Filed 9/23/21 P. v. Fajardo CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

MARIA DEL CARMEN 

GRANADOS FAJARDO,

 Defendant and Appellant.

2d Crim. No. B301880

(Super. Ct. No. F491809)

(San Luis Obispo County)

Maria Del Carmen Granados Fajardo appeals an order 

denying her petition for resentencing filed under Penal Code 

section 1170.95 following her prior conviction of second degree 

murder.1 (§ 187, subd. (a).) The trial court did not issue an order 

to show cause for an evidentiary hearing. We conclude, among 

other things, that the trial court did not err by denying the 

petition. We affirm.

1 All statutory references are to the Penal Code.
2

FACTS

Victor Sanchez was Fajardo’s former boyfriend. In 2012, 

Fajardo asked David Hernandez to beat up Sanchez and she 

offered to pay him for this plan. Crystal Garner and Joseph 

Villareal became involved in this plot. They planned to break

Sanchez’s leg and injure his face. (People v. Fajardo (June 30, 

2016, B261612) [nonpub. opn.].)

Fajardo said she would not pay unless the assailants 

provided proof of the assault. The assailants planned to take 

Sanchez’s wallet and cell phone as proof.

Pursuant to the plan, Garner invited Sanchez to meet her 

at a bar. Sanchez accepted the invitation. Garner and Sanchez 

left the bar in Sanchez’s car, with Garner driving. Hernandez 

and Villareal followed in Hernandez’s car. Garner pulled off the 

road and Hernandez used his car to block Sanchez’s car. (People 

v. Fajardo, supra, B261612.)

Villareal got out of Hernandez’s car and hit the top of 

Sanchez’s car with a crowbar. Villareal screamed at Sanchez to 

get out of the car. He pulled Sanchez out of the car and struck 

him numerous times with the crowbar. Garner screamed for 

Villareal to get Sanchez’s wallet and cell phone. Sanchez tried to 

hand over his wallet, but Villareal continued to beat him. Garner 

saw a light moving in their direction. She took Sanchez’s wallet 

and cell phone, and she and Villareal got into Hernandez’s car 

and left Sanchez at the scene. (People v. Fajardo, supra, 

B261612.)

Hernandez drove to Fajardo’s house and delivered 

Sanchez’s wallet and cell phone. Fajardo gave Hernandez $6,000. 

Hernandez gave Villareal and Garner $1,000. 
3

About two weeks after the assault, Fajardo visited 

Hernandez at his house. She complained that the assault on 

Sanchez was inadequate because the agreement had been to 

break Sanchez’s leg. Fajardo offered Hernandez $25,000 to “take 

[Sanchez] out.” Hernandez hired three men to shoot Sanchez in 

the kneecap. Sanchez was shot and killed at his home. (People v. 

Fajardo, supra, B261612.) 

Fajardo was convicted by a jury of second degree murder 

(§ 187, subd. (a)), robbery (§ 211), and assault with a deadly 

weapon (§ 245, subd. (a)(1)). She was sentenced to an aggregate 

prison term of 21 years to life. On June 30, 2016, we affirmed the 

conviction. (People v. Fajardo, supra, B261612.)

On February 8, 2019, Fajardo filed a petition for 

resentencing under section 1170.95. She checked a box on the 

form petition that said, “I was convicted of 2nd degree murder 

under the natural and probable consequences doctrine or under 

the 2nd degree felony murder doctrine and I could not now be 

convicted of murder because of changes to Penal Code § 188, 

effective January 1, 2019.” She did not state any evidentiary 

facts or cite to any portions of the record.

The People filed an opposition claiming Fajardo did not fall 

within section 1170.95 because she was a major participant in 

the underlying felony and acted with reckless indifference to 

human life. She “abetted, counseled, [and] commanded” the 

actual killer and acted with malice. (Emphasis omitted.)

The trial court denied the petition and did not issue an 

order to show cause for an evidentiary hearing. It found,

“Fajardo was a principal in the commission of the crime. 

Consequently, I don’t believe that she would be entitled to relief 

under [section] 1170.95. I’m further making a finding that she 
4

was a principal that acted with malice aforethought based on the 

pleadings. So I am going to deny the petition.”

