Filed 5/7/21 P. v. Franco CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

SALVADOR A. FRANCO,

Defendant and Appellant.

B305769

(Los Angeles County

Super. Ct. No. VA142960)

APPEAL from an order of the Superior Court of Los 

Angeles County. John A. Torribio, Judge. Affirmed.

Danalynn Pritz, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Charles S. Lee and Stephanie A. 

Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
2

Salvador Franco appeals the summary denial of a petition 

for resentencing under Penal Code1 section 1170.95.

Following a jury trial in 2018, appellant was convicted of

the second degree murder of Raul Cervantes in violation of 

section 187, subdivision (a), and sentenced to a term of 15 years 

to life in state prison. Appellant filed a petition for resentencing 

under section 1170.95 on February 24, 2020. The trial court

summarily denied the petition after finding that the prosecution 

did not proceed on a felony-murder theory or under the natural 

and probable consequences doctrine. Appellant contends the trial 

court erred in denying his petition without appointing counsel 

and without giving the parties an opportunity to brief the matter. 

We disagree: The trial court did not err in conducting its prima 

facie review for eligibility without first appointing counsel. 

Although the trial court improperly relied on the preliminary 

hearing transcript and its own memory of the case, the court 

correctly ruled appellant is ineligible for relief under section 

1170.95 as a matter of law because appellant was not convicted 

under a felony-murder theory or the natural and probable 

consequences doctrine.

FACTUAL BACKGROUND2

Around 1:40 in the afternoon on July 30, 2016, Raul 

Cervantes was fatally shot as he stood talking with another man 

1 Undesignated statutory references are to the Penal Code.

2 This statement of facts is drawn from the record of 

appellant’s direct appeal of his conviction (case number 

B289440), which he abandoned and was subsequently dismissed. 

In the instant appeal, we granted respondent’s request for 

judicial notice of the record from the original appeal, which 
3

on the Gage Bridge in Bell Gardens. The shooter wore an 

oversized black hoodie and an LA Dodgers hat, which concealed 

his face. One witness saw the shooter run up the embankment 

and onto the bridge before shooting Cervantes in the side with 

what appeared to be a long-barreled rifle.

Officers recovered four expended .22-caliber long rifle 

casings, which could have been fired from a rifle or a handgun. 

A dog handler traced the shooter’s path down the embankment, 

across Gage Avenue, and onto River Drive, where the shooter 

appeared to have fled in a car. Using surveillance video, police 

identified the car as a gray Nissan, which Jazmine N. had rented 

the day before from Hertz.

Jazmine lived with appellant Franco in a house near the 

Gage Bridge. On July 30, 2016, Jazmine awoke to find Franco

had taken the rental car. Jazmine called Franco, and he told her 

not to call him because he “was doing something right now.” 

Later when she heard police activity on the Gage Bridge, 

Jazmine called Franco again, and this time he told her to meet 

him at a particular house on Vinevale Avenue, a Bell Gardens 

Locos gang hangout. When Jazmine arrived at the house Franco

told her what had happened on the bridge. He sounded panicked 

and scared.

Franco’s codefendant, Manuel Garibay, was arrested about 

a month after the shooting. While Garibay was in custody, police 

placed a paid informant in his cell, and their recorded 

conversation was played for the jury. Garibay told the informant 

he laid down in the seat of the car and his “homie” drove him to 

includes the clerk’s transcripts, jury instructions, and reporter’s 

transcripts from the trial.
4

the spot where he got dropped off, and then he “did [his] thing.” 

Garibay said he “got up on them” and “hit” “[b]oth of them” 

“[l]ike, 15 times.” Garibay described the gun he used as “a bigass rifle.” After the shooting Garibay ran across the street, 

jumped over the guardrail, and ran down the embankment where 

his “homie” was waiting in the gray Nissan. Garibay hopped in 

the car and they took off.

Garibay told the informant he was wearing a black sweater 

with a hood and an “LA” hat that covered his face. Both Franco

and Garibay were admitted members of the Bell Gardens Locos 

criminal street gang. Garibay told the informant the victim was 

a member of the rival Walnut Street gang. When an officer 

walked Franco past Garibay’s cell, Garibay identified Franco to 

the informant as his “homie.”

