Filed 2/15/22 P. v. Sanchez CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and 

Respondent,

v.

JACINTO PEREZ SANCHEZ,

Defendant and 

Appellant.

 B312061

 (Los Angeles County

 Super. Ct. No. VA070524-01)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Debra Cole-Hall, Judge. Affirmed. 

Richard D. Miggins, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 
2

Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Jacinto Perez Sanchez, convicted in 2004 with Aviu Garcia 

of first degree murder with a felony-murder special-circumstance 

finding, appeals the denial of his petition for resentencing 

pursuant to Penal Code section 1170.951 after the superior court 

found, beyond a reasonable doubt, that Sanchez could still be 

convicted of felony murder under amended section 189, 

subdivision (e)(3), as a major participant in the underlying 

attempted robbery who had acted with reckless indifference to 

human life. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Drug Deal, Attempted Robbery and Shooting

Sanchez, Garcia and Janet Cota were charged in an 

information with murder (§ 187, subd. (a)), attempted robbery 

(§§ 211, 664) and assault with a firearm (§ 245, subd. (a)(2)) with 

a special-circumstance allegation the murder had occurred during 

the commission of the attempted robbery (§ 190.2, subd. (a)(17)). 

The information additionally alleged all three defendants had 

personally used a handgun when committing felony murder and 

attempted robbery (§ 12022.53, subd. (b)) and Sanchez had 

personally and intentionally discharged a handgun proximately 

causing Adrian Briones’s death (§ 12022.53, subds. (c) & (d)). It 

was further alleged that Garcia had used a handgun (§ 12022.5, 

subd. (a)) and personally inflicted great bodily injury on a second 

victim, Roberto Farias. Cota pleaded guilty to attempted robbery 

1 Statutory references are to this code.
3

and admitted a firearm enhancement in a negotiated agreement 

and testified at Sanchez and Garcia’s trial. 

The prosecutor’s theory of the case, as outlined in the 

information and described in his opening statement, was that 

Sanchez fired the shot that killed Briones. By closing argument, 

however, the prosecutor argued the evidence showed Garcia was 

the shooter. Our opinion affirming the judgments of conviction, 

reviewed by the superior court when considering Sanchez’s 

petition, described the evidence presented at the men’s joint trial. 

(People v. Sanchez (July 18, 2005, B173340) [nonpub. opn.].)

Cota needed to make money while her husband was in jail. 

Cota’s husband put her in touch with Farias, whom her husband 

had met while incarcerated. Farias said Briones, Farias’s 

nephew, would pay a finder’s fee for bringing him drug buyers. 

Farias and Cota set up a drug deal with Sanchez and Garcia, who 

agreed to purchase between 100 to 150 pounds of marijuana for 

$300 to $330 per pound. 

The day of the deal Sanchez and Garcia met Cota at a gas 

station, and the three drove to Farias’s home. Farias, who 

thought Cota was coming alone, spoke to Briones on the phone 

and told him to come quickly because the buyers were there. At 

Briones’s urging, Farias asked to see the money. Sanchez and 

Garcia showed him a bag in the back of the car that appeared to 

contain money wrapped in plastic. Sanchez said there was close 

to $50,000 in the bag.

Before Briones arrived, Cota noticed a gun in the 

waistband of Sanchez’s pants. She asked Sanchez to give it to 

her so the deal could go forward. Sanchez gave Cota the gun, 

which she put in her pocket. Although Briones was reluctant to 

go through with the deal because Cota had not come alone, he 
4

changed his mind when Sanchez showed him the bag of money 

and asked to see “the merchandise.” Briones invited Sanchez to 

go with him to the trailer behind Farias’s duplex where the 

marijuana was stored.

Sanchez accompanied Briones to the trailer, bringing the 

bag of money with him. They started weighing packages of 

marijuana. Garcia backed the car into the driveway and down 

near the trailer. Briones handed Garcia several packages, and 

Garcia loaded them into the trunk of the car. By this time, 

Farias and Cota had walked down the driveway and were 

standing near Garcia. Briones told Garcia to stop loading any 

more packages into the car until he counted the money. Sanchez 

placed the money bag on the table. Briones picked up some bills 

and started counting.

