Filed 8/20/21 P. v. Giraldes CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LARRY GIRALDES, JR.,

Defendant and Appellant.

 H047471

 (Santa Clara County

 Super. Ct. No. 157274)

In the early 1990s, petitioner Larry Giraldes was tried for two murders on various 

theories, including deliberate and premeditated killing, lying in wait, direct aiding and 

abetting, and murder as a natural and probable consequence of a conspiracy to distribute 

drugs. He was convicted of two counts of first degree murder; those convictions were 

later reduced to second degree murder.

In 2018, Giraldes sought resentencing under Penal Code section 1170.95 on the 

theory that his murder convictions were based on a now-invalid theory of natural and 

probable consequences.1 The trial court denied Giraldes’s section 1170.95 petition for 

resentencing for failure to make a prima facie showing of entitlement to relief. On 

appeal, Giraldes contends, and the Attorney General concedes, that the trial court 

engaged in improper factfinding and should have issued an order to show cause and held 

an evidentiary hearing on the merits of the petition. The Santa Clara County District 

Attorney, as amicus curiae, contends that the trial court properly denied the petition, both

1 All further statutory citations are to the Penal Code unless otherwise indicated.
2

because of pleading deficiencies and because there is substantial evidence supporting a 

still-valid theory of murder. In response to our requests for supplemental briefing, the 

Attorney General agreed with the District Attorney that the petition contains pleading 

deficiencies.

We conclude that Giraldes failed to plead facts that, if true, would entitle him to 

relief. Because Giraldes failed to satisfy the section 1170.95 pleading burden, the trial 

court did not err in denying his petition. However, we modify the order to provide that 

the denial is without prejudice to the filing of a new petition. As so modified, we affirm.

I. BACKGROUND

A. Factual Summary2

In 1991, Guillermo Chavez ran a drug ring that sold high grade cocaine. 

Alexander Fry and Peter Jouron worked for Chavez, distributing cocaine and collecting 

drug debts. Giraldes sold drugs for Chavez. Willie Lee Shackelford acted as a runner for 

Giraldes. Shackelford also worked at a used car dealership partly owned by Kourosh 

Saghafian. Giraldes lived with brothers Rosario and Michael Grasso. Saghafian and the 

Grasso brothers were among Chavez’s customers.

Tension developed between Chavez and Fry and Jouron, in part because Chavez 

suspected that Fry and Jouron were diluting his cocaine. In October 1991, Chavez told 

his brother and another man that Fry and Jouron were planning to kill him and that he 

was going to kill them first.

Giraldes disliked Fry and Jouron and told Saghafian he wanted to get rid of them. 

Giraldes also told Saghafian that he was going to put mercury in Jouron’s drink.

2 We take the facts from our prior opinion in People v. Giraldes, et al. (June 22, 

1995, H011038) [nonpub. opn.], (case No. H011038), where they are set forth more fully. 

On our own motion, we take judicial notice of that prior opinion. (Evid. Code, §§ 452, 

subd. (d), 459.) We also take judicial notice of the record in Giraldes’s prior appeal 

(case No. H011038), as requested by the District Attorney. (Evid. Code, §§ 452, 

subd. (d), 459.)
3

In October 1991, Jouron, Giraldes, the Grasso brothers, and others stole a large 

collection of guns. Jouron and Fry delivered most of the stolen guns to Chavez on the 

evening of October 12.

On October 13, Giraldes, Shackelford, and the Grasso brothers removed guns from 

a friend’s residence.

At approximately 7:35 p.m. that night, San Jose police responded to reports of 

gunshots in the area of Alum Rock Park in San Jose. There, the police found Fry and 

Jouron shot to death in Fry’s pickup truck. Fry had suffered gunshot wounds from a 

.12-gauge shotgun and a 9-millimeter firearm. Jouron had two gunshot wounds, 

including one to the head, from a .45-caliber firearm as well as a gunshot wound from a 

9-millimeter firearm.

Early the following morning, Giraldes, Shackelford, and Rosario Grasso went to 

the home of John DeRose. Giraldes and Shackelford said they had “just killed” Fry and 

Jouron; Giraldes said they killed the victims because it was “better them than us.” 

