Filed 10/6/20 P. v. Quintos CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LEO JAVIER QUINTOS,

Defendant and Appellant.

 H047591

 (Monterey County

 Super. Ct. No. SS022073B)

Leo Javier Quintos appeals the trial court’s summary denial of his petition to 

vacate his 2002 murder conviction and resentence him pursuant to Penal Code section 

1170.95. He contends, and the Attorney General concurs, that the trial court failed to 

follow the procedural requirements of the statute. We agree, reverse the trial court’s 

order, and remand the matter with directions to issue an order to show cause under Penal 

Code section 1170.95, subdivision (c) and hold a hearing pursuant to section 1170.95, 

subdivision (d).

I. FACTS AND PROCEDURAL BACKGROUND

We take the facts underlying Quintos’s crimes from this court’s opinion in his 

direct appeal of the conviction. (People v. Quintos (Mar. 1, 2004, H025916) [nonpub. 

opn.] (Quintos I).) 
2

“At 11:48 p.m. on August 1, 2002, police officers were dispatched to a possible 

shooting near the Aquarium in Monterey. Ignacio Sanchez had been shot and was lying 

in the street near his car. Sanchez’s companion gave a description of the suspects to the 

police. Sanchez was transported to the hospital where he died.

“Sanchez’s companion told police that she and Sanchez had been sitting in their 

car when a bronze 1990 Honda Civic pulled up behind them. Two Hispanic males, later 

identified as Anthony Estrada and [Quintos], exited the car. Estrada pointed a gun, and 

said, ‘[G]et out, give up your shit.’ After both Estrada and [Quintos] punched and kicked 

Sanchez, Estrada shot him. Sanchez’s companion was also punched in the face. Estrada 

and [Quintos] then fled. The driver of the Honda was later identified as Veronica 

Galvan.

“Fingerprints were taken from Sanchez’s car. They matched those of Estrada and 

[Quintos]. Both Estrada and [Quintos] were on parole from the California Youth 

Authority. Estrada and [Quintos] were arrested and their residences were searched. 

Estrada admitted that they had intended to steal Sanchez’s car and that he shot him. 

Galvan admitted that she had driven the car on the night of the shooting.” (Quintos I at 

p. 2.) 

On November 19, 2002, Quintos was charged in a second amended complaint with 

murder (Pen. Code, § 187; count 1),1two counts of attempted carjacking (§§ 215, 

subd. (a), 664; counts 2 & 3), and two counts of attempted second degree robbery 

(§§ 211, 664; counts 4 & 5). The complaint alleged in each count a gang allegation 

against Quintos (§ 186.22, subd. (b)(1)). The complaint also charged Estrada and Galvan 

with a number of crimes. 

On December 23, 2002, Quintos entered a no contest plea plea to one count of first 

degree murder (§ 187; count 1) and waived his right to trial by jury. The plea agreement 

1 Unspecified statutory references are to the Penal Code.
3

did not set out a factual basis for the plea and did not specify the theory of liability for 

Quintos’s murder conviction. The minute order for the change-of-plea hearing stated that 

the trial court found there was a factual basis for the plea, but it set out no facts and did 

not specifically reference any evidence. Prior to sentencing, the trial court conducted a 

bench trial and found true the gang enhancement. On April 24, 2003, the trial court 

sentenced Quintos on count 1 to a term of life imprisonment with a minimum of 25 years 

and on the gang enhancement to a term of 10 years, to be served consecutively to the 

term on count 1, for an aggregate sentence of 35 years to life with the possibility of 

parole. The trial court dismissed the remaining counts. 

Quintos appealed both the trial court’s true finding on the gang enhancement and 

the 10-year consecutive sentence imposed on it. (Quintos I at pp. 7, 11.) This court 

decided that substantial evidence supported the trial court’s true finding on the gang 

enhancement but agreed with Quintos that, because the trial court had imposed a life 

sentence on count 1, it could not impose a ten-year sentence on the enhancement. (Id. at 

p. 10.) This court ordered the 10-year gang enhancement stricken and a 15-year 

minimum parole eligibility imposed. (Id. at pp. 12–13.) On March 1, 2004, the trial 

court resentenced Quintos on count 1 to a term of 25 years to life imprisonment with the 

possibility of parole. 