DISCUSSION

Denying the Section 1170.95 Petition

Fajardo and the People contend the trial court erred by 

prematurely denying her section 1170.95 petition without issuing 

an order to show cause and conducting an evidentiary hearing. 

We disagree.

The origin of section 1170.95 was the Governor’s signing of 

Senate Bill No. 1437 in 2018. Senate Bill No. 1437 “amend[s] 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 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), italics added; People v. 

Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417.)

A defendant convicted of murder may file a petition under 

section 1170.95 alleging he or she “could not be convicted of first 

or second degree murder” because of changes to the law required 

by Senate Bill No. 1437. (People v. Gutierrez-Salazar, supra, 38 

Cal.App.5th at p. 417.) “A trial court receiving a petition under 

section 1170.95 ‘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.’ (§ 1170.95, subd. (c).)” 

(Ibid.) “If the petitioner has made such a showing, the trial court 

‘shall issue an order to show cause.’ ” (Ibid.) The trial court must 

then hold a hearing to determine whether to vacate the murder 

conviction and resentence the petitioner. (Ibid.)
5

At that hearing the People’s burden of proof is to show the 

petitioner is ineligible for section 1170.95 relief. (§ 1170.95, subd. 

(d)(3).) “The prosecutor and the petitioner may rely on the record 

of conviction or offer new or additional evidence to meet their 

respective burdens.” (Ibid.)

There are two stages involved in a section 1170.95 petition. 

If a prima facie showing is made for relief in the first stage, the 

trial court proceeds to the second stage and issues an order to 

show cause and the case proceeds to an evidentiary hearing.

Where the prima facie showing is not made in the first stage, the 

court may deny the petition.

Many courts have held that where the petitioner is 

obviously ineligible for section 1170.95 relief, the trial court may 

summarily dismiss the petition. (People v. Cervantes (2020) 44 

Cal.App.5th 884, 887; People v. Verdugo (2020) 44 Cal.App.5th 

320, 329-330, review granted Mar. 18, 2020, S260493; People v. 

Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 

2020, S260410.)

Here the parties have not shown trial court error by the

decision not to issue an order to show cause for a second stage 

section 1170.95 evidentiary hearing.

Senate Bill No. 1437 did not change the law for the benefit 

of defendants convicted of murder who are major participants in 

the underlying felony who acted with reckless indifference to 

human life. (People v. Gutierrez-Salazar, supra, 38 Cal.App.5th

at pp. 416-417.) Defendants convicted of murder who are not the 

actual killers but whose actions show intent to kill the victim are 

not entitled to section 1170.95 relief. (People v. Cooper (2020) 54 

Cal.App.5th 106, 112-113, review granted Nov. 10, 2020,

S264684.) Defendants who commit a “murder for hire” by paying 
6

someone to kill a victim are also not eligible. (People v. Nguyen

(2020) 53 Cal.App.5th 1154, 1162; id. at p. 1167.)

A defendant convicted of murder under the natural and 

probable consequences doctrine must make a prima facie showing 

that he or she could not now be convicted of murder under 

current law in order to obtain section 1170.95 relief. (People v. 

Garcia (2020) 57 Cal.App.5th 100, 105, 114-115, review granted 

Feb. 10, 2021, S265692.)

Fajardo did not make a prima facie showing. The facts

cited in our appellate decision show that Fajardo solicited the 

crime that ultimately caused Sanchez’s death. She twice solicited 

and directed the violent assault on him. She acted with malice 

and was the major participant in this plan that resulted in his 

death. She acted with a reckless indifference to human life.

Without Fajardo’s plan, Sanchez would not have been the target 

of the crime that caused his death. It is undisputed that Fajardo

offered Hernandez $25,000 to “take [Sanchez] out.” (People v. 

Fajardo, supra, B261612.) The People in their opposition to the 

section 1170.95 petition cited to facts in the record to show she 

paid the murderers after they killed Sanchez.

Fajardo’s conduct falls outside the relief provisions in 

Senate Bill No. 1437. (People v. Gutierrez-Salazar, supra, 38 

Cal.App.5th at pp. 416-417; see also People v. Garcia, supra, 57 

Cal.App.5th at pp. 105, 114.)