Shackelford said that he drove, Rosario Grasso used one gun, and Michael Grasso used 

the other gun. Rosario Grasso said that he shot Jouron in the head. Shackelford later told 

Saghafian that Michael Grasso had shot Fry in the head with a shotgun and that Rosario 

Grasso had killed Jouron.

At trial, Giraldes testified that he witnessed the Grasso brothers shoot the victims.

B. Procedural History

Giraldes and Shackelford were tried jointly for the murders of Fry and Jouron. 

The jury was instructed on various theories of guilt for the murders, namely: deliberate 

and premeditated killing, lying in wait, direct aiding and abetting, and murder as a natural 

and probable consequence of a conspiracy to distribute drugs. Both Giraldes and 

Shackelford were convicted of two counts of first degree murder. Giraldes also was 

convicted of burglary, illegal possession of a gun by a felon, and conspiracy to escape by 

force and violence. The trial court sentenced Giraldes to two consecutive indeterminate 
4

terms of 25 years to life and to a determinate term of 12 years 4 months. This court 

affirmed Giraldes and Shackelford’s convictions in an opinion issued on June 22, 1995.

In 2014, the California Supreme Court held in People v. Chiu (2014) 59 Cal.4th 

155 (Chiu), superseded by statute as stated in People v. Lopez (2019) 38 Cal.App.5th 

1087, 1103, that a defendant cannot be convicted of first degree premeditated murder 

under the natural and probable consequences doctrine. On May 18, 2015, Giraldes filed a 

petition for writ of habeas corpus based on Chiu. The superior court granted that petition

in 2016, noting that it was not possible to determine whether the jury had convicted 

Giraldes of first degree murder based on a valid theory, such as direct aiding and 

abetting, or the now invalid natural and probable consequences theory. The superior 

court reduced Giraldes’s convictions to second degree murder and resentenced him to 

consecutive indeterminate terms of 15 years to life on those convictions.

In December 2018, Giraldes filed a petition for writ of habeas corpus seeking to 

have his murder convictions vacated pursuant to recently enacted Senate Bill No. 1437 

(2017-2018 Reg. Sess.) (Senate Bill 1437). In it, Giraldes asserted that he “was 

convicted on the now invalid natural and probable consequences doctrine . . . .”

With the assistance of counsel, Giraldes later filed what was styled as a

supplemental petition for resentencing under section 1170.95. In support of that 

supplemental petition, Giraldes declared that he is “eligible for relief under 

section 1170.95 because an information was filed against him that allowed the 

prosecution to proceed under a theory of felony murder or murder under the natural and 

[probable] consequences doctrine; he was convicted by jury of first degree murder, which 

was later reduced to a conviction of second degree murder; and he could not be convicted 

of first or second degree murder because of changes to . . . sections 188 or 189 made 

effective January 1, 2019.” The supplemental petition incorporated by reference the

habeas petition.
5

The prosecutor opposed the petition, arguing that Giraldes is ineligible for 

section 1170.95 relief because he is not someone who “could not be convicted of first or

second degree murder because of changes to [s]ection 188 or 189 made effective 

January 1, 2019.” (§ 1170.95, subd. (a)(3).) The prosecutor asserted that the record of 

conviction contains substantial evidence supporting Giraldes’s murder convictions on a 

direct aiding and abetting theory (as evidenced by the fact that the jury was instructed on 

that theory) and that the existence of such evidence means he cannot make the prima 

facie showing required by section 1170.95, subdivision (a)(3).3 The prosecutor also 

argued that a section 1170.95 petitioner is required to “prove his or her eligibility with 

independent and objective evidence, rather than by merely alleging that he or she falls 

within the provisions of . . . section 1170.95(a)(1-3).”

