Filed 12/17/20 P. v. Baeza CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

GUSTAVO BAEZA,

Defendant and Appellant.

 B303344

 (Los Angeles County

 Super. Ct. No. BA170804)

APPEAL from an order of the Superior Court of Los 

Angeles County, Larry P. Fidler, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Charles S. Lee and Nima Razfar, Deputy 

Attorney Generals for Plaintiff and Respondent.

_________________
2

Gustavo Baeza appeals from a postjudgment order 

summarily denying his petition for resentencing under Penal 

Code section 1170.951 as to his prior conviction of second degree 

murder. Because the jury was not instructed on felony murder or 

the natural and probable consequences doctrine, Baeza was not 

eligible for relief. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Killing

We described the killing of Tommy Walker in our prior 

opinion in People v. Baeza (Mar. 19, 2001, B129838) [nonpub. 

opn.] (Baeza I): “[Bryant] Royal testified at trial that he was 

standing in his front yard with his friends Walker, Derrick 

Hudson, and Jose Nava when a car drove up. Royal did not see

the car because he was tying his shoes. Hudson said, ‘Run!’ so 

Royal ran. Royal heard 15 or 16 gunshots, four of which struck 

Walker. [¶] Less than an hour after the shooting, Royal told 

Officer Roca that the gunman had a blue steel handgun and 

might be a member of the Loco Park gang. [¶] At the police 

station, Royal spoke to Detective Williams and wrote a statement 

in which he said that Walker was shot by the driver of a newlooking gold or tan truck that stopped in front of Royal’s house. 

Royal wrote that the driver was ‘Big Grumpy,’ a Loco Park gang 

member whom he recognized from the neighborhood and a prior 

hostile confrontation. Royal described the shooter as Latino, six 

feet three inches tall, and weighing 220 to 230 pounds. There 

were two other Latino men in the truck.” The parties stipulated 

1 All statutory references are to the Penal Code.
3

that Baeza was five feet 11 inches and weighed 230 pounds at the 

time of his arrest. (Baeza I, supra, B129838.)

Royal initially testified at trial he told Detective Williams 

the truth, which the detective wrote down and Royal signed, but 

Royal later testified his written statement reflected what 

Detective Williams told him to write. Detective Williams 

testified at trial she had no knowledge of the circumstances of the 

shooting other than that Royal was a witness, and she denied she 

told Royal what to write. At trial Detective Pirro testified he and 

his partner also interviewed Royal, who identified Baeza as the 

shooter and codefendants Ramon Castellanos and Israel Diaz as 

the passengers in the truck. Royal told Detective Pirro he had 

seen Baeza in the neighborhood about twice a week. A gang card

on file with the police department identified Baeza as “Grumpy.”

An audio recording of Detective Pirro’s interview of Royal was 

played for the jury. Royal testified at trial he had told Detective 

Pirro and his partner what he heard from Hudson, and he made 

up the rest. (Baeza I, supra, B129838.)

Two members of the Harpy gang, which was friendly with 

the Loco Park gang, were later apprehended with the handgun

that was used to kill Walker. Baeza, Castellanos, and Diaz had 

previously admitted they were members of the Loco Park gang, 

and Baeza had tattoos indicating his membership in the gang. 

(Baeza I, supra, B129838.)

Nava testified for the defense that he saw the shooting and 

Baeza, Castellanos, and Diaz were not involved. Jissel Flores, 

the wife of Castellanos, testified that around the time of the 

shooting, she saw three men in a gold truck drive by her home, 

which was about three blocks from Royal’s house. One of the 
4

men was her cousin, and none of the defendants was in the truck.

(Baeza I, supra, B129838.)

B. The Trial Court’s Jury Instructions, Baeza’s Conviction, 

and the Appeal

The trial court2instructed the jury with CALJIC No. 3.01 

on aider and abettor liability; CALJIC Nos. 8.10 and 8.11 on 

murder with malice aforethought and express and implied 

malice; and CALJIC Nos. 8.20 and 8.30 on first and second 

degree murder.3 The trial court did not instruct the jury on 

either felony murder or the natural and probable consequences 

2 Judge James M. Ideman. Judge Ideman had retired from 

the Los Angeles Superior Court by the time Baeza filed his 

petition for resentencing.

