Filed 3/26/21 P. v. Sainz CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS HECTOR SAINZ,

Defendant and Appellant.

 D077858

 (Super. Ct. No. CR86492)

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

David M. Gill, Judge. Affirmed. 

Stephen M. Hinkle, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Julie L. Garland, Assistant Attorney General, Michael 

Pulos, Lynne G. McGinnis, and Britton B. Lacy, Deputy Attorneys General, 

for Plaintiff and Respondent.
2

In 1987, a jury convicted Carlos Hector Sainz of second degree murder 

(Pen. Code,1 § 187) and found that he used a firearm during the commission 

of the offense (§ 12022.5). He was sentenced to an indeterminate term of 17 

years to life in prison. 

Sainz appealed, and this court affirmed his conviction in an 

unpublished opinion. (People v. Sainz (Sep. 18, 1989, D007230) [nonpub. 

opn.] (Sainz).) 

In 2019, Sainz filed a petition for resentencing under newly enacted 

section 1170.95. By checking the boxes on the form, Sainz alleged he had 

been convicted of second degree murder on a theory of felony murder and on a 

theory of natural and probable consequences. Sainz alleged he could not now 

be convicted of the offense due to the modification of sections 188 and 189 

contained in Senate Bill No. 1437. 

The trial court appointed counsel and received briefing from both 

parties.2 After a review of the record of conviction and this court’s prior 

opinion, the trial court denied the petition. The court found from the record 

that Sainz was not prosecuted on either a felony murder theory or a theory of 

natural and probable consequences. The court found the record established

the undisputed fact that Sainz fired five shots into a crowd at a party and 

that he thereafter loaded the same gun and gave it to an accomplice who fired 

more shots at the crowd. It was undisputed the victim died as a result of 

being hit with a bullet from the gun. The court noted the facts established 

Sainz as the actual killer or that he provided the loaded gun to an accomplice 

1 All further statutory references are to the Penal Code.

2 The Attorney General filed a request for judicial notice of the record 

from the original trial that we considered in Sainz, supra, D007230. We have 

granted the request in a separate order filed February 11, 2021.
3

who fired more shots. Under either theory, Sainz was not eligible for relief 

under section 1170.95. The court held Sainz had failed to provide prima facie 

showing of eligibility. 

Sainz appeals, contending the court erred in summarily denying his 

petition. He argues the court erred in considering the record of conviction 

and the opinion of this court. We recognize our Supreme Court has a number 

of cases before it dealing with the process that must be followed in ruling on

petitions under section 1170.95. Pending further direction from the high 

court, we must endeavor to resolve the issues before us. On this record, we 

are satisfied the court correctly reviewed the record and, using readily 

ascertainable facts, properly determined Sainz had not presented a prima 

facie case. Thus, summary denial, without an order to show cause, was 

proper. We will affirm the denial.

STATEMENT OF FACTS

We recite the facts as they are contained in Sainz, supra, D007230 at 

pages 1 through 4. 

On February 13, 1987, Sainz, who was from Pasadena, was visiting 

Gerardo Vizcarra, who had moved from Pasadena to Chula Vista. Sainz and 

Vizcarra went to Mario Oceguara’s house in Chula Vista, where Sainz 

showed Oceguara, Vizcarra and Jose Cortez his gun, a dark .38 caliber fiveshot revolver. The revolver had been stolen a few days before from a car 

parked in El Monte, a city about five miles from Pasadena. 

Between 6:00 and 7:00 p.m., Sainz, Vizcarra, Oceguara and Cortez 

went to Daniel Gomez’s house and decided to drive to the house of Gomez’s 

girlfriend, Sonia Viragus. When they arrived, Viragus asked Gomez to drive 

her[ ] and her two girlfriends to a party. Gomez agreed. 
4

The group arrived at the party between 9:00 and 10:00 p.m. Gomez 

parked across the street. At Viragus’s request, the host, Dushaun Fairley, 

allowed the group to attend the party. About an hour after their arrival, an 

argument developed between Fairley’s friends and Sainz’s group [about] 

whether Sainz’s group should be charged for beer. The argument became 

heated and Fairley asked Sainz, Vizcarra, Oceguara, Cortez and Gomez to 

leave. As the group was leaving, someone threw a bottle toward Cortez and a 

fist fight developed near the gate to the Fairley residence between Cortez and 

three of Fairley’s guests—Juan Casasus, Paul Casasus and Ruben Aracio. 