At a hearing on Giraldes’s petition, the trial court opined that Giraldes had made a 

prima facie showing that “a complaint was filed charging [him] with murder which could 

be prosecuted under a theory of natural and probable consequences or one of the now 

questioned forms of felony murder” (§ 1170.95, subd. (a)(1)) and that he “was convicted 

of murder on that charging document” (§ 1170.95., subd. (a)(2)). The court expressed the 

view that Giraldes had not set forth sufficient facts to make a prima facie showing that he 

could not be convicted of first or second degree murder because of changes to

section 188 or 189 (§ 1170.95, subd. (a)(3)) because he did not allege facts showing that 

“he could not be convicted under a theory of aiding and abetting with express malice.” In 

the court’s view, Giraldes needed to allege facts showing he could not be convicted under 

any of the theories of liability on which the jury was instructed at his trial. The court 

permitted Giraldes to amend his petition.

3 The prosecutor also argued below that Senate Bill 1437 is unconstitutional. This 

and other courts of appeal have since held that Senate Bill 1437 passes constitutional 

muster. (See, e.g., People v. Alaybue (2020) 51 Cal.App.5th 207; People v. Bucio (2020) 

48 Cal.App.5th 300, 311-312; People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th 

896.) This issue is not raised on appeal.
6

Giraldes filed a second supplemental petition. In it, he alleged what he had 

previously declared—that “an information was filed against him that allowed the 

prosecution to proceed under a theory of felony murder or murder under the natural and 

[probable] consequences doctrine which was reflected in the instructions; he was 

convicted by jury of first degree murder, which was later reduced to a conviction of 

second degree murder; and he could not be convicted of first or second degree murder 

because of changes to . . . sections 188 or 189 made effective January 1, 2019.” In an 

accompanying brief, Giraldes argued—based on the evidence presented at his trial—that 

he could not be convicted of murder under any theory but the now-invalid natural and

probable consequences theory. Specifically, he argued that he could not be convicted as 

the actual killer because the witnesses who implicated him as a shooter had credibility 

problems and because there was “evidence show[ing] Chavez and others working for him 

were present and could have been the gunman.” We understand this argument to be that 

there was reasonable doubt at his trial as to whether he could have been one of the killers. 

He further argued that he could not be convicted as a direct aider and abettor with intent 

to kill because, “[w]hile a few witnesses with serious credibility problems said petitioner 

expressed a plan or desire to kill Fry and Jouron, the weight of the evidence showed it 

was Chavez who had the motive to kill them and planned it without petitioner being 

present.”

The trial court denied the petition without issuing an order to show cause. The 

court noted that while Giraldes had both alleged and declared that he “could not be 

convicted of first or second degree murder because of changes to . . . sections 188 or 189 

made effective January 1, 2019,” he had “set[] forth no facts . . . in support of that 

assertion.” The court concluded that there was substantial evidence in the record to 

support murder convictions under a direct aiding and abetting theory; that such evidence 

means Giraldes could be convicted of first or second degree murder despite the recent 
7

changes to changes to section 188 or 189; and that, accordingly, he is ineligible for 

resentencing.

Giraldes timely appealed.

II. DISCUSSION

On appeal, Giraldes maintains that the trial court engaged in impermissible 

factfinding in concluding that he failed to make a prima facie showing of entitlement to 

section 1170.95 relief. The Attorney General concurs with that argument in his 

respondent’s brief. The Santa Clara District Attorney, as amicus, argues that the petition 

was properly denied for two independent reasons: the petition was inadequately pleaded 

and the existence of substantial evidence of direct aiding and abetting liability makes

Giraldes ineligible for section 1170.95 relief.

A. Legal Principles—Senate Bill 1437 and Section 1170.95

Prior to the enactment of Senate Bill 1437, “an aider and abettor [was not required

to] personally possess malice, express or implied, to be convicted of second degree

murder under a natural and probable consequences theory.” (People v. Gentile (2020) 10 

Cal.5th 830, 847 (Gentile).) Indeed, “ ‘the mens rea of the aider and abettor with respect

to [the nontarget] offense [was] irrelevant [because] culpability [was] imposed simply

because a reasonable person could have foreseen the commission of the nontarget crime.’ 