3 On September 9, 2020 the People filed a request for judicial 

notice asking this court to take judicial notice of the appellate 

record in Baeza I. We construed the request as a motion to 

augment the record on appeal, which we granted. The court’s 

instruction on aider and abettor liability (CALJIC No. 3.01) 

provided a person must act “with the intent or purpose of 

committing or encouraging or facilitating the commission of the 

crime . . . .” The court’s instruction on implied malice (CALJIC

No. 8.11) provided, “Malice is implied when: [¶] 1. The killing 

resulted from an intentional act; [¶] 2. The natural 

consequences of the act are dangerous to human life; and [¶]

3. The act was deliberately performed with knowledge of the 

danger to, and with conscious disregard for, human life.” The 

court’s instruction on second degree murder (CALJIC No. 8.30)

defined the crime as “the unlawful killing of a human being with 

malice aforethought when the perpetrator intended unlawfully to 

kill a human being but the evidence is insufficient to prove 

deliberation and premeditation.”
5

doctrine. The jury found Baeza guilty of second degree murder 

(§ 187, subd. (a)) and found true the allegations Baeza personally 

used a firearm (§ 12022.5, subd. (a)) and a principal was armed 

with a firearm (§§ 12022, subd. (a)(1)). The trial court sentenced 

Baeza to 19 years to life in prison (15 years to life for second 

degree murder and the middle term of four years for the personal 

use of a firearm).

On appeal, Baeza argued there was insufficient evidence to 

show he was involved in Walker’s murder; the trial court abused 

its discretion in admitting evidence of a prior shooting of Hudson; 

and Baeza was not brought to trial within the statutory deadline. 

We rejected Baeza’s arguments and affirmed. As to the 

sufficiency of the evidence, we concluded “there was ample 

evidence upon which the jury could find beyond a reasonable 

doubt that [Baeza] shot Walker.” (Baeza I, supra, B129838.)

C. Baeza’s Petition for Resentencing

On September 26, 2019 Baeza, representing himself, filed a 

form petition for resentencing and supporting declaration seeking 

to vacate his murder conviction and to be resentenced in 

accordance with recent statutory changes relating to accomplice 

liability for murder. In his petition, Carroll declared he “could 

not now be convicted of 1st or 2nd degree murder because of 

changes made to Penal Code §§ 188 and 189, effective January 1, 

2019”; he “was convicted of 2nd degree murder under the natural 

and probable consequences doctrine or under the 2nd degree 

felony murder doctrine and [he] could not now be convicted of 

murder because of changes to Penal Code § 188, effective 

January 1, 2019”; and “[t]here has been a prior determination by 

a court or jury that [he] was not a major participant and/or did 
6

not act with reckless indifference to human life . . . .” Baeza did 

not check the box indicating he “was not the actual killer.” Baeza

requested the court appoint an attorney for him.

In his supporting declaration, Baeza pointed to evidence he 

was not the shooter, including testimony at trial from Nava, 

Wheeler, Hudson, Beatrice Reynoso, and Estella Reynoso

“showing either that [Baeza] was not there at the scene, or the 

description of the shooter did not match [Baeza’s] at the time of 

the shooting.” Baeza attached the trial court’s instruction on 

express and implied malice and a letter from Hudson, who did 

not testify at trial, stating Baeza was not the killer.

On November 5, 2019 the superior court summarily denied 

Baeza’s petition for resentencing, explaining, “The jury heard 

evidence that the defendant was the actual shooter (this evidence 

was in a tape recorded interview played for the jury. The witness 

recan[t]ed his I.D. in front of the jury.) [¶] The court has 

conducted its prima facie review and finds that [Baeza] was 

found to be the actual shooter and is not eligible under [section] 

1170.95 . . . .”

Baeza timely appealed.

DISCUSSION

A. Senate Bill No. 1437

On September 30, 2018 Senate Bill No. 1437 (2017-2018 

Reg. Sess.) (Senate Bill 1437) was signed into law, effective 

January 1, 2019. 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 
7

with the intent to kill, or was not a major participant in the 

underlying felony who acted with reckless indifference to human 

life.” (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 1; see People v. 

Verdugo (2020) 44 Cal.App.5th 320, 325 (Verdugo), review 

granted Mar. 18, 2020, S260493; People v. Perez (2020) 

54 Cal.App.5th 896, 902 (Perez), review granted Dec. 9, 2020, 

S265254.)

New section 188, subdivision (a)(3), 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.” Senate Bill 1437 also added section 

189, subdivision (e), which provides, “A participant in the 

perpetration or attempted perpetration of a felony listed in 

subdivision (a) in which a 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, as described in subdivision (d) 

of Section 190.2.”