According to Farias, who was standing outside the trailer 

door, Sanchez pulled out a gun, pointed it at Briones and said, 

“You’re fucked. I’m taking everything.” Briones dropped the 

money and reached for the gun. He grabbed Sanchez’s arm, and 

the two men struggled. Briones had his back to the trailer door 

during the struggle. Farias saw Garcia run by him, raise his gun 

and point it at Briones. Farias tried to grab Garcia’s hands. 

Farias felt an impact on his hand and went down to the ground. 

He later realized he had been shot. Once on the ground Farias

shielded his face with his hands. He was shot two more times, 

once in the arm and once in the stomach. He did not know who 

shot Briones. 

Cota’s narrative differed from Farias’s. She testified she 

had been back near the trailer when the men were loading 

packages into the trunk. She, Garcia and Farias then walked to 

the front yard of Farias’s home. When they heard a shot, they 
5

ran back to the trailer.

2 Farias, who arrived first, got up on the 

step and looked inside the trailer. He then turned around and 

jumped on top of Garcia. Garcia, who was holding a gun, fired a 

shot. (Cota said she only heard a total of two shots.) Sanchez ran 

out of the trailer; and he, Garcia and Cota ran to the car. 

Cota did not see a gun in Sanchez’s hand as he left the 

trailer, but she saw him holding a gun when they were in the car. 

(Cota still had the gun Sanchez had given her earlier. Garcia and 

Sanchez told her to take that gun home with her.) Sanchez said 

everything had gone badly and he had left the money behind. 

Briones died as a result of a gunshot wound. According to a 

deputy medical examiner, Briones was shot in the back from a 

distance of more than two or three feet. The bullet traveled 

through his body at an upward angle. A supervisor from the 

firearms identification section of the sheriff’s department

testified three .38 caliber shell casings found at the scene were 

fired from the same gun.3

The jury convicted Sanchez and Garcia of first degree 

murder, attempted robbery and assault with a firearm, found 

true the felony-murder special-circumstance allegation and, as to 

Garcia, also found true the firearm-use and great bodily injury 

enhancements with respect to the aggravated assault charge. 

The jury found not true the allegations Sanchez had personally 

and intentionally discharged a firearm during the attempted 

robbery and felony murder. The court sentenced both men to life 

2 Faustino Farias, Roberto Farias’s brother, testified he saw 

Cota back by the trailer before any shots were fired.

3 Two of the shell casings were found outside the trailer and 

one inside it.
6

without parole for murder plus determinate terms for the 

additional charges and enhancements.

We affirmed the judgments on appeal, rejecting Garcia’s 

arguments there was insufficient evidence to support his 

convictions and Sanchez’s claims of instructional error relating to 

Cota’s testimony as an accomplice and his argument the trial 

court had abused its discretion in denying his motion for 

acquittal as to the section 12022.53, subdivisions (c) and (d), 

enhancement allegations that he had personally and 

intentionally discharged a firearm proximately causing the death 

of Briones. (People v. Sanchez, supra, B173340.)

2. Sanchez’s Petition for Resentencing

On March 12, 2019 Sanchez, representing himself, filed a 

petition for resentencing under section 1170.95 and requested the 

court appoint counsel to represent him in the resentencing 

proceedings. Sanchez checked boxes on the printed form petition 

to establish his eligibility for resentencing relief, including the 

boxes stating he had been convicted under a felony-murder 

theory and could not now be convicted of first or second degree 

murder because of changes made to sections 188 and 189 by 

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, 

ch. 1015) (Senate Bill 1437). The superior court appointed 

counsel to represent Sanchez.

