1

Filed 12/10/20 P. v. Santana CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RUBEN MARTIN SANTANA,

Defendant and Appellant.

C089049

(Super. Ct. Nos. 

LOD-CR-FE-2000-0000548 & 

LF005462A)

Defendant Ruben Martin Santana appeals the trial court’s order denying his 

petition for resentencing under Penal Code section 1170.95.1 Defendant argues the court 

erred by summarily denying his petition without first appointing counsel. The People 

concede the error, but argue it was harmless because the record of conviction shows 

defendant is ineligible for relief as a matter of law. Because we agree that defendant is 

1 Undesignated statutory references are to the Penal Code.
2

ineligible for relief as a matter of law, and that any error in failing to appoint counsel 

would be harmless under any standard, we affirm.

LEGAL BACKGROUND

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which became 

effective on January 1, 2019, was enacted to amend the felony-murder rule and the 

natural and probable consequences doctrine “to ensure that murder liability is not 

imposed on a person who [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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish this, the bill 

amended section 188, which defines malice, and section 189, which defines the degrees 

of murder. (People v. Anthony (2019) 32 Cal.App.5th 1102, 1148.)

As amended, section 188 now provides: “Except as stated in subdivision (e) of 

Section 189, in order to be convicted of murder, a principal in a crime shall act with 

malice aforethought. Malice shall not be imputed to a person based solely on his or her 

participation in a crime.” (§ 188, subd. (a)(3).) By requiring a showing of malice for 

murder (other than first degree felony murder), the statute eliminates vicarious murder 

liability for aiding and abetting a lesser offense under the natural and probable 

consequences doctrine. (§ 188.) The amendments did not, however, repeal the law 

imposing criminal liability for implied malice murder.

New section 189, subdivision (e) limits the circumstances under which a person 

may be convicted of first degree felony murder. (§ 189, subd. (e).) Before the enactment 

of Senate Bill 1437 (2017-2018 Reg. Sess.), a defendant who intended to commit a 

specified felony could be convicted of first degree murder for a killing committed in the 

perpetration of (or attempt to perpetrate) specified felonies, without further examination 

of his or her mental state. (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 

270, 275.) Amended section 189, subdivision (e) now provides: “A participant in the 

perpetration or attempted perpetration of a felony listed in subdivision (a) in which a 
3

death occurs is liable for murder only if one 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 . . . .” (§ 189, subd. (e).)

Senate Bill 1437 (2017-2018 Reg. Sess.) also established a procedure for qualified 

persons to seek retroactive relief based on these changes in the law. (Stats. 2018, ch. 

1015, § 4.) Under section 1170.95, subdivision (a), a person convicted of felony murder 

or murder under a natural and probable consequences theory may file a petition to vacate 

their conviction and obtain resentencing where specified conditions are met. (§ 1170.95, 

subd. (a).) The specified conditions are that “(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 Section 188 or 189 made effective 

January 1, 2019.” (§ 1170.95, subd. (a).)

The petitioner has the burden of making a prima facie showing that he or she is 

entitled to relief. (§ 1170.95, subd. (c).) If that burden is met, the court must issue an

order to show cause and hold a hearing to determine whether to vacate the murder 

conviction and resentence the petitioner on the remaining counts. (§ 1170.95, subds. (c), 

(d).) At any such hearing, the prosecution bears the burden of proving beyond a 

reasonable doubt that the defendant is ineligible for resentencing. (§ 1170.95, subds. 

(d)(3).) The prosecution and the petitioner may “rely on the record of conviction or offer 

new or additional evidence to meet their respective burdens.” (§ 1170.95, subd. (d)(3).)
4

FACTUAL AND PROCEDURAL BACKGROUND

On October 24, 2000, Johnny Moreno (Moreno) was killed in a gang-related 

drive-by shooting. Following the killing, an information was filed against defendant 

charging him with murder (§ 187; count 1), shooting at an occupied motor vehicle (§ 246;

counts 2 & 4), shooting at an inhabited dwelling (§ 246; count 3), possession of a firearm 

by a felon (former § 12021, subd. (a); counts 5 & 6), possession of ammunition by a felon 

(former § 12316, subd. (b)(1); count 7), and street terrorism (§ 186.22, subd. (a); count 

8). The information also included special circumstance allegations as well as firearm and 

gang enhancements. (§ 190.2. subd. (a)(21) & (22), former § 12022.53, subd. (d), former

§ 12022.55, former § 12022.5, subd. (a)(1), § 186.22, subd. (b)(1).) 