Franco’s and Garibay’s phones’ cell tower usage around the 

time of the shooting was consistent with the movement of the 

gray Nissan seen in the surveillance videos near the Gage Bridge.

DISCUSSION

Summary Denial of the Section 1170.95 Petition 

Without Appointment of Counsel Was 

Appropriate Because Appellant Was Ineligible 

for Relief as a Matter of Law

A. Relevant proceedings

In his petition for resentencing appellant averred: (1) a 

complaint, information, or indictment was filed against him that 

allowed the prosecution to proceed under the theory of felonymurder or the natural and probable consequences doctrine; (2) he 

was convicted of first or second degree murder pursuant to the 

felony-murder rule or the natural and probable consequences 

doctrine; (3) he could not now be convicted of first or second 
5

degree murder because of the changes made to sections 188 and 

189, which became effective on January 1, 2019; (4) he was not 

the actual killer; (5) he did not, with intent to kill, aid or abet the 

actual killer; (6) he was not a major participant in the felony, nor 

did he act with reckless indifference to human life; and (7) he was 

convicted of second degree murder under the natural and 

probable consequences doctrine and could not now be convicted of 

murder because of the changes made to sections 188 and 189. 

Appellant supported his petition with numerous minute orders 

from his trial and requested that the court appoint counsel.

On March 11, 2020, the superior court summarily denied 

the petition without a hearing and without appointing counsel. 

Stating that it “clearly remember[ed] this case,” the court drew

from the preliminary hearing transcript to describe the facts of 

the case: “The petitioner dropped off the co-defendant who went 

up the stairs to the roadway with the sole purpose of shooting the 

victims. When co-defendant reached the top of the stairs he 

ambushed the victims. Then the co-defendant ran back down the 

stairs where petitioner picked him up.” While in custody, the 

shooter (codefendant) told an informant “he was dropped off by 

petitioner on one side of the bridge went up the stairs and shot 

the victims, ran across the bridge to the opposite side where he 

was picked up by petitioner.”

The court denied the petition, finding that “[t]hese facts do 

not bring into play the criteria of 1170.95(a).” The court 

explained that appellant “was clearly an aider and abettor,” and 

the People had not proceeded under a felony-murder theory or 

the natural and probable consequences doctrine. The court 

reiterated that it had reviewed the transcript of the preliminary 

hearing in reaching its decision.
6

B. The trial court may deny a section 1170.95 petition in 

the prima facie stage of review without first appointing 

counsel if the record of conviction demonstrates the 

petitioner is ineligible for relief as a matter of law.

The Legislature enacted Senate Bill No. 1437 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.” (Stats. 2018, ch. 1015, § 1, subd. (f); 

People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).) 

To accomplish this objective, Senate Bill No. 1437 amended 

section 188, subdivision (a)(3), defining malice, to require that all 

principals to murder must act with express or implied malice to 

be convicted of that crime, with the exception of felony murder 

under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) 

The amendment further provides that “[m]alice shall not be 

imputed to a person based solely on his or her participation in a 

crime.” (§ 188, subd. (a)(3); People v. Lopez (2019) 38 Cal.App.5th 

1087, 1103, review granted Nov. 13, 2019, S258175; People v. 

Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted Mar. 18, 

2020, S260598 (Lewis).) The Legislature also amended section 

189 to include the new requirement that a participant in a 

specified felony during which a death occurs may be convicted of 

murder for that death only if it is proved that the defendant was 

the actual killer, an aider and abettor to the murder who acted 

with the intent to kill, or a major participant in the underlying 

felony who acted with reckless indifference to human life. (Stats. 

2018, ch. 1015, § 3; § 189, subd. (e)(1)–(3).)
7

In addition to these amendments, Senate Bill No. 1437 

added section 1170.95 to provide a procedure by which those 

convicted of felony murder or murder under a natural and 

probable consequences theory may seek retroactive relief if they 

could no longer be convicted of murder because of the changes to 

sections 188 or 189. (Martinez, supra, 31 Cal.App.5th at pp. 722–

723.)