[Citation.]” (Chiu, supra, 59 Cal.4th at p. 164)

Senate Bill 1437 amended section 188 to provide that, outside the context of 

felony murder, “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.” (Stats. 2018, ch. 1015 § 2.) “The natural and probable 

consequences doctrine is incompatible with this requirement . . . .” (Gentile, supra, 10 

Cal.5th at p. 847.) Accordingly, our Supreme Court has concluded that “Senate Bill 1437

eliminates natural and probable consequences liability for murder regardless of degree.” 

(Id. at pp. 847-848.)
8

Senate Bill 1437 also enacted section 1170.95, subdivision (a), which provides: 

“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 [s]ection 188 or 189 

made effective January 1, 2019.” (Stats. 2018, ch. 1015 § 4.)

The petition is required to include: “(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. [And] [¶] (C) [w]hether the petitioner requests the appointment of counsel.” 

(§ 1170.95, subd. (b)(1).) “[U]pon the filing of a facially sufficient petition,” the statute 

“requir[es] that counsel be appointed.” (People v. Lewis (2021) 11 Cal.5th 952, 970

(Lewis).)

“[T]hen the court proceeds to subdivision (c) to assess whether the petitioner has 

made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra, 11

Cal.5th at p. 960.) Our Supreme Court recently held that section 1170.95, subdivision (c) 

“describ[es] only a single prima facie showing” (Lewis, supra, at p. 962) and that “a trial 

court can rely on the record of conviction in determining whether that single prima facie 

showing is made.” (Id. at p. 970.) “[T]he prima facie inquiry under subdivision (c) is 

limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the 

court takes petitioner’s factual allegations as true and makes a preliminary assessment 
9

regarding whether the petitioner would be entitled to relief if his or her factual allegations 

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

‘[A] court should not reject the petitioner’s factual allegations on credibility grounds 

without first conducting an evidentiary hearing.’ [Citations.] ‘However, if the record, 

including the court’s own documents, “contain[s] facts refuting the allegations made in 

the petition,” then “the court is justified in making a credibility determination adverse to 

the petitioner.” ’ [Citations.]” (Id. at p. 971; see People v. Drayton (2020) 47 

Cal.App.5th 965, 980 (Drayton), overruled on other grounds as stated in Lewis [“the trial 

court should assume all facts stated in the section 1170.95 petition are true” unless they 

are “untrue as a matter of law” or refuted by the record and may not engage in 

“factfinding involving the weighing of evidence or the exercise of discretion”].) “If, 

accepting the facts asserted in the petition as true, the petitioner would be entitled to relief 

because he or she has met the requirements of section 1170.95[, subdivision] (a), then the 

trial court should issue an order to show cause.” (Drayton, supra, at 980.)

The legal sufficiency of a pleading is a legal question subject to de novo 

review. (See People v. Perlas (2020) 47 Cal.App.5th 826, 832 [a demurrer to an 

accusatory pleading challenges the sufficiency of the pleading and raises an issue of law 

that is reviewed demurrer de novo].) We likewise review questions of statutory 

interpretation de novo. (People v. Prunty (2015) 62 Cal.4th 59, 71.)

B. Giraldes Failed to Meet His Section 1170.95 Pleading Burden

As noted above, the District Attorney maintains the petition was properly denied 

because Giraldes failed to meet his pleading burden. Specifically, the District Attorney 

argues Giraldes merely declared his eligibility without alleging facts supporting that 

conclusion. We requested that the parties file supplemental briefs addressing whether 

Giraldes satisfied his section 1170.95 pleading burden.4

4 The trial court did not deny the petition based on pleading deficiencies. 

However, the issue was adequately preserved for appellate review. At oral argument 
10

Giraldes responds that it is sufficient for a petition merely to parrot the 

requirements set forth in section 1170.95, subdivision (a) without supporting factual 

allegations. Giraldes further argues that, even if he was required to allege facts, he 

satisfied that burden because his second supplemental petition “explained, in detail, and 

with copious reference both to the trial record and to relevant statutory and case law, why 

he could not be convicted” of murder under any currently viable theory. He asserts that 

while the “factual recitations [in the second supplemental petition] are couched in terms 

of legal arguments rather than as express factual allegations, undeniably implicit in these 

arguments are that appellant was not the actual killer; he did not with intent to kill aid and 

abet the actual killers; and he neither was a major participant in the underlying felony nor 

acted with reckless indifference to human life.”