A. Preliminary hearing evidence

A preliminary hearing was held in April 2001. This summary of the facts is drawn 

from the preliminary hearing transcript.2 

Defendant, also known as “Cartoon,” is a member of the Sureño street gang. The 

victim, Moreno, is a member of the rival Norteño street gang. 

On October 24, 2000, defendant was walking down the street with his cousin and 

his cousin’s girlfriend when a white Chevrolet approached. The Chevrolet was occupied 

by three or four Norteño gang members, including Moreno. As the vehicle passed, 

defendant and Moreno made eye contact. Defendant recognized Moreno as someone 

who had caused him problems in the past. Moreno noticed defendant and remarked to 

the other occupants of the vehicle, “There’s that fool Cartoon.” The vehicle’s windows 

2

In both parties’ briefs, the facts underlying defendant’s conviction were taken 

from the probation officer’s presentence report. It is an open question whether a court 

may consider facts in a probation officer’s presentence report to determine a defendant’s 

eligibility for resentencing. (See, e.g., People v. Trujillo (2006) 40 Cal.4th 165, 178-180; 

People v. Burnes (2015) 242 Cal.App.4th 1452, 1458; People v. Banda (2018) 26 

Cal.App.5th 349, 357-359.) We need not decide that question here because we instead 

rely on the facts in the preliminary hearing transcript.
5

were rolled down and the two groups began yelling obscenities and pejorative terms at 

each other. One occupant of the vehicle yelled, “What the fuck are you guys doing in our 

neighborhood?” Defendant threw up his arms as if to say, “What are you going to do 

about it?” 

The driver of the Chevrolet stopped and Moreno and the other Norteños started to 

exit the vehicle. As they did so, defendant pulled out a large, silver revolver and pointed 

it at them. Defendant’s cousin saw defendant pull out the gun and told defendant to 

“hold back” and not to do anything he did not have to do. The cousin told defendant

there were “too many witnesses” and that defendant “might hit an innocent bystander.” 

Defendant told him to “quit worrying about his business.” 

Upon seeing defendant’s gun, the Norteños got back into the Chevrolet and started 

to drive away. As they were leaving, defendant fired two shots at or above their vehicle. 

A short time later, at another location, the driver of the Chevrolet stopped the 

vehicle, and Moreno and the others got out to check it for damage. As they were 

inspecting the vehicle, a green Mazda arrived at the scene. The Mazda was being driven 

by Mario Angulo (Angulo),3 another Sureño, and defendant was sitting in the front 

passenger seat. As the Mazda approached the white Chevrolet, witnesses described 

seeing defendant lean across the driver of the vehicle, point a silver gun out the driver’s 

window, and fire several shots at the Norteños standing by the vehicle. Shots fired from 

within the Mazda struck a house, a vehicle parked in front of the house, the white 

Chevrolet, which was parked in front of the house next door to the house that was struck, 

and Moreno. 

3 Angulo was convicted by a jury of first degree murder (§ 187, subd. (a)), shooting 

from a motor vehicle (§ 12034, subd. (d)), active participation in a criminal street gang 

(§ 186.22, subd. (a)), and possession of a firearm by a prohibited person (§ 12021, subd. 

(e)). (People v. Angulo (Mar. 13, 2008, C053070) [2008 Cal. App. Unpub. LEXIS 2119, 

at *1] [nonpub. opn.].)
6

Moreno died from a single gunshot wound to the chest. An autopsy performed on 

Moreno revealed a 0.9- to 1.0-centimeter perforation in his rib cage. Although not 

qualified as a gun or forensic expert, a peace officer testified that the perforation in 

Moreno’s rib cage was approximately the same diameter as a .38-caliber bullet. When 

defendant was arrested, he had a .38-caliber handgun, as well as .38-caliber cartridges, in 

his possession. 

