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Filed 5/20/22 P. v. Maggio 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

SALVATORE CARMELO MAGGIO,

Defendant and Appellant.

C093577

(Super. Ct. No. 05F09789)

Defendant Salvatore Carmelo Maggio was found guilty of committing second 

degree murder in 2005. In 2019, defendant filed a petition for resentencing under Penal 

Code section 1170.951; the trial court denied defendant’s petition. On appeal, defendant 

contends the trial court improperly made factual determinations at the prima facie stage. 

Finding defendant ineligible as a matter of law, we affirm.

1 Undesignated statutory references are to the Penal Code.
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BACKGROUND

On October 26, 2005, defendant strangled and drowned Aaron Brooks. (People v. 

Maggio (Feb. 11, 2009, C055680) [nonpub. opn.] (Maggio).)2 Defendant told law 

enforcement he and Brooks got into a fight, ended up in a creek where defendant was 

able to push Brooks underwater, and “[w]hen Brooks was lying face down in the water, 

defendant let him go, realizing he was dead.” (Ibid.) Defendant was diagnosed with 

paranoid schizophrenia and presented a mental state defense. (Ibid.) The jury convicted 

defendant of second degree murder (§§ 187, 189) and defendant was sentenced to 15 

years to life. (Maggio, supra, C055680.) Defendant appealed arguing the jury was 

improperly instructed on imperfect self-defense and that he was incompetent to testify on 

his own behalf; we affirmed his conviction. (Ibid.)

On May 13, 2019, defendant filed a petition for resentencing under section 

1170.95. Defendant alleged he was “convicted of 2nd Degree murder pursuant to the 

Felony Murder Rule” and that he could not now be convicted of second degree murder 

because of changes made to sections 188 and 189 effective January 1, 2019. The People 

and defendant’s appointed counsel filed briefing on the petition.

On February 2, 2021, the trial court denied defendant’s petition by written order. 

The trial court noted it had read and considered “the briefings by the parties as well as the 

probation report, the jury instructions which were provided to the jury, and the 

unpublished decision of the Appellate Court,” adding “[h]aving presided over this case, I 

am familiar with its facts.” It then found “[n]either the felony murder rule or the natural 

and probable consequences doctrine [were] brought in front of the jury. Thus, the 

2 We granted defendant’s motion for judicial notice of our opinion affirming the 

judgment of conviction and sentence in defendant’s direct appeal. (Evid. Code, §§ 459, 

subd. (a) [“[t]he reviewing court may take judicial notice of any matter specified in 

Section 452”]; 452, subd. (d) [permitting a court to take judicial notice of records of “any 

court of this state”].)
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r[e]quirements of [Senate Bill No. 1437] (as codified in [section] 1170.95) do not apply 

to this defendant. [¶] Accordingly, defendant’s motion for relief is denied.”

DISCUSSION

Defendant argues the trial court committed prejudicial error when it engaged in 

improper fact finding at the prima facie stage by using its own recollections of the 

underlying case to find defendant ineligible for relief. We disagree.

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

January 1, 2019, 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).)

Senate Bill 1437 also authorized, by adding section 1170.95, an individual 

convicted of felony murder or murder based on the natural and probable consequences 

doctrine 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 because of 

Senate Bill 1437’s changes to the definition of the crime. (People v. Gentile (2020) 

10 Cal.5th 830, 843.)

Senate Bill No. 775 (2020-2021 Reg. Sess.), effective January 1, 2022, modified

section 1170.95 to now explicitly require appointment of counsel on receipt of a properly 

completed petition requesting counsel, and then: “[T]he prosecutor shall file and serve a 

response. The petitioner may file and serve a reply within 30 days after the prosecutor’s 

response is served. These deadlines shall be extended for good cause. After the parties 

have had an opportunity to submit briefings, the court shall hold a hearing to determine 

whether the petitioner has made a prima facie case for relief. If the petitioner makes a 

prima facie showing that the petitioner is entitled to relief, the court shall issue an order 

to show cause. If the court declines to make an order to show cause, it shall provide a 
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statement fully setting forth its reasons for doing so.” (§ 1170.95, subds. (b)(3), (c).)3 In 

deciding whether a prima facie case is made, a court may review the defendant’s record 

of conviction “to distinguish petitions with potential merit from those that are clearly 

meritless.” (People v. Lewis (2021) 11 Cal.5th 952, 971.) If a prima facie case is made

and the trial court issues an order to show cause, it then holds an evidentiary hearing to 

determine whether to vacate the conviction and recall the sentence. (§ 1170.95, subd. 

(d).)

The trial court properly reviewed the record of conviction, including the jury 

instructions, in assessing whether defendant established a prima facie case for relief. 

From this, the trial court found the jury for defendant’s trial was not instructed on felony 

murder or the natural and probable consequences doctrine. If this is the case, defendant 

could not be “ ‘[a] person convicted of felony murder or murder under a natural and 

probable consequences theory,’ and he is therefore ineligible for relief as a matter of 

law.” (People v. Daniel (2020) 57 Cal.App.5th 666, 677, fn. omitted, review granted 

Feb. 24, 2021, S266336, review dismissed Dec. 1, 2021.)

We do not have the jury instructions in the appellate record. But part of an 

appellant’s burden in showing error is to provide an adequate record from which the 

claimed error may be demonstrated; the failure to present such a record can be fatal to 

appellate contentions. (See People v. Mack (1986) 178 Cal.App.3d 1026, 1032 

[“Appellant has the burden of showing error by an adequate record and has failed to 

sustain his burden”].) Defendant also does not challenge on appeal the trial court’s 

conclusion on the jury instructions or otherwise assert the jury was instructed on either 

theory. Defendant has consequently waived any challenge to this ruling, and we must 

presume the trial court’s analysis of the jury instructions was correct. (People v. Braz

3 These ameliorative modifications to section 1170.95 apply retroactively to defendant 

because his case is not yet final. (People v. Porter (2022) 73 Cal.App.5th 644, 652.)
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(1998) 65 Cal.App.4th 425, 433-434.) Defendant is therefore ineligible as a matter of 

law because the jury was not instructed on either felony murder or the natural and 

probable consequences doctrine.

Defendant asserts the trial court engaged in improper fact finding by relying on the 

court’s own memory of the facts of the case. However, even assuming the passing 

mention in the court’s order indicated potential reliance on an improper factual analysis, 

this error would be harmless because of defendant’s ineligibility as a matter of law. 

Failures to properly follow section 1170.95 prima facie procedures are state law errors, so 

to establish prejudice, a petitioner must show that “ ‘ “it is reasonably probable that 

. . . his [or her] petition would not have been summarily denied” ’ ” absent the error. 

(People v. Lewis, supra, 11 Cal.5th at p. 974.) There could be no prejudice in the trial 

court’s possible factual determinations because this could not change how the jury was 

instructed. Same too for a lack of a hearing. Though not addressed by either party, 

Senate Bill 775 now obligates trial courts to hold a hearing before deciding whether a 

defendant has made a prima facie case for relief; this did not happen here. But there is no 

reasonable probability a hearing could have changed defendant’s ineligibility as a matter 

of law. Any error here was therefore harmless.
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DISPOSITION

The judgment (order) is affirmed.

 \s\ ,

BLEASE, Acting P. J.

We concur:

 \s\ ,

ROBIE, J.

 \s\ ,

DUARTE, J.