On April 2, 2019, Quintos acting in propria persona, filed a petition for 

resentencing pursuant to section 1170.95 (petition) and attached this court’s opinion on 

his direct appeal. Quintos stated he “was charged not as the actual perpetrator of the 

shooting but rather as an aider and abettor to first degree felony murder along with codefendant Anthony Estrada, who admitted to shooting the victim [] during an attempted 

carjacking.” Quintos asserted he was charged by a complaint that allowed the 

prosecution to proceed under a theory of felony murder or murder under the natural and 

probable consequences doctrine, he was convicted of first degree murder by plea in lieu 

of a trial at which he could have been convicted of first degree murder, and he could not 
4

be convicted of first or second degree murder under current law. Quintos contended he 

was not the actual killer, did not aid and abet first degree murder with the intent to kill 

and was not a major participant who acted with reckless indifference to human life. He 

argued he was entitled to relief under section 1170.95 and requested resentencing. The 

trial court appointed counsel to represent Quintos. 

The district attorney opposed the petition. The district attorney acknowledged that 

the information against Quintos allowed the prosecution to proceed under a theory of 

felony murder or murder under the natural and probable consequences doctrine. The 

district attorney also stated there was “no dispute” that Quintos was not the actual killer 

and asserted “[t]he most logical theory of liability for [Quintos], on a murder charge, is 

felony murder.” Nevertheless, the district attorney argued that Quintos had failed to 

make a prima facie case under section 1170.95 because he was a major participant in the 

carjacking who acted with reckless indifference to human life.2 

In support of the opposition to Quintos’s petition, the district attorney attached the 

first amended complaint; Quintos’s plea agreement; this court’s opinion in Quintos I; the 

abstract of judgment; and Quintos’s probation report. 

Quintos filed a response to the district attorney’s opposition to his section 1170.95 

petition. Quintos argued that he had made a prima facie case for relief and requested the 

trial court to issue an order to show cause and conduct a hearing. Quintos argued the 

“issue” at that hearing would be whether he acted with reckless indifference to human 

life. 

On November 20, 2019, the trial court summarily denied Quintos’s petition, ruling 

that he had failed to make a prima facie showing for relief under section 1170.95. The 

2

In addition, the district attorney argued that Senate Bill No. 1437 (2017-2018 

Reg. Sess.) (Senate Bill 1437)—which added section 1170.95 and amended sections 188 

and 189 (Stats. 2018, ch. 1015)—is unconstitutional. The trial court did not reach this 

argument, and that issue is not before us on appeal.
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trial court described the question for the court as the application of the recent amendment 

to the felony murder rule and “whether or not the defendant acted with reckless 

indifference or disregard for human life in his participation in these events that led to the 

murder of the victim.” The trial court provided a summary of the facts in light of the 

legal standards set out in Tison v. Arizona (1987) 481 U.S. 137 and People v. Banks

(2015) 61 Cal.4th 788 (Banks). The trial court found that Quintos planned and 

participated in the robbery, was aware of the dangers of carjacking, and through his 

actions was “facilitating the crime and facilitating the death.” The court stated “Based on 

the facts of this case and the law that is currently in effect on felony murder, the Court 

respectfully declines to find that the petition[er] has made a prima facie showing that he’s 

entitled to re-sentencing.” 

Quintos timely appealed the trial court’s denial of his petition. 

On appeal, Quintos argues the trial court violated the procedural requirements of 

section 1170.95 when it summarily denied his petition. Quintos also contends the trial 

court violated his due process rights by relying on facts drawn from his probation report 

and from this court’s opinion from his direct appeal. The Attorney General has conceded 

that the trial court erred in summarily denying Quintos’s petition. For the reasons set 

forth below, we agree. 

II. DISCUSSION

A. Applicable Law

“ ‘Senate Bill 1437, which took effect on January 1, 2019, “addresses certain 

aspects of California law regarding felony murder and the natural and probable 

consequences doctrine[.]” [Citation.] Prior to Senate Bill 1437’s enactment, a person 

who knowingly aided and abetted a crime, the natural and probable consequence of 

which was murder or attempted murder, could be convicted of not only the target crime 

but also of the resulting murder or attempted murder. [Citations.] “This was true 

irrespective of whether the defendant harbored malice aforethought. ” ’ ” (People v. Soto
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(2020) 51 Cal.App.5th 1043, 1052 (Soto), review granted on other grounds Sept. 23, 

2020, S263939.)