The Garcia Decision

In People v. Garcia, the defendant was convicted of second 

degree murder in 1998 “under the natural and probable 

consequences doctrine.” (People v. Garcia, supra, 57 Cal.App.5th

at p. 105.) During a gang fight, Garcia told another gang 

member to stick the victim with a knife. That other gang 
7

member killed the victim. Garcia filed a section 1170.95 petition.

He alleged that 1) he did not act with intent to kill or abet the 

actual killer; 2) he was not a major participant in the murder; 3) 

he did not act with reckless indifference to human life; and 4) he 

could not presently be convicted of murder. The trial court 

denied his section 1170.95 petition on the ground that Garcia had 

failed to make a prima facie showing for the issuance of an order 

to show cause. We affirmed and held, “Appellant’s allegations 

conflict with the evidence presented at trial. As we shall explain, 

the Legislature surely did not intend that appellant would be 

entitled to an evidentiary hearing to retry the underlying 

criminal case against him.” (Garcia, at p. 105.)

We said, “Section 1170.95 clearly and unambiguously 

requires a prima facie showing that the petitioner ‘could not be 

convicted of . . . second degree murder because of changes to 

Section 188 . . . .’ ” (People v. Garcia, supra, 57 Cal.App.5th at 

p. 114.) “In view of the evidence that appellant directed [the 

actual killer] to ‘stick’ the victim with a knife, as a matter of law 

appellant could be convicted of second degree murder as a direct 

aider and abettor despite the changes to section 188.” (Ibid.)

“We affirm the order denying his petition.” (Id. at p. 105.)

Fajardo’s case is similar to Garcia. But Fajardo, in a more 

calculated and deliberate fashion, initiated the plan to attack the 

victim, and on more than one occasion offered money to solicit the 

attacks. Garcia asked an associate to use a knife; Fajardo paid 

associates to “take [the targeted victim] out.” Here, as in Garcia, 

Fajardo “could be convicted of second degree murder as a direct 

aider and abettor despite the changes” required by Senate Bill

No. 1437. (People v. Garcia, supra, 57 Cal.App.5th at p. 114.)
8

Other Factors

There are other relevant factors that support the finding 

that Fajardo was a major participant who acted with reckless 

indifference to human life. First, the plan to attack was Fajardo’s 

“brainchild.” (People v. Douglas (2020) 56 Cal.App.5th 1, 10.) 

Second, as the People note, Fajardo was the “ringleader.” “[A] 

ringleader is a major participant.” (People v. Williams (2015) 61 

Cal.4th 1244, 1281.) Her participation was significant because 

she both directed and paid to facilitate the attacks on her victim. 

Without her participation, there would not have been an attack 

on Sanchez. Third, the use of violence was not a surprise, but 

rather the intended result. (Douglas, at pp. 10-11.) Fajardo 

specifically hired people to “take [Sanchez] out.” 

Defendants convicted of murder may use various factors to 

support their claims for section 1170.95 relief when their 

participation involves “minor culpability.” For example, “the 

getaway driver who did not know how dangerous the plan was,” 

or “the robbery mastermind who took special steps to avoid

violence and gunplay.” (People v. Douglas, supra, 56 Cal.App.5th

at p. 9, italics added.) But such factors do not apply to Fajardo. 

She knew the plan because she created it, and she specifically 

took steps to cause violence to the victim.

In In re Scoggins (2020) 9 Cal.5th 667, our Supreme Court 

held there was no ground to find reckless indifference to human 

life in a case of a defendant who planned an unarmed assault and 

robbery where one of his associates at the crime scene 

unexpectedly used a gun and shot a victim to death. In making 

this determination, the court considered several factors. It noted 

the defendant did not “know that a gun would be used during the 

felony.” (Id. at p. 677.) He planned the assault and robbery of 
9

the victim “to be unarmed.” (Ibid.) The defendant had “no 

reason to suspect that his accomplices were armed.” (Id. at 

p. 679.) The defendant did not know his associates were likely to 

use lethal force. (Id. at p. 681.) These favorable Scoggins factors 

do not apply here. Fajardo paid money to “take [Sanchez] out.” 