Intending to involve himself in the fight, the victim, Tony Penalosa, stepped 

through the gate. Gomez, or someone else in Sainz’s group, yelled “Cap on 

them. Bust them” or words to that effect.3 Sainz began firing into the crowd. 

He fired about five shots. When Fairley’s guest Araico heard the first shot, 

he jumped aside and attempted to seek a safe haven in the back yard. He 

bumped into Penalosa, and off-balance, Araico fell. As Araico fell during the 

second gunshot, he saw Penalosa “coming back with his hands out in the air 

in front of him, and [fall] to the ground, straight back. And he landed with 

his hands on his forehead.” Another of Fairley’s guests, Salvador Almaraz, 

saw Penalosa “fly back, straight back” after the first or second shot. 

Vizcarrra testified he saw Penalosa on the ground after the third shot.

Penalosa died of a gunshot wound to the head. 

While firing his gun, Sainz backed down the driveway toward the street 

and attempted to reload the gun. Gomez and Oceguara had run to Gomez’s 

car. Vizcarra, seeking to assist Cortez, obtained the gun from Sainz and ran 

3 Fairley testified “cap on them” and “bust them” are slang terms 

meaning “shoot somebody.”
5

back up the driveway. Vizcarra testified he “ran up, started shooting in the 

air, trying to scare these guys off of Jose.”

Vizcarra, Cortez and Sainz ran to Gomez’s car and the group left the 

scene. In the car, Sainz said, “Yeah, I got him, Gerardo. I got him.” Vizcarra 

handed the gun to Sainz and urged him to “get rid of it.” Sainz answered,

“It’s going back to Dean Dena Land,” i.e., back to Pasadena. After stopping to 

buy beer, the group drove to Gomez’s house in Chula Vista. 

Vizcarra and Cortez, fearing the imminent arrival of the police, 

departed immediately. Sainz asked Gomez to hide the gun and attempted to 

hand it to Gomez. When Gomez refused, Sainz threw the gun to the floor and 

left. Gomez picked up the gun and hid it in the attic. 

Coming down from the attic, Gomez saw Sainz and Oceguara running 

away. He joined them and the three went to a neighbor’s house. While they 

watched a movie at the neighbor’s house, the police arrived at Gomez’s 

residence. The neighbor asked Gomez why the police were there. Gomez 

claimed not to know. Gomez went outside, approached the police, and 

identified himself as the resident of the premises. He was arrested. The 

police recovered the gun from Gomez’s attic. 

Originally, Gomez and Oceguara did not tell the police that Cortez and 

Vizcarra had been involved. At trial, Gomez, Oceguara and Vizcarra initially 

testified the only shooting had been done by Sainz but later took the stand 

and admitted Vizcarra also had the gun and fired some shots. 

In his defense, Sainz attempted to show he did not shoot at the crowd, 

but over their heads and that the bullet which killed Penalosa may have been 

deflected down before striking him or might have been fired by Vizcarra.
6

DISCUSSION

Sainz argues the court erred in looking beyond his form petition to 

determine if he had demonstrated a prima facie case for relief. We believe 

trial courts are not required to blindly accept the petitioner’s form allegations 

where there are readily ascertainable facts in the record which may, as they 

do in this case, demonstrate the allegations in the petition are simply not 

true.

A. Legal Principles

When a trial court receives a petition for relief under section 1170.95,4

the court must determine whether the petitioner has made a prima facie 

4 Section 1170.95 provides: 

(a) A person convicted of felony murder or murder under a natural and 

probable consequences theory may file a petition with the court that 

sentenced the petitioner to have the petitioner’s murder conviction vacated 

and to be resentenced on any remaining counts when all of the following 

conditions apply: [¶] (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. [¶] 

(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.

(b) [¶] (1) The petition shall be filed with the court that sentenced the 

petitioner and served by the petitioner on the district attorney, or on the 

agency that prosecuted the petitioner, and on the attorney who represented 

the petitioner in the trial court or on the public defender of the county where 

the petitioner was convicted. If the judge that originally sentenced the 

petitioner is not available to resentence the petitioner, the presiding judge 

shall designate another judge to rule on the petition. The petition shall 

include all of the following: [¶] (A) A declaration by the petitioner that he or 

she is eligible for relief under this section, based on all the requirements of 

subdivision (a). [¶] (B) The superior court case number and year of the 

petitioner’s conviction. [¶] (C) Whether the petitioner requests the 

appointment of counsel. [¶] (2) If any of the information required by this 
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subdivision is missing from the petition 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.