“ ‘Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be convicted of 

murder, a principal must act with malice aforethought; malice can no longer ‘be imputed 

to a person based solely on [his or her] participation in a crime.’ [Citation.]” [Citation.] 

Senate Bill 1437 also amended section 189, which defines first and second degree 

murder, by, among other things, adding subdivision (e). Under that subdivision, a 

participant in enumerated crimes is liable under the felony-murder doctrine only if he or 

she was the actual killer; or, with the intent to kill, aided and abetted the actual killer in 

commission of first degree murder; or was a major participant in the underlying felony 

and acted with reckless indifference to human life. [Citations.] Senate Bill 1437 thus 

ensures that murder liability is not imposed on a person who did not act with implied or 

express malice, was 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.’ ” (Soto, supra, 51 Cal.App.5th at p. 1053.)

Senate Bill 1437 also added section 1170.95, which states that “ ‘[a] person 

convicted of felony murder or murder under a natural and probable consequences theory 

may 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 when 

[specified] conditions apply.’ ” (Soto, supra, 51 Cal.App.5th at p. 1053; § 1170.95, 

subds. (a) & (d)(3).) 

Section 1170.95, subdivision (c) “provides ‘[t]he court shall review the petition 

and determine if the petitioner has made a prima facie showing that the petitioner falls 

within the provisions of this section. If the petitioner has requested counsel, the court 

shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a 

response . . . and the petitioner may file and serve a reply . . . . If the petitioner makes a 

prima facie showing that he or she is entitled to relief, the court shall issue an order to 
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show cause.’ ” (People v. Drayton (2020) 47 Cal.App.5th 965, 973–974 (Drayton).) 

Section 1170.95, subdivision (d) “describes the timing and standard of proof for the 

hearing the trial court must conduct if it issues an order to show cause and the parties 

have not stipulated to resentencing.” (Drayton, at p. 974.) At this hearing, “the burden 

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

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

B. Analysis

Quintos’s appeal involves a question of law—that is, whether the trial court had 

the authority to engage in independent factfinding when summarily denying his petition 

under section 1170.95, subdivision (c). That question is one of statutory interpretation, 

which we review de novo. (People v. Cooper (2020) 54 Cal.App.5th 106, 115.)

As this court has previously described, “when assessing the prima facie showing, 

the trial court should assume all facts stated in the section 1170.95 petition are true. 

[Citation.] The trial court should not evaluate the credibility of the petition’s assertions, 

but it need not credit factual assertions that are untrue as a matter of law—for example, a 

petitioner’s assertion that a particular conviction is eligible for relief where the crime is 

not listed in subdivision (a) of section 1170.95 as eligible for resentencing. Just as in 

habeas corpus, if the record ‘contain[s] facts refuting the allegations made in the 

petition . . . the court is justified in making a credibility determination adverse to the 

petitioner.’ [Citation.] However, this authority to make determinations without 

conducting an evidentiary hearing pursuant to section 1170.95, subd. (d) is limited to 

readily ascertainable facts from the record (such as the crime of conviction), rather than 

factfinding involving the weighing of evidence or the exercise of discretion (such as 

determining whether the petitioner showed reckless indifference to human life in the 

commission of the crime).” (Drayton, supra, 47 Cal.App.5th at p. 980.) A trial court 

may not evaluate and weigh the evidence under section 1170.95, subdivision (c). (See id. 

at p. 982.)
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Quintos’s petition asserted that he was charged in a complaint that allowed the 

prosecution to proceed under a theory of felony murder or murder under the natural and 

probable consequences doctrine, he was convicted of first degree murder by plea in lieu 

of a trial at which he could have been convicted of first degree murder, and he could not 

be convicted of first or second degree murder under current law. Quintos asserted that he 

was not the actual killer, did not aid and abet first degree murder with the intent to kill, 

and was not a major participant who acted with reckless indifference to human life. 