During his booking interview, defendant admitted that he and Angulo were 

involved in Moreno’s shooting. Defendant told officers that Angulo had two guns, a .22-

caliber and .38-caliber, and that Angulo had fired the .22 and defendant had fired the .38. 

Defendant admitted that he fired the gun towards a group of people that included 

Moreno. Defendant did not, however, admit that he was trying to kill Moreno or any of 

the Norteños. Defendant claimed that he was just trying to scare them. 

At the end of the preliminary hearing, defense counsel argued that defendant 

should not be held to answer on the charge of first degree murder with special 

circumstances because it was “open to question” whether defendant fired the fatal shot. 

The People responded that defendant should be held to answer because he was liable 

either as the actual killer or as an aider and abettor.4 Specifically, the prosecutor stated, 

“Well, I’m sure the Court is well aware that to be a principal, therefore to be liable for the 

charges, not only does this apply to say the actual killer, but those are for aiding and 

abeting [sic]. [¶] And it’s quite clear from all of the circumstances at the very minimum, 

if not the actual killer, that [defendant] would be acting as an aider and abettor . . . .” 

Defendant was held to answer. 

4 There was no discussion of felony murder or the natural and probable 

consequences doctrine.
7

B. Plea and sentencing

On January 22, 2002, defendant pleaded no contest to one count of second degree 

murder (§ 187) with a gang enhancement (§ 186.22, subd. (b)(1)); two counts of 

possession of a firearm by a felon (former § 12021, subd. (a)); one count of possession of 

ammunition by a felon (former § 12316, subd. (b)(1)); and one count of street terrorism 

(§ 186.22, subd. (a)). Defendant also admitted it was a drive-by murder within the 

meaning of section 190, subdivision (d). 

In exchange for the plea, the People dismissed the remaining charges. Defendant 

stipulated that the transcript from his four-day preliminary hearing would provide the 

factual basis for the plea. The court sentenced defendant to an aggregate determinate 

term of five years, and an indeterminate term of 15 years to life for the murder conviction

plus five years for the gang enhancement. 

C. Postconviction petition for resentencing

In January 2019, following the enactment of Senate Bill 1437 (2017-2018 Reg. 

Sess.), defendant filed a petition for resentencing under section 1170.95. Using a 

preprinted form prepared by a cosponsor of the legislation (see People v. Verdugo (2020) 

44 Cal.App.5th 320, 324, review granted Mar. 18, 2020, S260493 (Verdugo)), defendant 

checked boxes stating that (1) a complaint or information was filed against him that 

allowed the prosecution to proceed under a theory of felony murder or murder under the 

natural and probable consequences doctrine; (2) he pleaded guilty or no contest to first or 

second degree murder in lieu of going to trial because he believed he could have been 

convicted of first or second degree murder at trial under the felony-murder rule or the 

natural and probable consequences doctrine; and (3) he could not now be convicted of 

first or second degree murder because of the changes made to sections 188 and 189. 

Defendant also checked boxes stating, in conclusory language, that he was not the actual 

killer, that he did not, with the intent to kill, aid or abet the actual killer, and that he was 
8

not a major participant in the felony acting with reckless indifference to human life.

5

 

Defendant also checked a box requesting appointment of counsel. 

The trial court summarily denied defendant’s section 1170.95 petition without 

appointing counsel.6 The court concluded that defendant was ineligible for relief under 

the statute as a matter of law because the evidence in the court’s file and defendant’s 

preliminary hearing transcript showed that defendant was the actual killer who “fired the 

fatal shot” that resulted in Moreno’s death. Further, even if defendant was not the actual 

killer, the court concluded that defendant, at minimum, aided or abetted with the intent to 

kill and/or was a major participant in the underlying felony who acted with reckless 

indifference to human life. Petitioner timely appealed the order denying his petition.7 

DISCUSSION

I

Summary Denial & Failure to Appoint Counsel

At issue in this case is when the right to counsel arises under section 1170.95, 

subdivision (c), which provides: “The 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 