4

Following briefing by the People and Sanchez’s appointed 

counsel, the superior court found Sanchez had made a prima facie 

showing of his entitlement to relief and issued an order to show 

cause, setting the matter for an evidentiary hearing. On 

4 Judge Robert J. Higa presided at Garcia and Sanchez’s 

2004 trial. Judge Higa retired prior to the filing of Sanchez’s 

petition. The matter was assigned to Judge Debra Cole-Hall. 
7

April 19, 2021, after considering the trial record and this court’s 

opinion affirming Sanchez’s felony-murder conviction on appeal 

and hearing argument from counsel, the court denied the 

petition, finding beyond a reasonable doubt Sanchez had been a 

major participant in the commission of the attempted murder 

and had acted with reckless indifference to human life and, 

therefore, could still be found guilty of murder on a valid theory 

of felony murder. 

Sanchez filed a timely notice of appeal. 

DISCUSSION

1. Senate Bill 1437 and the Section 1170.95 Petition 

Procedure

Senate Bill 1437 substantially modified the law relating to 

accomplice liability for murder, eliminating the natural and 

probable consequences doctrine as a basis for finding a defendant 

guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843 

(Gentile)) and significantly narrowing the felony-murder 

exception to the malice requirement for murder. (§§ 188, 

subd. (a)(3), 189, subd. (e)(3); see People v. Lewis (2021) 

11 Cal.5th 952, 957 (Lewis).)5 It also authorized, through new 

section 1170.95, an individual convicted of felony murder or 

murder based on the natural and probable consequences doctrine 

to petition the sentencing court to vacate the conviction and be 

resentenced on any remaining counts if he or she could not have 

been convicted of murder because of Senate Bill 1437’s changes to 

5 As amended by Senate Bill No. 775 (2021-2022 Reg. Sess.)

(Stats. 2021, ch. 551, § 2), effective January 1, 2022, the 

ameliorative provisions of Senate Bill 1437 now also apply to 

attempted murder and voluntary manslaughter.
8

the definition of the crime. (See Lewis, at p. 957; Gentile, at 

p. 843.) 

If the section 1170.95 petition contains all the required 

information, including a declaration by the petitioner that he or 

she is eligible for relief (§ 1170.95, subd. (b)(1)(A)), the court must 

appoint counsel to represent the petitioner, if requested

(§ 1170.95, subd. (b)(3)),

6 and direct the prosecutor to file a 

response to the petition, permit the petitioner to file a reply and 

determine if the petitioner has made a prima facie showing that 

he or she is entitled to relief. (§ 1170.95, subd. (c); see Lewis, 

supra, 11 Cal.5th at pp. 962-963.)

In determining whether the petitioner has carried the 

burden of making the requisite prima facie showing he or she 

falls within the provisions of section 1170.95 and is entitled to 

relief, the superior court properly examines the record of 

conviction, “allowing the court to distinguish petitions with 

potential merit from those that are clearly meritless.” (Lewis, 

supra, 11 Cal.5th at p. 971.) However, “the 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 

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. . . . 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 

6 Prior to enactment of Senate Bill No. 775 the requirement 

to appoint counsel was set forth in subdivision (c) of 

section 1170.95.
9

credibility determination adverse to the petitioner.” (Id. at 

pp. 970-971, internal quotation marks omitted.)

If the section 1170.95, subdivision (c), prima facie showing 

has been made, the court must issue an order to show cause and 

hold an evidentiary hearing to determine whether to vacate the 

murder conviction and resentence the petitioner on any 

remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the 

prosecution has the burden of proving beyond a reasonable doubt 

that the petitioner is ineligible for resentencing. (§ 1170.95, 

subd. (d)(3).)7 The prosecutor and petitioner may rely on the 

record of conviction or offer new or additional evidence to meet 

their respective burdens. (See Gentile, supra, 10 Cal.5th at 

pp. 853-854.)