Senate Bill 1437 also provides a procedure in new section 

1170.95 for an individual convicted of felony murder or murder 

under a natural and probable consequences theory to petition the 

sentencing court to vacate the conviction and be resentenced on 

any remaining counts if he or she could not have been convicted 

of murder under Senate Bill 1437’s changes to sections 188 and 

189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4.) Section 1170.95, 
8

subdivision (b)(1), provides that the petition “shall be filed with 

the court that sentenced the petitioner.” The petition must 

include a declaration by the petitioner stating he or she is eligible 

for relief under the section, providing the superior court case 

number and year of the conviction, and indicating whether he or 

she requests the appointment of counsel. (§ 1170.95, subd. 

(b)(1).)

As we concluded in Verdugo, the Legislature intended for 

there to be a three-step evaluation of a section 1170.95 petition. 

(Verdugo, supra, 44 Cal.App.5th at pp. 328, 332-333; see Perez, 

supra, 54 Cal.App.5th at p. 903.) “If any of the required 

information is missing and cannot be readily ascertained by the 

court, ‘the court may deny the petition without prejudice to the 

filing of another petition and advise the petitioner that the 

matter cannot be considered without the missing information.’ 

(§ 1170.95, subd. (b)(2).) [¶] If the petition contains all required 

information, section 1170.95, subdivision (c), prescribes a twostep process for the court to determine if an order to show cause 

should issue: ‘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 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 show cause.’” 

(Verdugo, at p. 327; accord, Perez, at p. 903; People v. Nguyen

(2020) 53 Cal.App.5th 1154, 1165 (Nguyen) [§ 1170.95, subd. (c), 

provides for two prima facie reviews]; People v. Tarkington (2020) 

49 Cal.App.5th 892, 900-901, review granted Aug. 12, 2020, 
9

S263219 (Tarkington); People v. Torres (2020) 46 Cal.App.5th 

1168, 1177, review granted June 24, 2020, S262011 

[“subdivisions (b) and (c) of [section 1170.95] require the trial 

court to make three separate determinations”]; but see People v. 

Cooper (2020) 54 Cal.App.5th 106, 123, review granted Nov. 10, 

2020, S264684 [once the trial court determines the petition 

contains the required information, the court performs a single 

prima facie review, and if the defendant makes a prima facie 

showing of entitlement to relief, the court issues an order to show 

cause].)

“In determining whether the petitioner has made a prima 

facie showing that he or she is entitled to relief under section 

1170.95, subdivision (c), ‘[t]he 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 . . . .’” (Perez, supra, 54 Cal.App.5th at pp. 903-904, 

quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980; accord, 

Nguyen, supra, 53 Cal.App.5th at p. 1166.)
10

After issuing an order to show cause, the trial court must 

hold a hearing “to determine whether to vacate the murder 

conviction and to recall the sentence and resentence the 

petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).) If 

a hearing is held, “[t]he prosecutor 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); see 

People v. Lewis (2020) 43 Cal.App.5th 1128, review granted 

Mar. 18, 2020, S260598.)4 The prosecution has the burden of 

proving beyond a reasonable doubt the petitioner is ineligible for 

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

B. The Trial Court Did Not Err in Failing To Appoint Counsel 

Before Denying Baeza’s Petition for Resentencing

Baeza contends the trial court erred when it summarily 

denied his petition for resentencing without first appointing 

counsel because he made a prima facie showing in his petition 

that he falls within the provisions of section 1170.95. We agree 

with the People that Baeza was not eligible for relief because the 

jury was not instructed and therefore could not have convicted 

Baeza of either felony murder or murder under the natural and 

probable consequences doctrine.

4 The Supreme Court in People v. Lewis limited briefing and 

argument to the following issues: “(1) May superior courts 

consider the record of conviction in determining whether a 

defendant has made a prima facie showing of eligibility for relief 

under Penal Code section 1170.95? (2) When does the right to 

appointed counsel arise under Penal Code section 1170.95, 

subdivision (c)[?]” (Supreme Ct. Mins., Mar. 18, 2020, p. 364; 

People v. Lewis, supra, 43 Cal.App.5th 1128.)
11

As we explained in Verdugo, to determine whether the 

petitioner is eligible for relief (the first prima facie review), the 

court may examine “documents in the court file or otherwise part 

of the record of conviction that are readily ascertainable,” 

including “the complaint, information or indictment filed against 

the petitioner; the verdict form or factual basis documentation for 

a negotiated plea; and the abstract of judgment.” (Verdugo, 

supra, 44 Cal.App.5th at pp. 329-330.) We added, “The record of 

conviction might also include other information that establishes 

the petitioner is ineligible for relief as a matter of law because he 

or she was convicted on a ground that remains valid 

notwithstanding Senate Bill 1437’s amendments to sections 188 

and 189 (see § 1170.95, subd. (a)(3)).” (Id. at p. 330.) Further, 

“[a] court of appeal opinion, whether or not published, is part of 

the appellant’s record of conviction.” (Verdugo, at p. 333.) We 

review the superior court’s ruling that Baeza was ineligible for 

relief as a matter of law de novo. (People v. Murillo (2020) 

54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978; 

Perez, supra, 54 Cal.App.5th at p. 904.)