5 Defendant identified no facts to support such conclusions. 

6 The trial court initially denied the petition by ex parte order issued on February 20, 

2019. Defendant filed a notice of appeal on March 13, 2019. Subsequently, the trial 

court issued a “corrected” statement of decision and order denying the petition on March 

20, 2019, which appears to be a verbatim copy of the one filed on February 20, but with 

slightly different formatting. In an order dated July 31, 2019, we agreed to construe 

defendant’s notice of appeal as encompassing the corrected order. Accordingly, our 

discussion focuses on the March 20 corrected order.

7 We assume, without deciding, that defendant may appeal the trial court’s denial of 

his petition without obtaining a certificate of probable cause. (People v. Stamps (2020) 9 

Cal.5th 685, 698.)
9

represent the petitioner. The prosecutor shall file and serve a response within 60 days of 

service of the petition and the petitioner may file and serve a reply within 30 days after 

the prosecutor response is served. . . . If the petitioner makes a prima facie showing that 

he or she is entitled to relief, the court shall issue an order to show cause.” (§ 1170.95, 

subd. (c).) The proper construction of section 1170.95 presents an issue of statutory 

interpretation, which we review de novo. (People v. Law (2020) 48 Cal.App.5th 811, 

819, review granted July 8, 2020, S262490 (Law).)

Defendant construes the relevant text to mean that when a petitioner files a facially 

sufficient petition with a request for counsel, the court must appoint counsel and entertain 

briefing before determining whether the petitioner has stated a prima facie case for relief. 

Because the trial court instead summarily denied his petition, without appointing counsel, 

defendant contends the court violated the statute.

8

Appellate courts are split on whether a trial court may summarily deny a

resentencing petition under section 1170.95 without first appointing counsel. Broadly, 

two lines of authority have developed. 

The majority view, represented by Verdugo, supra, 44 Cal.App.5th 320, review 

granted March 18, 2020, S260493, is that if “readily ascertainable” information in the 

court’s file or record of conviction establishes that the petitioner is ineligible for relief as

a matter of law, a trial court may deny the petition without appointing counsel. (Id. at pp. 

323, 329-330.) In Verdugo, the court inferred from the structure of the statute that it 

prescribes two separate prima facie reviews, “one made before [the appointment of 

counsel and before] any briefing to determine whether the petitioner . . . may be eligible 

for relief . . . and a second after briefing by both sides to determine whether the petitioner 

has made a prima facie showing he or she is entitled to relief.” (Verdugo, at p. 328, 

8 Defendant also argues, in the alternative, that the trial court’s summary denial 

deprived him of his constitutional rights to due process and to the assistance of counsel. 
10

review granted Mar. 18, 2020, S260493; accord, People v. Lewis (2020) 43 Cal.App.5th 

1128, 1140, review granted Mar. 18, 2020, S260598 (Lewis); People v. Cornelius (2020) 

44 Cal.App.5th 54, 57-58, review granted Mar. 18, 2020, S260410.) 

The Verdugo court held that the purpose of the first prima facie review is to decide 

whether the petitioner is ineligible for relief as a matter of law. (Verdugo, supra, 44 

Cal.App.5th at pp. 329-330, review granted Mar. 18, 2020, S260493.) In this way, trial 

courts “perform a substantive gatekeeping function, screening out clearly ineligible 

petitioners before devoting additional resources to the resentencing process” (id. at p. 

331), a concept that the court characterized as a “well-established part of the resentencing 

process under Propositions 36 and 47.” (Id. at p. 329.) Further, in performing this 

preliminary screening function, courts are not limited to the allegations of the petition; 

rather, they may review any “readily ascertainable” information in the court file or 

otherwise part of the record of conviction. (Verdugo, at p. 329; accord, Lewis, supra, 43 

Cal.App.5th at pp. 1137-1139, review granted Mar. 18, 2020, S260598.) Thus, if the 

record of conviction establishes as a matter of law that the petitioner is ineligible for 

relief, the trial court may deny the petition without appointing counsel or conducting 

further proceedings. (Verdugo, at pp. 329-330, 332-333; Lewis, at pp. 1139-1140; People 

v. Cornelius, supra, 44 Cal.App.5th at p. 58, review granted Mar. 18, 2020, S260410.) 