When defendants plan crimes, a relevant factor is whether 

the plan has “a particularly high risk of violence.” (In re

McDowell (2020) 55 Cal.App.5th 999, 1013.) Here the plan 

involved more than the risk of violence, it required violence to be 

inflicted. Did the defendant take “efforts to minimize the risks of

the violence [during the felony]”? (People v. Clark (2016) 63 

Cal.4th 522, 621.) Here, the opposite. After the first attack,

Fajardo paid more money to increase the risk of violence for her 

victim.

A relevant question is whether the defendant was aware “of

particular dangers posed by the nature of the crime.” (People v. 

Banks (2015) 61 Cal.4th 788, 803.) Here the crime targeted a 

specific victim with violence and Fajardo’s direction to “take 

[him] out.” Other Banks factors are not favorable for Fajardo.

For example, what “awareness did the defendant have” regarding 

the “past experience or conduct of the other participants”? (Ibid.) 

Fajardo had used Hernandez for the specific purpose of violently 

attacking Sanchez on two occasions. Finally, “[w]hat did the 

defendant do after lethal force was used”? (Ibid.) Fajardo paid 

the murderers as required by her plan.

The Hearing on the Petition

The People claim the trial court erred by making its 

findings at a first stage hearing. They contend it should have 

waited until a second stage section 1170.95 hearing to make 
10

findings. But given the facts of this case, the distinction is 

meaningless.

This was technically a first stage section 1170.95 

proceeding because the trial court did not issue an order to show 

cause. But the nature of this proceeding had elements akin to a 

second stage evidentiary proceeding. The People’s opposition to 

the petition included a request for the court to take judicial notice

of the “charging document(s) and court record(s) contained in the 

court file.” They included citations to facts from the record of 

conviction and citations to the reporter’s transcript of the trial 

testimony. They cited to trial transcripts to show that after the 

killing Fajardo paid the murders who killed Sanchez. The People 

set forth a complete statement of facts from the record of 

conviction to support a murder conviction under current law. 

Fajardo’s counsel filed a 10-page brief in response. But 

there was no cite to evidence to contest the facts in the record of 

conviction. There was no showing that the facts cited by the 

People from the trial transcripts were incorrect. Instead, 

Fajardo’s counsel agreed that the facts the People cited from the 

record of conviction “set[] forth the factual summary of the case.”

(Italics added.) Because of that stipulation, Fajardo has not 

shown that the trial court lacked the authority to make its 

rulings given this undisputed factual record. 

At the hearing the trial court said, “I’ve also reviewed the 

unpublished opinion by the Second Appellate District, Division 

Six, filed on June 30th, 2016, regarding the facts that the Court 

relied upon in determining that the judgment would be affirmed.” 

Fajardo’s counsel stated, “I’m prepared to submit it” on the 

“pleadings and the record that the court has recited for the 

record.” (Italics added.) In his brief Fajardo’s counsel said the 
11

court may rely on the record of conviction and the appellate 

opinion is part of the “record of conviction.” At the hearing 

Fajardo’s counsel made no request to introduce evidence to 

respond to the People’s evidence, and he made no offer of proof.

(People v. Perez (2020) 54 Cal.App.5th 896, 907, review granted 

Dec. 9, 2020, S265254 [denial of petition upheld; defendant did 

not make an offer of proof of the evidence he could provide].) At 

the hearing Fajardo’s counsel did not cite any facts from the 

record of conviction, or otherwise, to make a prima facie showing 

for section 1170.95 relief.

The trial court could reasonably find that the People had 

met the same burden they would need to meet at a second stage 

hearing to show section 1170.95 ineligibility, the defense did not 

make a prima facie showing, and consequently holding another 

hearing would not change the result.

Moreover, the suggestion the trial court acted prematurely 

is refuted by the record which shows it was patient and afforded 

Fajardo an extensive opportunity to present her case. This was 

far from a summary proceeding. Fajardo filed her petition on 

February 8, 2019. The court held a hearing on Fajardo’s petition 

on February 26, 2019, and appointed counsel for her. The People

filed a motion to dismiss the petition on February 27, 2019,

where they raised the argument that Senate Bill No. 1437 was 

unconstitutional. 