The Attorney General responds that Giraldes failed to allege “facts to support his 

claim that he could not now be convicted of second degree murder under a still viable 

theory, [such that he] failed to sustain his burden of making a prima facie showing of 

eligibility for relief under section 1170.95.”

1. Legal Principles—Pleading Requirements 

At the prima facie stage, the trial court accepts as true all facts stated in the 

section 1170.95 petition, so long as they are not untrue as a matter of law or disproved by 

the record. (Drayton, supra, 47 Cal.App.5th at p. 980; Lewis, supra, 11 Cal.5th at 

p. 971.) Generally, legal conclusions are insufficient to satisfy a pleading burden. 

(See People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall) [“To satisfy the initial burden 

of pleading adequate grounds for [habeas] relief, . . . ‘[c]onclusory allegations made 

below, the court questioned whether Giraldes had “set forth enough facts . . . to show that 

he could not be convicted now, because 188 and 189 have been changed.” After some 

discussion with Giraldes’s counsel, the court offered to permit Giraldes to amend his 

petition to make the requisite allegations. Thereafter, Giraldes filed his second 

supplemental petition. We have an obligation to address the pleading issue given that 

“ ‘we review the ruling, not the court’s reasoning and, if the ruling was correct on any

ground, we affirm.’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11.)
11

without any explanation of the basis for the allegations do not warrant relief, let alone an 

evidentiary hearing.’ ”]; Burke v. Superior Court of Sacramento County (1969) 71 Cal.2d 

276, 279, fn. 4 [“the general rule [is] that a complaint must contain only allegations of 

ultimate facts as opposed to allegations of evidentiary facts or of legal conclusions or 

arguments”].) Instead, the “rule which applies to all kinds of pleading, whether criminal

or civil,” is that “ ultimate facts are to be pleaded . . . .” (People v. Tinnen (1920) 49 

Cal.App. 18, 23 [addressing adequacy of allegations in an information]; People v.

Green (1924) 65 Cal.App. 234, 235-236 [“It is ordinarily sufficient to charge an offense 

in the language of the statute if the latter defines it or describes the acts constituting the 

offense . . . . [¶] [An] information [that] charges in the language of the statute . . . charges 

ultimate facts”]; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 

872 [“To survive a demurrer, the complaint need only allege facts sufficient to state a 

cause of action; each evidentiary fact that might eventually form part of the plaintiff’s 

proof need not be alleged”].) Ultimate facts are the elements of a crime and the elements 

of certain defenses, the existence of which is determined by the trier of fact from the 

existence of one or more evidentiary facts. (People v. Thompson (1980) 27 Cal.3d 303, 

315, fn. 13, disapproved of on other grounds as stated in People v. Scott (2011) 52

Cal.4th 452, 470-471; People v. McCall (2004) 32 Cal.4th 175, 182.)

Our colleagues in Division Two of the Second District Court of Appeal recently 

applied these principles to a section 1170.95 petition, holding that a petitioner fails to 

make the requisite prima facie showing of eligibility for relief where his or her petition 

alleges legal conclusions as opposed to facts. (People v. Nunez (2020) 57 Cal.App.5th 

78, 89 (Nunez), review granted Jan. 13, 2021, S265918.)5In compliance with the general 

rule governing pleadings in California, a section 1170.95 petition must allege ultimate 

facts that, if true, show entitlement to relief.

5 The Supreme Court has deferred further action in Nunez pending its decision in

Lewis.
12

2. Analysis

Section 1170.95 sets forth three conditions that must be satisfied by a petitioner 

seeking relief: “(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 [s]ection 188 or 189 made effective January 1, 2019.” 

(§ 1170.95, subd. (a).)