We review the superior court’s factual findings following the 

evidentiary hearing for substantial evidence. (People v. Ramirez 

(2021) 71 Cal.App.5th 970, 985; People v. Hernandez (2021) 

60 Cal.App.5th 94, 113.)

2. Section 189, Subdivision (e)(3), and the Narrowed 

Felony-murder Rule

At the time of Sanchez and Garcia’s trial section 189 

permitted a conviction for felony murder by imputing malice to a 

participant in an inherently dangerous felony, including robbery, 

that resulted in a homicide. (See People v. Chun (2009) 

45 Cal.4th 1172, 1184.) As amended by Senate Bill 1437, 

7 As amended by Senate Bill No. 775, section 1170.95, 

subdivision (d)(3), now clarifies, “A finding that there is 

substantial evidence to support a conviction for murder, 

attempted murder, or manslaughter is insufficient to prove, 

beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing.”
10

section 188, subdivision (a)(3), now prohibits imputing malice 

based solely on an individual’s participation in a crime and 

requires proof of malice to convict a principal of murder except 

under the revised felony-murder rule as set forth in section 189, 

subdivision (e), which requires proof of specific facts relating to 

the defendant’s individual culpability: The defendant was the 

actual killer (§ 189, subd. (e)(1)); although not the actual killer, 

the defendant, with the intent to kill, assisted in the commission 

of the murder (§ 189, subd. (e)(2)); or the defendant was a major 

participant in an underlying felony listed in section 189, 

subdivision (a), and acted with reckless indifference to human 

life, “as described in subdivision (d) of Section 190.2,” the felonymurder special-circumstance provision (§ 189, subd. (e)(3)). 

The overlapping factors for assessing whether a defendant 

was a major participant in an underlying serious felony and acted 

with reckless indifference to human life for purposes of 

section 190.2, subdivision (d), and thus for new section 189, 

subdivision (e)(3), were identified by the Supreme Court in People 

v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 

63 Cal.4th 522 (Clark), and reiterated most recently in In re

Scoggins (2020) 9 Cal.5th 667 (Scoggins). As to whether the 

defendant was a major participant in one of the specified felonies, 

the Banks Court listed the following factors: “What role did the 

defendant have in planning the criminal enterprise that led to 

one or more deaths? What role did the defendant have in 

supplying or using lethal weapons? What awareness did the 

defendant have of particular dangers posed by the nature of the 

crime, weapons used, or past experience or conduct of the other 

participants? Was the defendant present at the scene of the 

killing, in a position to facilitate or prevent the actual murder, 
11

and did his or her own actions or inaction play a particular role in 

the death? What did the defendant do after lethal force was 

used?” (Banks, at p. 803, fn. omitted.)

As to whether a defendant acted with reckless indifference 

to human life, the Supreme Court has enumerated the following 

factors: “Did the defendant use or know that a gun would be used

during the felony? How many weapons were ultimatelyused?

Was the defendant physically present at the crime? Did he or she

have the opportunity to restrain the crime or aid the victim?

What was the durationof the interactionbetween the

perpetrators of the felony and the victims? What was the

defendant’s knowledge of his or her confederate’spropensity for

violence or likelihood of using lethal force? What efforts did the

defendant make to minimize the risks of violence during the

felony?” (Scoggins, supra, 9 Cal.5th at p. 677; accord, Clark,

supra, 63 Cal.4th at pp. 618-622.) “‘“[N]o one of these

considerations is necessary, nor is any one of them necessarily

sufficient.”’” (Scoggins,at p. 677; accord,Banks, supra,

61 Cal.4th at p. 803.)

As the Scoggins Court explained,“Reckless indifference to 

human life is ‘implicitin knowingly engaging in criminal

activities known to carry a grave risk of death.’” (Scoggins, supra,

9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at p. 808 

[“[a]wareness of no more than the foreseeable risk of death 

inherent in any [violent felony] is insufficient”; reckless 

indifference to human life requires “knowingly creating a ‘grave

risk of death’”].) “Reckless indifference ‘encompassesa

willingness to kill (or to assist another in killing)to achieve a

distinct aim, even if the defendant does not specifically desire that
12

death as the outcome of his actions.’” (Scoggins, at pp. 676- 677,

quoting Clark, supra, 63 Cal.4th at p. 617.)