The minority view, represented by People v. Cooper (2020) 54 Cal.App.5th 106, 

review granted November 10, 2020, S264684, holds that the right to counsel attaches 

immediately upon the filing of a facially complete petition. (Id. at p. 109.) In Cooper, 

the Court of Appeal, First Appellate District, Division One, rejected the view that section 

1170.95, subdivision (c) requires two prima facie reviews and that the petitioner is 

entitled to counsel only during the second one. (Id. at pp. 118, 123.) While

acknowledging that the allegations of a petition may be contradicted by the record of 

conviction, the court concluded the Legislature intended prosecutors, not courts, to take 
11

the lead in identifying which petitioners are ineligible for relief as a matter of law. (Id. at 

pp. 122-123.)

The question of when in the process of reviewing a section 1170.95 petition the 

right to appointed counsel arises is now pending before our Supreme Court.

9 We need 

not reach that issue, however, because we agree with the People that even if the trial court 

erred by not appointing counsel, the error would be harmless. The record of conviction 

shows that defendant was ineligible for relief as a matter of law.

As a threshold matter, we reject defendant’s assertion that any error was structural 

and therefore reversible per se. A structural error is a “ ‘defect affecting the framework 

within which the trial proceeds, rather than simply an error in the trial process itself.’ ” 

(Johnson v. United States (1997) 520 U.S. 461, 468 [137 L.Ed.2d 718, 728]; People v. 

Anzalone (2013) 56 Cal.4th 545, 554.) It is an error that “ ‘ “transcends the criminal

process” ’ and ‘def[ies] analysis by “harmless-error” standards.’ ” (People v. Marshall

(1996) 13 Cal.4th 799, 851.) Courts have found structural errors only in very limited 

circumstances, such as total deprivation of counsel at trial or trial by a biased judge. 

(Anzalone, supra, 56 Cal.4th at p. 554.) We see nothing about the trial court’s alleged 

error which renders it fundamentally unfair or precludes meaningful appellate review of 

its prejudicial impact. Thus, we conclude that the claimed error is subject to a harmless 

error analysis. 

The parties dispute whether the trial court’s alleged error should be reviewed 

under the standard for federal constitutional errors set forth in Chapman v. California

(1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] or the less stringent standard set forth 

9 The Supreme Court has granted review to decide (1) whether trial courts may 

consider the record of conviction in determining whether a defendant has made a prima 

facie showing under section 1170.95, and (2) when in the process the right to appointed 

counsel arises. (See order granting review of Lewis, supra, 43 Cal.App.5th 1128, Mar. 

18, 2020, S260598.) 
12

in People v. Watson (1956) 46 Cal.2d 818, 836. The People appear to have the better 

argument. (People v. Epps (2001) 25 Cal.4th 19, 28-29 [denial of right that is “purely a 

creature of state statutory law” is subject to Watson]; In re Melvin A. (2000) 82 

Cal.App.4th 1243, 1252-1253 [violation of statutory right to counsel is properly reviewed 

under Watson]; People v. Johnson (2016) 1 Cal.App.5th 953, 968 [error related to 

resentencing petition under Proposition 47 reviewed under Watson]; cf. People v. 

Fryhaat (2019) 35 Cal.App.5th 969, 984.) But we would reach the same conclusion 

under either standard. (People v. Edwards (2020) 48 Cal.App.5th 666, 675, review 

granted July 8, 2020, S262481; Law, supra, 48 Cal.App.5th at p. 826, review granted July 

8, 2020, S262490.) The record conclusively establishes that defendant is ineligible for 

relief as a matter of law. Given the evidence, it is beyond a reasonable doubt that 

appointment of counsel could not have changed this. We reach this conclusion for two 

reasons.

First, by its terms, only “[a] person convicted of felony murder or murder under a 

natural and probable consequences theory” is eligible for relief under section 1170.95. 