These assertions were sufficient to trigger the issuance of an order to show cause by the 

trial court unless readily ascertainable facts from the record established they were untrue 

as a matter of law. (§ 1170.95, subds. (a) & (c); Drayton, supra, 47 Cal.App.5th at 

p. 980.) 

Nothing in the record from Quintos’s conviction established, as a matter of law 

and without additional factfinding, that Quintos was a major participant in the underlying 

felony who acted with reckless indifference to human life. (§ 189, subd. (e).) In 

addition, Quintos committed his crimes under circumstances that, at least in theory, could 

trigger the application of the natural and probable consequences doctrine. (See Soto, 

supra, 51 Cal.App.5th at p. 1058 [“The natural and probable consequence doctrine . . . is 

a theory of liability by which an aider and abettor who intends to aid a less serious crime 

can be convicted of a greater crime.”].) Under the prosecution’s own theory of the case, 

Quintos played a more limited role in the victim’s death than did Estrada. The 

information and the underlying facts permit an inference that Quintos could have been 

aiding and abetting Estrada in several crimes—the natural and probable consequences of 

which were murder. Nothing in the record of his conviction refutes this possibility as a 

matter of law.

Instead of pointing to anything in Quintos’s record of conviction that established 

the theory of murder upon which he was convicted, or that established as a matter of law 

that Quintos was a major participant in the felony who acted with reckless indifference to 
9

human life, the district attorney instead argued that Quintos could now be convicted of 

murder based on facts drawn from the probation report. The district attorney by 

implication argued that the trial court could engage in this factfinding when assessing 

whether Quintos had made a prima facie case for relief under section 1170.95, 

subdivision (c). In its ruling, the trial court appears to have agreed with this reading of 

the statute. In denying Quintos’s petition, the trial court engaged in factfinding based 

upon its independent review of materials in the record. In particular, the trial court 

implicitly found that the facts established that Quintos was a major participant who acted 

with reckless indifference to human life. 

As this court has explained, however, the trial court did not have this authority. 

“At this stage of the petition review process, governed by section 1170.95(c), the trial 

court should not have engaged in this factfinding without first issuing an order to show 

cause and allowing the parties to present evidence at a hearing, as described in section 

1170.95, subdivision (d). Further, the Banks test, which governs the inquiry whether the 

defendant was a major participant in a felony necessarily requires the weighing of facts 

and drawing inferences. (Banks, supra, 61 Cal.4th at p. 803.) The question whether 

[Quintos] acted with reckless indifference is a similarly multifaceted inquiry. (See 

People v. Clark (2016) 63 Cal.4th 522, 622.) In making an assessment of the petitioner’s 

prima facie showing, the trial court should not have evaluated and weighed the evidence 

but instead should have accepted petitioner’s asserted facts as true.” (Drayton, supra, 47 

Cal.App.5th at p. 982, fns. omitted.) 

In light of the record here, the trial court erred in not issuing an order to show 

cause and conducting a hearing pursuant to section 1170.95, subdivision (d) at which the 

prosecution will bear the burden of proving, beyond a reasonable doubt, that Quintos is 

ineligible for resentencing. (§ 1170.95, subd. (d)(3).)

For these reasons, we reverse the trial court’s order denying the petition and 

remand with directions to issue an order to show cause under section 1170.95, 
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subdivision (c) and hold a hearing pursuant to section 1170.95, subdivision (d). We 

express no opinion about Quintos’s ultimate entitlement to relief following the hearing.

(§ 1170.95, subd. (d)(2).) In light of this conclusion, we need not address Quintos’s 

contentions that the trial court erred in relying on certain evidence drawn from the record 

when it summarily denied the petition.

III. DISPOSITION

The order denying Quintos’s petition to vacate his murder conviction and for 

resentencing is reversed. The matter is remanded to the superior court with directions to 

issue an order to show cause (Pen. Code, § 1170.95, subd. (c)) and hold a hearing to 

determine whether to vacate Quintos’s murder conviction and recall his sentence and 

resentence him. (Pen. Code, § 1170.95, subd. (d)).
______________________________________

Danner, J.

WE CONCUR:

____________________________________

Greenwood, P.J.

____________________________________

Grover, J.

H047591

People v. Quintos