nt’s

count 1 conviction as a conviction for the underlying offense of second degree robbery and to resentenc e defendant on his robbery
convictions and the firearm enhancements

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

MOOR , J.