If the petition meets the requirements of section 1170.95, 

subdivisions (a) and (b), the superior court undertakes a two-step 

prima facie analysis set forth in subdivision (c) before an order to 

show cause may issue.3 (People v. Nunez (2020) 57 Cal.App.5th 

78, review granted Jan. 13, 2021, S265918 (Nunez); People v. 

Verdugo (2020) 44 Cal.App.5th 320, 327–328, review granted 

Mar. 18, 2020, S260493 (Verdugo); Lewis, supra, 43 Cal.App.5th 

at pp. 1136, 1140, rev.gr.) In the first step of this analysis, the 

superior court conducts a sua sponte screening of the petition to 

verify the petitioner’s eligibility for relief under the statute. At 

this stage, the court may “examine readily ascertainable 

information in the record of conviction and . . . if that threshold 

review ‘establishes the petitioner is ineligible for relief as a 

3 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.”
8

matter of law because he or she was convicted on a ground that 

remains valid notwithstanding Senate Bill [No.] 1437’s 

amendments to sections 188 and 189’ ” (Nunez, at p. 89, rev.gr.), 

the court may dismiss the petition without the appointment of 

counsel or briefing from the parties. (Lewis, supra, 43 

Cal.App.5th at p. 1140, rev.gr.; Verdugo, supra, 44 Cal.App.5th at 

p. 329, rev.gr.; People v. Offley (2020) 48 Cal.App.5th 588, 597; 

People v. Edwards (2020) 48 Cal.App.5th 666, 674–675, review 

granted July 8, 2020, S262481 (Edwards); People v. Tarkington

(2020) 49 Cal.App.5th 892, 900, review granted Aug. 12, 2020, 

S263219 (Tarkington); but see People v. Cooper (2020) 54 

Cal.App.5th 106, 109, review granted Nov. 10, 2020, S264684 

(Cooper).)

On the other hand, if the record of conviction does not 

indicate ineligibility as a matter of law, the court must proceed to 

step two of the prima facie analysis. There, section 1170.95, 

subdivision (c) requires the court to appoint counsel if requested 

and accept briefing from the parties on the issue of whether the 

petitioner is “entitled to relief.”4 (Verdugo, supra, 44 Cal.App.5th 

4 If, after the parties’ briefing, the petitioner has made a 

prima facie showing that he is entitled to relief because there 

remains no proof of ineligibility as a matter of law, “the court 

shall issue an order to show cause” why relief should not be 

granted. (§ 1170.95, subd. (c); see Aguilar v. Atlantic Richfield 

Co. (2001) 25 Cal.4th 826, 851 [“A prima facie showing is one that 

is sufficient to support the position of the party in question”]; In 

re Edward H. (1996) 43 Cal.App.4th 584, 593 [“A ‘prima facie’ 

showing refers to those facts which will sustain a favorable 

decision if the evidence submitted in support of the allegations by 

the petitioner is credited”].)
9

at pp. 332–333, rev.gr.) But as in the initial prima facie review, 

the court does not engage in factfinding and draws “all factual 

inferences in favor of the petitioner.” (Verdugo, at p. 329; People 

v. Drayton (2020) 47 Cal.App.5th 965, 982.)

As appellant notes, there is a split of authority on the issue 

of when a court must appoint counsel and give the parties an 

opportunity to brief the matter⎯either before or after performing 

any review under section 1170.95, subdivision (c), and the issue is 

currently pending before the California Supreme Court.

5 While

the majority of cases hold a court should conduct an initial prima 

facie review to determine whether, in light of the court file, the

petition presents an arguable claim for relief before appointing 

counsel and accepting briefing, one court has disagreed. (Cooper, 

At this point, the People may concede that relief should be 

granted, or in a hearing to determine whether the petitioner is 

entitled to relief, bear the burden of proving beyond a reasonable 

doubt that the petitioner is ineligible. (§ 1170.95, subd. (d).) At 

such a hearing, “[t]he prosecutor and the petitioner may rely on 

the record of conviction or offer new or additional evidence to 

meet their respective burdens.” (§ 1170.95, subd. (d)(3).)

5 The California Supreme Court has undertaken review of 

the following issues in Lewis, Verdugo, Edwards, Tarkington, and 

Cooper: “(1) May superior courts consider the record of conviction 

in determining whether a defendant has made a prima facie 

showing of eligibility for relief under Penal Code section 1170.95? 