The jury instructions given by the trial court are part of the 

record of conviction. (People v. Soto (2020) 51 Cal.App.5th 1043, 

1055, review granted Sept. 23, 2020, S263939 (Soto); People v. 

Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8, 

2020, S262481.) Although the jury here was instructed on aider 

and abettor liability, it was not instructed on either felony 

murder or the natural and probable consequences doctrine. As 

the Court of Appeal in Soto concluded in affirming the trial 

court’s summary denial of the defendant’s section 1170.95 

petition, “[T]he jurors were not provided any instruction on which 

they could have found [the defendant] guilty of murder under 
12

[the natural and probable consequences] doctrine. Rather, under 

the instructions, the jury necessarily found Soto culpable for 

murder based on his own actions and mental state as a direct 

aider and abettor of murder.” (Soto, at p. 1055;

5 see Edwards, at

p. 675 [affirming summary denial of § 1170.95 petition where 

jury not instructed on felony murder or the natural and probable 

consequences doctrine].)

Here, in the absence of instructions on felony murder or the 

natural and probable consequences doctrine, the jury could have 

convicted Baeza as either the shooter or a direct aider and 

abettor of the shooter, but not, as suggested by Baeza, based on a 

theory of liability that is no longer valid following Senate Bill 

1437’s amendments to sections 188 and 189. We do not credit 

Baeza’s averments to the contrary that he is eligible for relief 

because he was convicted based on a theory of felony murder or 

the natural and probable consequences doctrine. (Perez, supra, 

54 Cal.App.5th at pp. 903-904; People v. Drayton, supra, 

47 Cal.App.5th at p. 980; Nguyen, supra, 53 Cal.App.5th at

p. 1166.) Although we concluded in Baeza I, supra, B129838 that 

“there was ample evidence upon which the jury could find beyond 

a reasonable doubt that [Baeza] shot Walker,” we need not 

5 The Soto court rejected the argument the reference to the 

“‘natural consequences’” of an intentional act in CALJIC No. 8.11 

on implied malice showed the defendant had been convicted of 

murder based on the natural and probable consequences doctrine, 

explaining, “The ‘natural consequences’ language in the 

instruction for second degree murder does not transform Soto’s 

conviction into one for murder under the natural and probable 

consequences doctrine within the meaning of section 1170.95.” 

(Soto, supra, 51 Cal.App.5th at p. 1059.)
13

determine that Baeza was the actual shooter for us to conclude 

he was ineligible for relief as a matter of law.6

Because Baeza failed to make the initial prima facie 

showing for relief under section 1170.95, subdivision (c), he was 

not entitled to appointed counsel or a hearing. (Tarkington, 

supra, 49 Cal.App.5th at pp. 901-902 [because the court 

summarily denied the petition at the first prima facie review 

stage, “the appointment of counsel was not statutorily required 

by section 1170.95”]; Verdugo, supra, 44 Cal.App.5th at pp. 332-

333 [“If, as here, the court concludes the petitioner has failed to 

make the initial prima facie showing required by subdivision (c), 

counsel need not be appointed.”]; People v. Lewis, supra, 

43 Cal.App.5th at p. 1140 [“Given the overall structure of the 

statute, we construe the requirement to appoint counsel as 

arising in accordance with the sequence of actions described in 

section 1170.95 subdivision (c); that is, after the court determines 

that the petitioner has made a prima facie showing that 

petitioner ‘falls within the provisions’ of the statute, and before 

the submission of written briefs and the court's determination 

whether petitioner has made ‘a prima facie showing that he or 

she is entitled to relief.’”].)

6 Although the superior court denied relief based on its 

finding Baeza was the actual shooter, we uphold the court’s 

ruling if supported by any legal theory. (People v. Smithey (1999) 

20 Cal.4th 936, 972.)
14

DISPOSITION

The order denying Baeza’s petition for resentencing under 

section 1170.95 is affirmed.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.