The trial court held hearings on the constitutional issue on 

March 27, April 15, and April 29. After resolving the 

constitutional issue against the People, the court held a June 10 

hearing to set a briefing schedule on the merits of Fajardo’s 

petition. At a July 29 hearing, the court granted a request for a 

continuance sought by Fajardo’s counsel. At an August 26 
12

hearing, the court granted another continuance requested by 

Fajardo’s counsel. The hearing on the petition took place on 

September 18. More than seven months elapsed between the 

filing of the petition and the hearing. This gave Fajardo ample 

time to prepare for the September 18 hearing.

Other Issues

The parties suggest that Fajardo’s check mark on a 

conclusory allegation in her section 1170.95 petition form, by 

itself, was sufficient to require the issuance of an order to show 

cause for a second stage evidentiary hearing. They suggest the 

trial court may not look to the record of conviction. Our Supreme 

Court disagrees. (People v. Lewis (2021) 11 Cal.5th 952.)

The trial court may consider the record of conviction to 

determine whether the defendant “qualifies under the sentencing 

scheme at issue.” (People v. Woodell (1998) 17 Cal.4th 448, 457.)

In addition to stating the statutory requirements of a section

1170.95 petition, the defendant must also make a sufficient 

prima facie showing for relief. (Garcia, at p. 115.) That did not 

occur here. Moreover, the parties’ theory would undermine the

goal and operation of section 1170.95.

In interpreting a statutory scheme such as section 1170.95,

we must “consider the statute read as a whole” and “avoid an 

interpretation that would lead to absurd consequences.” (People 

v. Jenkins (1995) 10 Cal.4th 234, 246.) If simply checking a box 

on the section 1170.95 form petition automatically entitles the 

petitioner to a second stage evidentiary hearing, in every case 

there will be a second stage evidentiary hearing. The Legislature 

could not have intended that result. It would leave no role for a 

trial court to determine a prima facie case. It would mean the 

court could have the clerks check to see if a box was checked on 
13

the petition form, and then automatically schedule a second stage 

evidentiary hearing without the need of any judicial 

determination. Such a result would render the first stage of the 

section 1170.95 procedure to be meaningless.

In People v. Garcia, supra, 57 Cal.App.5th at page 118, we

held, “In determining whether a petitioner has made a prima 

facie showing of entitlement to relief under section 1170.95, the 

courts should not ignore the evidence in the record of conviction

that shows the petitioner is ineligible for relief.” We said, “[I]n 

determining whether the petitioner has made a prima facie 

showing of entitlement to relief, the court may consider the 

record of conviction.” (Id. at p. 111.) “ ‘A court of appeal opinion 

. . . is part of the appellant’s record of conviction.’ ” (Ibid.)

The dissent contends we are ignoring People v. Lewis. But 

in Lewis the court said, “The record of conviction will necessarily 

inform the trial court’s prima facie inquiry under section 1170.95, 

allowing the court to distinguish petitions with potential merit 

from those that are clearly meritless.” (People v. Lewis, supra, 11 

Cal.5th at p. 971, italics added.) There is a distinction between 

judicial fact-finding and a consideration of the facts in the record 

of conviction. The dissent conflates the two. The facts we cite 

from the record here are uncontradicted.

Some of the dissent’s analysis could apply to a typical 

section 1170.95 first stage case. But this is not the typical case. 

The dissent cites People v. Rivera (2021) 62 Cal.App.5th 217, 230,

review granted June 9, 2021, S268405, stating, “ ‘ “[A]bsent a 

record of conviction that conclusively establishes that the 

petitioner engaged in the requisite acts and had the requisite 

intent [for a murder conviction under current law], the trial court 

should not question [the petitioner’s] evidence” ’ in the first stage 
14

review.” (Italics added.) But, as shown by the record of this 

section 1170.95 proceeding, Fajardo did not present any evidence 

and the record of conviction conclusively established guilt based 

on uncontradicted and stipulated facts.

The dissent claims the trial court erred because this 

petition was denied without a second stage evidentiary hearing. 

But this assumes that Fajardo made the required prima facie 

showing for section 1170.95 relief. The unique procedural facts of 

this case resulted in an extended proceeding involving multiple 

hearings over several months and extensive briefing. Fajardo had 

seven months to gather evidence to prepare a prima facie showing 

for section 1170.95 relief. 