(c) 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 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. 

These deadlines shall be extended for good cause. 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.

(d) [¶] (1) Within 60 days after the order to show cause has issued, the 

court shall hold a hearing to determine whether to vacate the murder 

conviction and to recall the sentence and resentence the petitioner on any 

remaining counts in the same manner as if the petitioner had not been 

previously been sentenced, provided that the new sentence, if any, is not 

greater than the initial sentence. This deadline may be extended for good 

cause. [¶] (2) The parties may waive a resentencing hearing and stipulate 

that the petitioner is eligible to have his or her murder conviction vacated 

and for resentencing. If there was a prior finding by a court or jury that the 

petitioner did not act with reckless indifference to human life or was not a 

major participant in the felony, the court shall vacate the petitioner’s 

conviction and resentence the petitioner. [¶] (3) At the hearing to determine 

whether the petitioner is entitled to relief, the burden of proof shall be on the 

prosecution to prove, beyond a reasonable doubt, that the petitioner is 

ineligible for resentencing. If the prosecution fails to sustain its burden of 

proof, the prior conviction, and any allegations and enhancements attached to 

the conviction, shall be vacated and the petitioner shall be resentenced on the 

remaining charges. The prosecutor and the petitioner may rely on the record 

of conviction or offer new or additional evidence to meet their respective 

burdens.

(e) If petitioner is entitled to relief pursuant to this section, murder was 

charged generically, and the target offense was not charged, the petitioner’s 

conviction shall be redesignated as the target offense or underlying felony for 

resentencing purposes. Any applicable statute of limitations shall not be a 

bar to the court’s redesignation of the offense for this purpose.

(f) This section does not diminish or abrogate any rights or remedies 

otherwise available to the petitioner.
8

show of eligibility for relief. The court should appoint counsel and receive 

submissions from the People and from the petitioner. (People v. Drayton

(2020) 47 Cal.App.5th 965, 975-976 (Drayton); People v. Verdugo (2020) 44 

Cal.App.5th 320, 327-328 (Verdugo), review granted Mar. 18, 2020, S260493.)

In conducting its review, the court can consider the record of conviction 

and the opinion of the court of appeal, if there has been a prior appeal. The 

court may consider readily ascertainable facts from such record to determine 

if the petitioner has made the requisite prima facie showing. (Drayton, 

supra, 47 Cal.App.5th at pp. 979-980.) Where the readily ascertainable facts 

from the record of conviction establish, as a matter of law, that the petitioner 

is not eligible, the court may deny the petition without issuing an order to 

show cause. (Verdugo, supra, 44 Cal.App.5th at pp. 329-330; People v. Lewis

(2020) 43 Cal.App.5th 1128, 1136, review granted Mar. 18, 2020, S260598.)

B. Analysis

The records before the trial court demonstrate that Sainz was not 

prosecuted on a felony-murder theory or on a theory of natural and probable 

consequences arising from aiding and abetting another. The jury was not 

instructed on either theory. The case was prosecuted on the theory Sainz was 

an active participant in the actual killing. The undisputed facts in the record 

show Sainz brought a five-shot revolver to the party he attended. Following 

conflict with other party-goers, Sainz fired five shots at the crowd. He 

reloaded the gun and gave it to an accomplice who again fired into the crowd. 

It is undisputed that the victim was killed by a bullet from the gun 

fired by Sainz and his accomplice. The evidence pointed to Sainz as the 

(g) A person who is resentenced pursuant to this section shall be given 

credit for time served. The judge may order the petitioner to be subject to 

parole supervision for up to three years following the completion of the 

sentence.
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actual killer, but the defense claimed he fired over the heads of the crowd and 

that the accomplice must have fired the fatal round. However, as the trial 

court pointed out, Sainz is either the actual killer or the person who actively 

participated is the acts leading to death, and that he acted with disregard for 

human life.

Review of the record of conviction in this case does not require judicial 

factfinding. The court had before it the instructions and arguments given to 

the jury and well as the facts from this court’s prior opinion. The qualifying 

allegations in the form petition filed by Sainz are clearly not true. None of 

the modifications to the definitions of malice addressed in Senate Bill 

No. 1437 are implicated by the record of conviction in this case.

The trial court did not err in denying the petition without issuing an 

order to show cause.

DISPOSITION

The order denying appellant’s petition for resentencing under 

section 1170.95 is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

DATO, J.

DO, J.