Giraldes alleged that “an information was filed against him that allowed the 

prosecution to proceed under a theory of felony murder or murder under the natural and 

[probable] consequences doctrine which was reflected in the instructions; he was 

convicted by jury of first degree murder, which was later reduced to a conviction of 

second degree murder”; he “was convicted on the now invalid natural and probable 

consequences doctrine”; “and he could not be convicted of first or second degree murder 

because of changes to . . . sections 188 or 189 made effective January 1, 2019.” The first 

three allegations—those regarding the charging document and conviction—are factual 

and satisfy the first two pleading requirements.6 (§ 1170.95, subds. (a)(1)-(2), (b)(1)(A).) 

The final allegation—that “he could not be convicted of first or second degree murder 

because of changes to . . . sections 188 or 189 made effective January 1, 2019”—is a 

legal conclusion. (Nunez, supra, 57 Cal.App.5th at pp. 88-89, review granted [describing 

6 The Attorney General mistakenly states that Giraldes “failed to specifically 

declare that he ‘was convicted of 2nd degree murder under the natural and probable 

consequences doctrine or under the 2nd degree felony murder doctrine[.]’ ” That 

allegation appeared in Giraldes’s original petition, which was incorporated by reference 

in his supplemental petitions.
13

assertion ‘that petitioner ‘could not now be convicted of 1st or 2nd degree murder 

because of changes made to . . . [sections] 188 and 189’ ” as a “legal conclusion”].)

Giraldes alleges no facts to support that legal conclusion. For example, he does 

not allege that he was “not the actual killer”; that he “did not, with the intent to kill, aid, 

abet, counsel, command, induce, solicit, request, or assist the actual killer in the 

commission of murder in the first degree”; that he “was not a major participant in the 

felony or . . . did not act with reckless indifference to human life during the course of the 

crime or felony”; or that “[t]he victim was not a peace officer in the performance of his 

or her duties.”7 Instead, in support of his second supplemental petition, Giraldes 

advanced legal arguments as to why a jury could not convict him of murder as the actual 

killer or a direct aider and abettor based on the evidence presented at trial and inferences 

drawn therefrom. He argues in his supplemental brief that those arguments satisfy his 

pleading requirement. They do not for three reasons. First, legal arguments, of course, 

are not facts. In the absence of factual allegations, the trial court cannot assess the prima 

facie showing in the manner prescribed in Lewis—that is, take the factual allegations 

stated in the section 1170.95 petition as true and determine whether, if true, the petitioner 

would be entitled to relief. (Lewis, supra, 11 Cal.5th at pp. 970-971.) Second, on a 

section 1170.95 petition, the question is not whether the People proved petitioner’s guilt 

of murder on a still-valid legal theory at trial. The question is whether the People could 

do so based not only on the record of conviction but on new or additional evidence. 

(§ 1170.95, subd. (d)(3).) Third, Giraldes’s arguments urged the trial court to make 

credibility determinations and weigh the trial evidence. For example, he argued that he 

could not be convicted as a direct aider and abettor with intent to kill because the 

witnesses that testified that he had expressed a desire to kill the victims had “serious 

7 These factual allegations appear on the pre-printed form petition commonly used 

by section 1170.95 petitioners and are sufficient to satisfy the section 1170.95 pleading 

burden.
14

credibility problems” and “the weight of the evidence showed it was Chavez who had the 

motive to kill them and planned it without petitioner being present.” The sort of 

evaluation and weighing of the evidence that Giraldes invited the trial court to engage in 

is precisely what this court held to be impermissible at the prima facie stage in Drayton. 

(Drayton, supra, 47 Cal.5th at p. 982.)

For all the foregoing reasons, we conclude that Giraldes failed to meet his 

section 1170.95 pleading burden. Accordingly, the trial court did not err in denying the 

petition.

That said, numerous considerations convince us that, on remand, Giraldes may file 

an amended petition. First, California courts have long adhered to the “policy that cases 

should be tried on their merits rather than dismissed for technical defects in pleading.” 

(Bloniarz v. Roloson (1969) 70 Cal.2d 143, 149; Denham v. Superior Court (1970) 2 

Cal.3d 557, 566 [noting the strength of the policy that “seeks to dispose of litigation on 

the merits rather than on procedural grounds”].) In furtherance of that policy, “liberal 

interpretation and amendment of pleadings is strongly favored . . . .” (Dieckmann v. 