At the final section 1170.95 hearing, Fajardo’s counsel did 

not make an offer of proof, did not state defensive facts, did not 

make a prima facie showing, and did not object to the statement 

of facts the People relied on from the record of conviction. 

Instead, her counsel stipulated that those facts constituted the 

“factual summary of the case.” The trial court is not obligated to 

order a hearing to find facts to which the parties have stipulated.

Moreover, one of those uncontested facts, which the dissent 

fails to highlight, was that Fajardo paid the murderers after the 

murder. The dissent has not shown how the Legislature could 

have intended that a murder for hire could fall within any of the 

eligible categories for section 1170.95 relief. 

The dissent claims the substantial evidence standard 

articulated for section 1170.95 review in People v. Garcia, supra,

57 Cal.App.5th 100 is incorrect and only the Rivera standard 

should apply. But assuming arguendo that the dissent is correct, 

that would not change the result in this case. The issue here is 
15

not merely the presence of substantial evidence, it is the presence 

of a record of uncontradicted evidence.

DISPOSITION

The order denying the section 1170.95 petition is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

I concur:

YEGAN, J.
TANGEMAN, J., Dissenting:

I dissent. I agree with appellant and the Attorney General 

that the result reached by the majority is wrong. Where, as here, 

a petition is facially sufficient to set forth a petitioner’s 

entitlement to relief, the court “shall issue an order to show 

cause.” (Pen. Code,2 § 1170.95, subd. (c), italics added.) Our 

Supreme Court recently held that subdivision (c) means what it 

says—that “shall” imposes a mandatory duty. (People v. Lewis

(2021) 11 Cal.5th 952, 963 (Lewis).) But that wasn’t done here.

Appellant, with the assistance of counsel, properly 

completed her petition for resentencing. Nothing more was 

required at this first stage. Her petition being facially sufficient, 

appellant was not required to “state . . . evidentiary facts or cite 

to . . . portions of the record” in her petition, as suggested by the 

majority (maj. opn. ante, at p. 3). (Lewis, supra, 11 Cal.5th at p. 

971.) Instead, it was incumbent upon the trial court to issue an 

order to show cause.

The pleadings and jury instructions allowed the jury to 

return a guilty verdict against appellant under alternative 

theories of a direct aider and abettor to murder or pursuant to 

the natural and probable consequences doctrine. “Because the 

jury returned a general verdict, we cannot exclude the possibility 

that [appellant’s] jury found [appellant guilty of murder] based 

solely on a theory that [s]he aided and abetted [assault] and that 

[the victim’s] death occurred during the commission of that 

offense.” (People v. Secrease (2021) 63 Cal.App.5th 231, 246, 

review granted June 30, 2021, S268862; People v. Drayton (2020) 

47 Cal.App.5th 965, 968 (Drayton).) 

2 Undesignated statutory references are to the Penal Code. 
2

Accordingly, we cannot presume, as the majority does here, 

that appellant shared her confederates’ “murderous intent.” 

(Secrease, at p. 247.) Doing so without issuing an order to show 

cause and conducting an evidentiary hearing constitutes 

impermissible factfinding, which is strictly prohibited at the first 

stage review. (People v. Clayton (2021) 66 Cal.App.5th 145, 153 

(Clayton).) While the trial court may consider the underlying 

record of conviction, it must accept petitioner’s factual allegations 

as true unless the record affirmatively and unequivocally shows 

that petitioner is ineligible for relief. (Lewis, supra, 11 Cal.5th at 

pp. 970-972.) Most importantly here, “[i]n reviewing any part of 

the record of conviction [for purposes of determining eligibility], a 

trial court should not engage in ‘factfinding involving the 

weighing of evidence or the exercise of discretion.’ [Citation.]” 

(Id. at p. 972.)

Here, the record of conviction establishes only that 

appellant was found guilty of murder as a natural and probable 

consequence of her direction to (and payment for) others to 

commit a felonious assault on the victim. Under prior law, this 

was sufficient to support a murder conviction. (People v. Gentile

(2020) 10 Cal.5th 830, 847.) But Senate Bill No. 1437 (2017-2018 

Reg. Sess.) changed the law by abolishing this theory of 

culpability for a murder conviction. (Gentile, at p. 849.) Now, “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).) In other words, “Senate Bill 1437 bars a conviction for 

second degree murder under the natural and probable 

consequences theory.” (Gentile, at p. 839.) 
3

If a facially sufficient petition is filed, as was done here, our 

trial courts must ‘“take[] petitioner’s factual allegations as true 

and make[] a preliminary assessment regarding whether the 

petitioner would be entitled to relief if his or her allegations were 

proved. If so, the court must issue an order to show cause.”’ 