(§ 1170.95, subd. (a).) Here, the transcripts from defendant’s preliminary hearing 

demonstrate that defendant was not convicted under a felony-murder or natural and 

probable consequences theory.

10

 Rather, he was convicted of second degree murder 

based on a theory of express or implied malice. 

Whether or not the evidence theoretically could have supported a conviction based 

on felony murder or the natural and probable consequences doctrine is beside the point, 

as there is nothing in the record to suggest the People intended to proceed on any theory 

other than defendant being liable for the murder as the actual killer or, at minimum, as a 

10 The facts in defendant’s preliminary hearing transcript provide the factual basis 

for his plea, and is part of the record of his conviction. (People v. Perez (2020) 54 

Cal.App.5th 896, 905 (Perez); People v. Sohal (1997) 53 Cal.App.4th 911, 915.)
13

direct aider and abettor who acted with intent to kill, as charged in the information. 

(People v. Thomas (1987) 43 Cal.3d 818, 829, fn. 5 [notice of charged offense given by 

the transcript of the preliminary hearing]; People v. Gurule (2002) 28 Cal.4th 557, 629 

[same].) There was no discussion of holding defendant liable under the felony-murder 

rule based on his participation in an underlying felony, or any discussion of a “target” 

offense that could serve as the basis of liability under the natural and probable 

consequences doctrine.

“If [defendant] had gone to trial, and the parties had presented no argument and 

the trial court had given no instructions regarding felony murder or murder under a 

natural and probable consequences theory, there is no question [defendant] would be 

unable to make a prima facie showing that he is entitled to relief under section 1170.95. 

[Citation.] [Defendant’s] murder conviction after a guilty plea should not be accorded 

less weight . . . .” (People v. Nguyen (2020) 53 Cal.App.5th 1154, 1167; see Perez, 

supra, 54 Cal.App.5th at p. 907 [defendant’s averments that he was not the actual killer 

inconsistent with record of conviction].)

Although defendant checked a box alleging that he agreed to the plea because he 

believed he could have been convicted under the felony-murder rule or the natural and 

probable consequences theory, we agree with our colleagues in other courts that a trial 

court is not required to accept assertions in a petition when the record refutes them. (See, 

e.g., People v. Nguyen, supra, 53 Cal.App.5th at pp. 1165-1166.) As the Lewis court 

aptly summarized: “ ‘It would be a gross misuse of judicial resources to require the 

issuance of an order to show cause or even appointment of counsel based solely on the 

allegations of the petition, which frequently are erroneous, when even a cursory review of 

the court file would show as a matter of law that the petitioner is not eligible for 
14

relief.’ ”

11

 (Lewis, supra, 43 Cal.App.5th at p. 1138, review granted Mar. 18, 2020, 

S260598.)

Second, even if we assumed for argument’s sake that defendant was convicted 

under the felony-murder rule or the natural and probable consequences doctrine, to be 

eligible for relief under section 1170.95, defendant must show that he could not be 

convicted of first or second degree murder after the changes made by Senate Bill 1437

(2017-2018 Reg. Sess.). (§ 1170.95, subd. (a)(3).) But even after Senate Bill 1437, a 

person is liable for murder if he or she was the actual killer, aided and abetted a murder 

with intent to kill, or was a major participant in the felony who acted with reckless 

indifference to human life. (§ 189, subd. (e).) Likewise, an aider and abettor is still 

liable for murder if he or she acted with implied malice, which does not require an intent 

to kill. (People v. Gonzalez (2012) 54 Cal.4th 643, 653 [“[m]alice is implied when a 

person willfully does an act, the natural and probable consequences of which are 

dangerous to human life, and the person knowingly acts with conscious disregard for the 

danger to life that the act poses”].) “One who directly aids and abets another who 

commits murder is thus liable for murder under the new law just as he or she was liable 

under the old law.” (Lewis, supra, 43 Cal.App.5th at p. 1135, review granted Mar. 18, 

20202, S260598.) 