Superior Court (1985) 175 Cal.App.3d 345, 352; Herrera v. Superior Court (1984) 158 

Cal.App.3d 255, 259 [“ ‘Great liberality is indulged in matters of amendment to the end 

that lawsuits may be determined upon their merits’ ”].) These “ ‘principles apply in the 

criminal context’ ” as well. (People v. Huerta (2016) 3 Cal.App.5th 539, 544 [stating, in 

dicta, that liberal amendment principles apply to Proposition 47 petitions].) For example, 

in a habeas corpus proceeding, “a court issuing an OSC retains the discretion to grant a 

party leave to amend” to cure “technical irregularities in the pleadings,” and [r]etention of 

this power is necessary to ensure that technical and inadvertent pleading errors do not 

lead to premature dismissals that would frustrate the ends of justice or require holding 

unnecessary evidentiary hearings that would squander scarce judicial resources.” 

(Duvall, supra, 9 Cal.4th at p. 482.)
15

Second, section 1170.95 expressly contemplates the denial of petitions containing 

pleading defects without prejudice to the filing of another petition. Specifically, 

subdivision (b)(2) permits the superior court to deny a petition without prejudice to the 

filing of another petition if the petition fails to include any 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.” (§ 1170.95, subd. (b).)

Third, no court had addressed the section 1170.95 pleading requirements at the 

time Giraldes filed his petitions. Therefore, he “is entitled to an opportunity to file a new

petition meeting the statutory requirements” as we have now articulated them. (People v.

Page (2017) 3 Cal.5th 1175, 1189 [Proposition 47 petitioner entitled to file a new petition 

where “the proper allocation of the burden of proof and the facts necessary to

resentencing on a Vehicle Code section 10851 conviction were not set out expressly in

the text of Proposition 47, and . . . had yet [to be] judicially articulated when defendant

submitted his petition for recall”].) Accordingly, we shall modify the order denying 

Giraldes’s petition to provide that the denial is without prejudice to the filing of a new 

petition.

C. Section 1170.95 Does Not Import the Substantial Evidence Standard

The trial court denied the petition based on an erroneous reading of 

section 1170.95 that the District Attorney endorses in his amicus brief. We explain the 

flaw in the court’s approach in an effort to provide guidance for any further proceedings 

in this matter.

The trial court reasoned that Giraldes cannot satisfy the third condition for 

section 1170.95 relief—that is, he is not a person who “could not be convicted of first or 

second degree murder because of changes to Section 188 or 189 made effective 
16

January 1, 2019” (§ 1170.95, subd. (a)(3))—because there is substantial evidence in the 

record of conviction to support his murder convictions on a theory of direct aiding and 

abetting. In other words, the trial court applied the substantial evidence standard to 

determine whether Giraldes had met his prima facie burden. Under the trial court’s 

approach, a section 1170.95 petition fails where substantial evidence exists in the record

of conviction supporting a hypothetical finding that the petitioner is guilty of murder 

under a currently valid theory. The finding is hypothetical because, as the trial court 

itself acknowledged in the context of Giraldes’s Chiu-based habeas, there is no way of 

knowing the theory on which the jury based its verdicts.

The trial court’s reading of section 1170.95, subdivision (a)(3) finds support in 

People v. Garcia (2020) 57 Cal.App.5th 100, 115, review granted February 10, 2021, 

S265692, which concluded that the petition at issue failed to make the requisite prima 

facie showing because “substantial evidence support[ed] a murder conviction based on a 

direct aiding and abetting theory . . . .” Garcia relied on People v. Duke (2020) 55

Cal.App.5th 113, 123, review granted January 13, 2021, S265309, which held that—at 

the evidentiary hearing phase—“the prosecution must . . . prove beyond a reasonable 

doubt that the defendant could still have been convicted of murder under the new law—in 

other words, that a reasonable jury could find the defendant guilty of murder with the 

requisite mental state for that degree of murder. This is essentially identical to the 

standard of substantial evidence . . . .”

