Filed 11/4/22 P. v. Maraglino CA4/1

Opinion following transfer from Supreme Court 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DOROTHY GRACEMARIE 

MARAGLINO,

Defendant and Appellant.

 D077746

 (Super. Ct. No. SCN304686)

APPEAL from an order of the Superior Court of San Diego County, 

K. Michael Kirkman, Judge. Reversed and remanded with directions.

Robert L.S. Angres, under appointment by the Court of Appeal, for 

Defendant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, 

Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, 

Assistant Attorneys General, Eric A. Swenson, Allison V. Acosta, and 

Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.
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Dorothy Gracemarie Maraglino asked us to reverse the superior court’s 

denial of her request for resentencing under Penal Code1 section 1172.6.2 In 

an unpublished opinion filed June 24, 2021, we affirmed the superior court’s 

order. The Supreme Court granted review and deferred action pending its 

decision in People v. Strong (2022) 13 Cal.5th 698 (Strong). After the court 

issued its opinion in Strong, it transferred this matter to us on October 19, 

2022, with directions to vacate our previous opinion and reconsider the cause 

in light of Strong. (Cal. Rules of Court, rule 8.528(d).) We have followed the 

court’s directions and now issue a new opinion reversing the order and 

remanding the matter with directions.

On October 24, 2022, Maraglino submitted a supplemental brief (Cal. 

Rules of Court, rule 8.200(b)(1)), requesting we remand the matter and direct 

the superior court to issue an order to show cause within the meaning of 

section 1172.6, subdivision (c). 

On October 26, 2022, the Attorney General submitted a supplemental 

brief (Cal. Rules of Court, rule 8.200(b)(1)) agreeing that the matter should be 

remanded to the superior court for further proceedings.

We agree with the parties, and we vacate our previous decision and 

remand the matter for further proceedings.

DISCUSSION

In October 2015, a jury convicted Maraglino of first degree murder 

(§ 187, subd. (a)), kidnapping (§ 207, subd. (a)), torture (§ 206), and attempted 

sexual battery by restraint (§§ 243.4, subd. (a) & 664) following the death of 

1 Statutory references are to the Penal Code.

2 When Maraglino filed her petition, she sought relief under 

section 1170.95. Assembly Bill No. 200 (Stats. 2022, ch. 58, § 10) renumbered 

section 1170.95 to 1172.6, effective June 30, 2022.
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Brittany K. in April 2012. It also convicted Maraglino of a conspiracy to 

kidnap. (§ 182, subd. (a)(1).) The facts underlying the conviction can be 

found in our unpublished opinion People v. Maraglino (Dec. 29, 2017, 

D069297, D069609) (Maraglino).

Maraglino appealed the conviction, challenging the sufficiency of the 

evidence and the true findings on the kidnapping special circumstance, 

among other things. In December 2017, we issued our opinion and found 

insufficient evidence to support the convictions for torture and attempted 

sexual battery by restraint. However, we concluded substantial evidence 

supported the other convictions and special circumstance findings, and we 

affirmed those convictions. We discussed People v. Banks (2015) 61 Cal.4th 

788, 798 and People v. Clark (2016) 63 Cal.4th 522, 617 in our analysis of 

whether the jury could properly have found that Maraglino was a “major 

participant” who acted with “reckless indifference to human life.” (See 

Maraglino, supra, D069297, D069609.)

In 2019, Maraglino filed a petition for resentencing under 

section 1172.6, which permits a defendant convicted of murder under a 

felony-murder theory to petition for the conviction to be vacated and 

resentenced. (§ 1172.6, subd. (a).) Maraglino contended that she was not the 

actual killer, and she did not physically participate in the kidnapping. She 

also argued there was not sufficient evidence that she was a major 

participant who acted with reckless indifference to human life. The trial 

court denied her request, reading extensively from our opinion before 

concluding that Maraglino failed to make a prima facie case that she was 

entitled to relief under section 1172.6. We affirmed that order.

However, in August 2022, our Supreme Court issued its opinion in 

Strong. Strong holds that an after-the-fact court review of a pre-Banks and 
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Clark record does not account for all the differences in the law. The court

explained that prior findings “made to a beyond-a-reasonable-doubt degree of 

certainty,” were made “under outdated legal standards.” (Strong, supra, 13 

Cal.5th at p. 720.) “Section 1172.6 offers resentencing for petitions who have 

not been determined beyond a reasonable doubt to have the degree of 

culpability now required for a murder, attempted murder, or manslaughter 

conviction. Neither a jury’s pre-Banks and Clark findings nor a court’s later 

sufficiency of the evidence review amounts to the determination 

section 1172.6 requires, and neither set of findings supplies a basis to reject 

an otherwise adequate prima facie showing and deny issuance of an order to 

show cause.” (Ibid.) Thus, because Maraglino’s case was tried before the 

decision in Clark, the findings do not preclude her from making a prima facie 

case for resentencing under section 1172.6.
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DISPOSITION

The matter is remanded to the superior court with directions to issue 

an order to show cause, and to conduct an evidentiary hearing as required by 

statute. We express no opinion regarding the appropriate outcome.

HUFFMAN, Acting P. J.

WE CONCUR:

IRION, J.

BUCHANAN, J.