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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

Defendant and Appellant.

 B314893

 (Los Angeles County

 Super. Ct. No. KA104924)

APPEAL from an order judgment of the Superior Court of 

Los Angeles County, Thomas C. Falls, Judge. Reversed and 

remanded.

Eric R. Larson, under 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 Attorneys General, for Plaintiff and Respondent.
2

I. INTRODUCTION

Defendant 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 resentenced him accordingly. We 

reverse and remand for resentencing.

II. PROCEDURAL BACKGROUND

A jury convicted defendant and codefendant Juan Cortez2

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 District Attorney (District Attorney) argued 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 murder 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 Code.
3

sentenced 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 human 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.

On 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, the District Attorney filed an 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 court 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); plus one 

year for the firearm enhancement; plus one year for the second 

degree robbery conviction 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 degree 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 

consecutive five-year term for second degree robbery on count 2.

5

5 The 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, subd. (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 . . . section 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 vacated 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 made 
6

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.)

When a petitioner makes a prima facie showing that he is 

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 petitioner’s murder 

conviction. (§ 1172.6, subd. (d)(1).) “The 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), italics 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 pursuant 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.App.4th 

373, 377.)
7

‘target offense’ or an ‘underlying felony’ that was not originally 

charged.” (People v. Silva (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 pursuant 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. We 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 resentence defendant accordingly. 

(§ 1172.6, subd. (e).)
8

IV. DISPOSITION

The trial court’s order redesignating defendant’s count 1 

conviction as a second degree murder conviction is reversed. The 

matter is remanded for the court to redesignate defendant’s 

count 1 conviction as a conviction for the underlying offense of 

second degree robbery and to resentence 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.