Filed 12/1/21 P. v. Herrera CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RAUL HERRERA,

Defendant and Appellant.

F079701

(Super. Ct. No. SUF29898B)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. Mark V. 

Bacciarini, Judge.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and 

Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Poochigian, Acting P. J., Detjen, J. and Smith, J.
2.

In 2008, defendant Raul Herrera was convicted of second degree murder (Pen. 

Code,1 § 187 [count 1]) and active gang participation (§ 186.22, subd. (a) [count 2]). In 

connection with the murder conviction, the jury found: (1) the crime was committed for 

the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, 

subd. (b)(5)); and (2) defendant was a principal in the commission of the offense and a 

co-principal personally and intentionally discharged a firearm and proximately caused 

death to someone other than an accomplice (§ 12022.53, subds. (d), (e)(1)). The trial 

court imposed a sentence of 15 years to life with a minimum parole ineligibility period of 

15 years, plus 25 years to life for the vicarious firearm discharge enhancement, on 

count 1; and a consecutive three years on count 2. 

In 2019, defendant filed a petition for resentencing pursuant to section 1170.95, 

which was denied. On appeal, he contends that “[t]he trial court’s denial of the petition 

without appointment of counsel and a hearing constitutes error under section 1170.95 and 

requires reversal.” 

We reverse.

BACKGROUND

I. The shooting2

At a party in Merced, members of two Merced subsets of the Norteño criminal 

street gang exchanged gang taunts with members of the West Coast Outlaws, an Atwater 

criminal street gang. Afterward, defendant and Robby Lee Maule—both Norteños—

confronted members of the West Coast Outlaws in a garage off a nearby alley. Maule 

fired two gunshots into the garage while defendant stood behind him. Korey Suttles, a 

member of the West Coast Outlaws, died of a gunshot wound. 

1 Subsequent statutory citations refer to the Penal Code.

2 We derive the facts of the incident from our nonpublished opinion in the direct 

appeal. (See People v. Maule et al. (May 10, 2010, F057094, F057096), as modified on 

denial of rehearing on June 4, 2010, [nonpub. opn.].)
3.

II. The petition

On January 8, 2019, defendant filed a petition requesting resentencing pursuant to 

section 1170.95. He marked the following checkboxes:

“1. A complaint, information, or indictment was filed against me that 

allowed the prosecution to proceed under a theory of felony murder or 

murder under the natural and probable consequences doctrine.

“2a. At trial, I was convicted of 1st or 2nd degree murder pursuant to the 

felony murder rule or the natural and probable consequences doctrine; 

[¶] . . . [¶]

“3. I could not now be convicted of 1st or 2nd degree murder because of 

changes made to Penal Code §§ 188 and 189, effective January 1, 2019. 

[¶] . . . [¶]

“4. I request that this court appoint counsel for me during this resentencing process. [¶] . . . [¶]

“6. (If applicable) I was convicted of 2nd degree murder under the natural 

and probable consequences 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.” 

The following sentence preceded defendant’s signature:

“I declare under penalty of perjury that the above is true except as to that 

stated on information or belief or that which is a legal conclusion and as to 

those, I believe them to be true.” (Boldface omitted.) 

In its ruling filed March 13, 2019, the court denied the petition. It reasoned:

“The record shows petitioner could be convicted of second-degree 

murder today, regardless of the changes to sections 188 or 189, because the 

evidence demonstrates petitioner was charged and prosecuted under a 

malice murder theory. The jury was not given a felony murder instruction. 

Petitioner was prosecuted and convicted as an accomplice/aider and abettor 

to the crime of murder. He was not convicted of murder under the natural 

and probable consequences doctrine, where malice was implied from 

participation in a non-target felony. Further, the jury found as true, under 

the accomplice to malice murder theory, the enhancement of personal use 

of a firearm for gang purposes.” 
4.

DISCUSSION

I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95

“Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [2017-

2018 Reg. Sess.] ‘to amend the felony murder rule and the natural and probable 

consequences doctrine, as it relates to murder, to ensure that murder liability is not 

imposed on a person who is not the actual killer, did not act with the intent to kill, or was 

not a major participant in the underlying felony who acted with reckless indifference to 

human life.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis), quoting Stats. 2018, 

ch. 1015, § 1, subd. (f).) The bill amended sections 188 and 189 of the Penal Code. 

Section 188, subdivision (a)(3) now reads, “Except as stated in subdivision (e) of Section 

189, 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.” Section 189, subdivision (e) now states, “A participant in the 

perpetration or attempted perpetration of a felony listed in subdivision (a) in which a 

death occurs is liable for murder only if one of the following is proven: [¶] (1) The 

person was the actual killer. [¶] (2) The person was not the actual killer, but, with the 

intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or 

assisted the actual killer in the commission of murder in the first degree. [¶] (3) The 

person was a major participant in the underlying felony and acted with reckless 

indifference to human life, as described in subdivision (d) of Section 190.2.”

Senate Bill No. 1437 (2017-2018 Reg. Sess.) also “added section 1170.95, which 

provides a procedure for convicted murderers who could not be convicted under the law 

as amended to retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 959.) “Pursuant 

to section 1170.95, an offender must file a petition in the sentencing court averring that: 

‘(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 
5.

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[;] [¶] 

[and] (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.’ ” (Lewis, supra, at 

pp. 959-960, quoting § 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A).) 