However, this court disagreed with the view that the Legislature imported the 

substantial evidence standard into section 1170.95, subdivision (a)(3) in our decision in

People v. Lopez (2020) 56 Cal.App.5th 936, review granted February 10, 2021, S265974. 

Like Duke, Lopez addressed the prosecutor’s burden at the evidentiary hearing stage. We

held that the prosecutor bears the burden to prove beyond a reasonable doubt the 

elements of first or second degree murder under the current law. (Id. at p. 951.)
17

Division 7 of the Second District Court of Appeal reached the same conclusion in 

People v. Rodriguez (2020) 58 Cal.App.5th 227, 230-231, review granted March 10, 

2021, S266652. Rodriguez reasoned that the Legislature’s goal in enacting Senate 

Bill 1437—to “reform[ ] aider and abettor liability in homicide cases to more equitably

sentence both past and future offenders in relation to their own actions and subjective

mentes reae”—“is best effectuated by resentencing individuals convicted of first or

second degree murder under the natural and probable consequences doctrine or the felony

murder rule if the evidence, whether from the record of conviction alone or with new and

additional evidence introduced at the subdivision (d)(3) hearing, fails to establish beyond

a reasonable doubt they, in fact, acted during the crime with the now-required mental

state. To deny resentencing simply because a jury could have found that they may have

acted with express malice would frustrate the legislation’s purpose.” (Rodriguez, supra,

at pp. 240-241.) Rodriguez further reasoned that it “is unlikely the Legislature would 

have” required the prosecutor to prove ineligibility beyond a reasonable doubt (as 

section 1170.95, subdivision (d)(3) does) “if it had intended only an appellate-type 

review of the sufficiency of the evidence of the petitioner’s guilt on a still-viable theory, 

rather than requiring the prosecutor to actually establish the petitioner’s guilt under the 

newly amended statutes.” (Rodriguez, supra, at p. 242.) Moreover, Rodriguez noted

“[t]he improbability of such a legislative intent [in view of] subdivision (d)(3)’s provision 

authorizing both parties to introduce new or additional evidence at the hearing to 

determine whether the petitioner is ineligible for resentencing.” (Ibid.)

People v. Duchine (2021) 60 Cal.App.5th 798 likewise rejected Garcia and 

Duke’s reading of section 1170.95, subdivision (a)(3) as prescribing a substantial 

evidence standard of review. Duchine, like this case, concerned the petitioner’s burden at 

the prima facie stage. Duchine reasoned that “[t]he standard adopted by Garcia, in which 

the trial court focuses on the state of the existing record and applies an appellate review 

substantial evidence standard, makes little sense in th[e] context” of section 1170.95,
18

which allows for the introduction of new or additional evidence. (Duchine, supra, at 

p. 813.) Duchine further explained that “[t]he interpretation adopted by Garcia would 

mean the prosecution’s burden would be to prove ‘beyond a reasonable doubt’ that 

‘substantial evidence’ exists, which by itself borders on incomprehensible. The court 

would then employ these two widely divergent standards in a combined (and backwards) 

fashion to determine, as Garcia suggests, whether a jury hypothetically could have

found a defendant guilty under a permissible theory had it addressed the issue. In short,

the idea that the prosecution must prove beyond a reasonable doubt that there is

substantial evidence in a prior record to support a hypothetical finding of guilt on a

theory of murder that may never have been presented to a jury is beyond that border.” 

(Id. at p. 814.)

We find Duchine and Rodriguez to be persuasive and adhere to the statutory 

interpretation set forth in Lopez. Therefore, we conclude that it is error for a trial court to

apply a substantial evidence standard in assessing whether petitioner met his burden at 

the prima facie stage. (Cf. Lewis, supra, 11 Cal.5th at p. 971 [stating that “the prima 

facie inquiry . . . is limited” and that the trial court “ ‘ “takes petitioner’s factual 

allegations as true” ’ ” unless refuted by the record of conviction].)

III. DISPOSITION

The order denying Giraldes’s petition is modified to provide that the denial is

without prejudice to the filing of a new petition. The order is affirmed as so modified.
_________________________________

ELIA, ACTING P.J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

DANNER, J.

People v. Giraldes

H047471