3. Substantial Evidence Supports the Trial Court’s Finding 

That Sanchez Is Ineligible for Resentencing Relief Under 

Section 1170.95

There can be no question substantial evidence supports the 

superior court’s finding that Sanchez was a major participant in 

the attempted robbery. Although Cota arranged the drug 

transaction, it is a reasonable inference that the men, both 

carrying loaded firearms, came to Farias’s home with the 

intention of robbing the drug dealers. Sanchez then initiated the 

robbery as Briones was counting the money Sanchez had given

him, pointing his gun at Briones (after giving one gun to Cota 

immediately before their encounter with Farias) and

provocatively declaring, “You’re fucked. I’m taking everything.”

Although the proof Sanchez acted with reckless indifference 

to human life during the attempted robbery was not as 

overwhelming, that finding, too, is supported by substantial 

evidence. (See People v. Dalton (2019) 7 Cal.5th 166, 244 [When 

considering a challenge to the sufficiency of the evidence to 

support a conviction, the reviewing court determines “‘“whether, 

after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.” 

[Citation.] In so doing, a reviewing court “presumes in support of 

the judgment the existence of every fact the trier could 

reasonably deduce from the evidence”’”]; see also Clark, supra, 

63 Cal.4th at p. 626 [“‘[w]here the circumstances reasonably 

justify the trier of fact’s findings, a reviewing court’s conclusion 
13

the circumstances might also reasonably be reconciled with a 

contrary finding does not warrant the judgment’s reversal’”].)

Even though the evidence indicated it was Garcia, not 

Sanchez, who fired the fatal shot (as reflected by the jury’s 

finding not true as to Sanchez the section 12022.53, 

subdivisions (c) and (d), firearm use enhancements), Sanchez was 

armed and physically present at the scene of what he necessarily 

knew was a crime with a high risk of escalating violence—the 

robbery of drug dealers during a drug deal involving a large 

quantity of marijuana, a large amount of money and at least 

three loaded guns. As discussed, after Sanchez announced the 

robbery and Briones attempted to disarm Sanchez, Garcia came 

to Sanchez’s aid, first shooting Farias and then Briones. There 

was no evidence Sanchez did anything to restrain Garcia or 

lessen his lethal reaction to the robbery gone bad. Moreover, 

after Garcia shot Briones, rather than attempt to assist Briones 

or call for help, Sanchez fled with Garcia and Cota—all factors 

suggesting Sanchez acted with reckless indifference to human 

life. (See Scoggins, supra, 9 Cal.5th at p. 677; Clark, supra,

63 Cal.4th at pp. 618-622; see generally People v. Law (2020) 

48 Cal.App.5th 811, 825, review granted July 8, 2020, S262490 

[“[W]e are not aware of a single case that concludes a defendant 

who personally committed a robbery, used a gun, and was 

present for the shooting did not meet the standard in 

section 190.2, subdivision (d). The defendants who have been 

able to get their special circumstance findings vacated under 

Banks and Clark are those who were not wielding guns 

themselves and also not present for the shooting (either because 

they were acting as getaway drivers or because they were 

involved in the planning of the crime only”].)
14

It is the superior court, not the reviewing court, that must 

be persuaded beyond a reasonable doubt the petitioner can still 

be convicted of murder after Senate Bill 1437’s amendments to 

sections 188 and 189. The evidence in the record here 

reasonably justified the superior court’s conclusion. That it also 

might have supported a finding that Sanchez, although actively 

involved in the attempted robbery, did not act with reckless 

indifference to human life does not warrant reversal of the order 

denying his petition for resentencing. (See People v. Ramirez, 

supra, 71 Cal.App.5th at p. 985; see also People v. Zamudio (2008) 

43 Cal.4th 327, 357-358.)

DISPOSITION

The postjudgment order denying Sanchez’s petition for 

resentencing under section 1170.95 is affirmed. 

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.