“Additionally, the petition shall state ‘[w]hether the petitioner requests the appointment 

of counsel.’ ” (Lewis, supra, at p. 960, quoting § 1170.95, subd. (b)(1)(C).) “If a 

petitioner fails to comply with [section 1170.95,] subdivision (b)(1), ‘the court may deny 

the petition without prejudice to the filing of another petition.’ ” (Lewis, supra, at p. 960, 

quoting § 1170.95, subd. (b)(2).) “Where the petition complies with [section 1170.95,] 

subdivision (b)’s three requirements,[3]then the court proceeds to [section 1170.95,] 

subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for 

relief.” (Lewis, supra, at p. 960, quoting § 1170.95, subd. (c).)

Section 1170.95, subdivision (c) provides:

“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.” 

“ ‘If the petitioner has requested counsel, the court shall appoint counsel to 

represent the petitioner.’ [Citation.] The combined meaning is clear: petitioners who 

3 “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.” (§ 1170.95, subd. (b)(1)(A)-(C).)
6.

file a complying petition requesting counsel are to receive counsel upon the filing of a 

compliant petition.” (Lewis, supra, 11 Cal.5th at p. 963.) Only after the appointment of 

counsel and the opportunity for briefing may the court consider the petitioner’s record of 

conviction to determine whether the petitioner has made a prima facie showing that he or 

she is entitled to relief. (Id. at p. 957.)

“[T]he prima facie inquiry under [section 1170.95,] 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 regarding 

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

proved.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) “ ‘[A] court should not reject the 

petitioner’s factual allegations on credibility grounds without first conducting an 

evidentiary hearing.’ [Citation.] ‘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.” ’ [Citation.]” 

(Ibid.; see id. at p. 972 [“In reviewing any part of the record of conviction at this 

preliminary juncture, a trial court should not engage in ‘factfinding involving the 

weighing of evidence or the exercise of discretion.’ ”].)

II. Analysis

The record demonstrates that defendant filed a compliant petition that requested 

appointment of counsel. The court erred in denying the petition without appointing 

counsel. 

In addition, the court denied defendant’s petition on the grounds that he “was 

prosecuted and convicted as an accomplice/aider and abettor to the crime of murder” and 

“was not convicted of murder under the natural and probable consequences doctrine.” 

The record demonstrates that the court instructed the jury on two distinct theories of 

derivative culpability for this offense: (1) defendant could be found guilty if he directly 

aided and abetted the perpetrator (Maule) in the commission of the murder; or 
7.

(2) defendant could be found guilty if he aided and abetted the perpetrator (Maule) in the 

commission of another crime (assault with a firearm) and murder was a natural and 

probable consequence of that crime. (Cf. People v. Soto (2020) 51 Cal.App.5th 1043, 

1055, [trial court did not provide any instruction on which jury could have found the 

accused guilty of second degree murder under the natural and probable consequences 

doctrine], abrogated on another ground by Lewis, supra, 11 Cal.5th at p. 967.) In his 

summation, the prosecutor reiterated that Maule was “the one who pulled the trigger” and 

“the one who killed [Suttles].” While he remarked that defendant was subject to “ ‘aider 

and abettor liability,’ ” he never articulated whether defendant was guilty because he 

directly aided and abetted Maule in the commission of the murder (see People v. Prado

(2020) 49 Cal.App.5th 480, 487 [“ ‘direct’ aider and abettor liability”]) or because he 

“aid[ed] and abet[ted] only an intended assault,” “a murder result[ed],” and a murder was 

“a natural and probable consequence of the intended assault” (People v. McCoy (2001) 25 

Cal.4th 1111, 1117). In support of its ruling, the court pointed out that “the jury found as 

true” “the enhancement of personal use of a firearm for gang purposes,” i.e., defendant 

was a principal in the commission of the murder offense and a co-principal (Maule) 

personally and intentionally discharged a firearm and proximately caused death to 

someone other than an accomplice. For the purposes of a section 12022.53, subdivision 

(e)(1) enhancement, however, a principal “includes aiders and abettors under the natural 

and probable consequences doctrine.” (People v. Lisea (2013) 213 Cal.App.4th 408, 

416.) “[T]he time for weighing and balancing and making findings on the ultimate issues 

arises at the evidentiary hearing stage rather than the prima facie stage, at least where the 

record is not dispositive on the factual issues.” (People v. Duchine (2021) 60 

Cal.App.5th 798, 815.) Absent a record that indisputably establishes that defendant was 

not convicted of second degree murder under the natural and probable consequences 

doctrine, “the trial court should not question his evidence.” (Ibid.; see Lewis, supra, 11 

Cal.5th at p. 972 [“[T]he ‘prima facie bar [is] intentionally and correctly set very 
8.

low.’ ”].) The court erroneously determined that defendant failed to make a prima facie 

showing for relief. 

Neither party contends that these errors were harmless and we find it reasonably 

probable that the petition would not have been denied in the absence of the errors. (See 

Lewis, supra, 11 Cal.5th at pp. 972-974; see also id. at p. 973 [“Typically, when an ‘error 

is purely one of state law, the Watson

[4] harmless error test applies.’ ”].) Accordingly, we 

reverse. 

DISPOSITION

The March 13, 2019 order denying defendant’s petition for resentencing pursuant 

to section 1170.95 is reversed. On remand, the trial court is directed to appoint counsel, 

issue an order to show cause, and conduct further proceedings as required under section 

1170.95, subdivision (d). (See People v. Rivera (2021) 62 Cal.App.5th 217, 239.) 

4 People v. Watson (1956) 46 Cal.2d 818.