[Citations.]” (Lewis, supra, 11 Cal.5th at p. 971.) Thus, “‘absent 

a record of conviction that conclusively establishes that the 

petitioner engaged in the requisite acts and had the requisite 

intent [for a murder conviction under current law], the trial court 

should not question [the petitioner’s] evidence’” in the first stage 

review. (People v. Rivera (2021) 62 Cal.App.5th 217, 230, review 

granted June 9, 2021, S268405; Drayton, supra, 47 Cal.App.5th 

at p. 968.) But that is precisely what the trial court did here. 

The majority compounds this error when it concludes that 

appellant did not make a prima facie case because “substantial 

evidence supports a murder conviction based on a direct aiding 

and abetting theory” (citing People v. Garcia (2020) 57 

Cal.App.5th 100, 115, review granted Feb. 10, 2021, S265692). 

The proper test is not whether substantial evidence exists in the 

record such “that a rational jury could still find the defendant 

guilty of murder on a still-valid theory” (People v. Fortman (2021) 

64 Cal.App.5th 217, 224, review granted July 21, 2021, S269228), 

but rather whether the record of conviction “‘conclusively 

establishes that the petitioner engaged in the requisite acts and 

had the requisite intent’” for murder culpability under current 

law. (Rivera, at p. 230.)3

3 In this regard, I “join the growing chorus that requires an 

independent finding by the trial court.” (Fortman, supra, 64 

Cal.App.5th at p. 221.)
4

Here, both parties acknowledge that appellant’s petition 

“satisfied the requirements of section 1170.95 . . . and stated a 

prima facie case for relief.” (Clayton, supra, 66 Cal.App.5th at 

p. 154.) They further acknowledge that “[t]he record does not 

establish ineligibility as a matter of law, and the [trial] court 

should have issued an order to show cause and followed the 

procedures mandated by section 1170.95, subdivision (d). 

Instead, the court engaged in judicial factfinding based on its 

analysis of the evidence.” (Ibid.) This was error, as both parties 

correctly agree. (Ibid.) 

Instead of recognizing this clear error, the majority itself 

engages in factfinding on appeal, relying upon evidence that 

appellant paid others to “take [the victim] out” as indisputable 

proof that she intended that her victim be killed. It also 

acknowledges that in response to appellant’s express instruction 

to “take [him] out,” her confederate hired three men “to shoot [the 

victim] in the kneecap.” (Maj. opn. ante, at p. 3.) Although these 

pieces of evidence support inconsistent conclusions about 

appellant’s true intent, the majority engages in its own 

factfinding (which we as a reviewing court are prohibited from 

doing) to conclude that the evidence of her statement (“to take 

[him] out”) outweighs the evidence of the actual plan (to 

“kneecap” the victim). This weighing of evidence on appeal is 

improper; it is an elementary principle of appellate practice that 

we do not weigh the evidence or make factual findings as a 

reviewing court.

Finally, I disagree with the majority’s statements that, 

while “[t]his was technically a first stage” review, the “nature of 

this proceeding had elements akin to a second stage evidentiary 

proceeding” (maj. opn ante, p. 10). One need look no further than 
5

the trial court’s ruling, which found appellant ineligible as “a 

principal that acted with malice aforethought based on the 

pleadings” (italics added), to confirm that appellant has not yet 

had the evidentiary hearing required by law.

Because the record of conviction does not “conclusively 

establish[]” that appellant was convicted of murder-for-hire, she 

is entitled to an evidentiary hearing. I would therefore reverse 

and remand for such a hearing, as both parties to this appeal 

request.

NOT TO BE PUBLISHED. 

TANGEMAN, J.
Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Adrian K. Panton, 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, Idan Ivri and J. Michael Lehmann, Deputy 

Attorneys General, for Plaintiff and Respondent.