11 Looking beyond the face of a petition is appropriate where, as here, the petitioner 

has failed to provide or discuss any of the specific facts pertaining to his or her 

conviction. (See People v. Gomez (2020) 52 Cal.App.5th 1, 16, review granted Oct. 14, 

2020, S264033.) A prima facie showing refers to those facts that will sustain a favorable 

decision if the factual allegations are taken as true. (People v. Johnson (2015) 242 

Cal.App.4th 1155, 1163; Lewis, supra, 43 Cal.App.5th at p. 1137, review granted Mar. 

18, 2020, S260598.) Conclusory allegations that the requirements of a statute have been 

satisfied, without any discussion of the specific facts or evidence at issue in the 

petitioner’s case, generally are insufficient to establish a prima facie showing for relief. 

(People v. Karis (1988) 46 Cal.3d 612, 656.)
15

Here, the record of conviction conclusively establishes that defendant was, at a

minimum, a major participant in the felony who acted with reckless indifference to 

human life. The evidence shows that after a confrontation with a rival gang, defendant 

and another member of his gang traveled to another location where they committed a 

drive-by shooting in retaliation for the other gang’s disrespect. Defendant admitted that 

he fired shots out of the vehicle’s window towards the rival gang members. Even if there 

were some lingering uncertainty about whether defendant was the actual killer, the record 

of conviction conclusively shows that defendant at least aided and abetted with implied 

malice and/or was a major participant in the felony acting with reckless indifference to 

human life. (See, e.g., People v. Taylor (2004) 32 Cal.4th 863, 868-869; People v. Moore

(2010) 187 Cal.App.4th 937, 941; People v. Banks (2015) 61 Cal.4th 788, 801-802; 

People v. Clark (2016) 63 Cal.4th 522, 614-615.)12 Thus, defendant could be convicted 

of murder even after the changes made by Senate Bill 1437 (2017-2018 Reg. Sess.).

12 We acknowledge and agree with those authorities holding that, when assessing a 

prima facie showing, trial courts generally should assume the facts stated in the petition 

are true and should decline to find a prima facie case only where the defendant is 

ineligible as a matter of law and there is no contested issue of fact or law. (People v. 

Tarkington (2020) 49 Cal.App.5th 892, 909, review granted Aug. 12, 2020, S263219; 

People v. Drayton (2020) 47 Cal.App.5th 965, 980-982; People v. Smith (2020) 49 

Cal.App.5th 85, 95-96, review granted July 22, 2020, S262835; cf. Law, supra, 48 

Cal.App.5th at p. 826, review granted July 8, 2020, S262490 [analyzing whether facts in 

record show defendant was major participant who acted with reckless indifference to 

human life]; People v. Garcia (2020) 57 Cal.App.5th 100, 116 [disagreeing with Drayton

that petitioner’s assertions must be conclusively refuted as matter of law].) Where 

opposing inferences are possible, trial courts should appoint counsel and permit briefing, 

and then, if petitioner’s entitlement to relief still remains unresolved, issue an order to 

show cause for an evidentiary hearing. But where, as here, the facts in the record of 

conviction support only one legitimate inference on an issue that establishes the petitioner 

is ineligible for relief as a matter of law, we conclude no purpose would be served by 

reversing an order denying a petition and remanding the matter for further proceedings. 

(See, e.g., Tarkington, supra, 49 Cal.App.5th at pp. 909-910, review granted Aug. 12, 

2020, S263219; Perez, supra, 54 Cal.App.5th at pp. 906-907.)
16

Accordingly, we conclude the trial court properly determined that defendant was

ineligible for resentencing because his conviction survives the changes made by Senate 

Bill 1437 (2017-2018 Reg. Sess.). Thus, any alleged error in failing to appoint counsel 

before denying the petition was harmless beyond a reasonable doubt.13

DISPOSITION

The trial court’s order denying defendant’s resentencing petition is affirmed.

 KRAUSE , J.

We concur:

 ROBIE , Acting P. J.

 DUARTE , J.

13 This conclusion renders it unnecessary for us to decide whether the trial court’s 

actions violated defendant’s Sixth Amendment right to the assistance of counsel and 

Fourteenth Amendment right to due process.