(2) When does the right to appointed counsel arise under Penal 

Code section 1170.95, subdivision (c)?” (Lewis, S260598 

<https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScr

een.cfm?dist=0&doc_id=2311967&doc_no=S260598&request_toke

n=NiIwLSEmXkg%2BWzBVSCJdUElJQEA0UDxTJSJeUzNRM

CAgCg%3D%3D> [as of Nov. 12, 2020], archived at 

<https://perma.cc/H7FP-QRMP>.)
10

supra, 54 Cal.App.5th at p. 112, rev.gr.) In Cooper, the court held 

that upon the filing of a “facially sufficient petition requesting 

counsel,” that is, one “that includes all the information required 

under section 1170.95, subdivision (b),” the court must 

immediately appoint counsel and accept briefing from the parties 

in accordance with section 1170.95, subdivision (c) before the 

court may deny the petition. (Cooper, supra, 54 Cal.App.5th at 

pp. 112, 114, rev.gr.)

Cooper thus interprets section 1170.95, subdivision (c) to 

permit only one prima facie review before an order to show cause 

issues. (Cooper, supra, 54 Cal.App.5th at p. 123, rev.gr.) 

According to Cooper, the first sentence of section 1170.95, 

subdivision (c) is merely “a topic sentence summarizing the trial 

court’s task before issuing an order to show cause, and the 

following sentences . . . specify the procedure in undertaking that 

task.” (Cooper, at p. 118, rev.gr.) But this reading of the statute 

renders the first sentence of subdivision (c) of section 1170.95 

superfluous, effectively striking it from the statute. Courts may 

not rewrite statutes in this manner. (People v. Franco (2018) 6 

Cal.5th 433, 437 [“ ‘ “[c]ourts should give meaning to every word 

of a statute if possible, and should avoid a construction making 

any word surplusage” ’ ”]; People v. Massicot (2002) 97 

Cal.App.4th 920, 925 [“In construing a statute, it is the role of the 

judiciary to simply ascertain and declare what is in terms or in 

substance contained in the statute, not to insert what has been 

omitted or omit what has been included”].)

As in all statutory interpretation, our reading of section 

1170.95 must give meaning to all parts of the statute to the 

extent possible. (People v. Shabazz (2006) 38 Cal.4th 55, 67 

[“ ‘The meaning of a statute may not be determined from a single 
11

word or sentence; the words must be construed in context, and 

provisions relating to the same subject matter must be 

harmonized to the extent possible’ ”]; Verdugo, supra, 44 

Cal.App.5th at p. 329, rev.gr.) “To that end, we generally must 

‘accord[] significance, if possible, to every word, phrase and 

sentence in pursuance of the legislative purpose,’ and have 

warned that ‘[a] construction making some words surplusage is to 

be avoided.’ ” (People v. Valencia (2017) 3 Cal.5th 347, 357; 

People v. Abrahamian (2020) 45 Cal.App.5th 314, 332.)

Because the Cooper court’s reading of section 1170.95, 

subdivision (c) excises a portion of the statutory language, we do 

not find its interpretation to be persuasive. Following the 

majority of courts to consider the issue, and pending further 

guidance from our Supreme Court, we conclude that the trial 

court did not err in conducting a prima facie review for eligibility 

under section 1170.95 without first appointing counsel or 

conducting a hearing.

C. Appellant is ineligible for relief under section 1170.95 

as a matter of law because the record demonstrates he was 

not convicted under the felony-murder rule or the natural 

and probable consequences doctrine.

To be eligible for relief under section 1170.95, the petitioner

must make a prima facie showing that he or she “could not be 

convicted of first or second degree murder because of changes to 

Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,

subd. (a)(3).) Here, the trial court correctly denied appellant’s 

petition because the record reveals he was convicted on a theory 

of murder that “remains valid notwithstanding Senate Bill [No.] 

1437’s amendments to sections 188 and 189.” (Verdugo, supra, 

44 Cal.App.5th at p. 330, rev.gr.) Specifically, the jury 
12

instructions given at trial establish that appellant was convicted 

of murder as a direct aider and abettor. He could not have been 

convicted under a felony-murder theory or the natural and 

probable consequences doctrine for the simple reason that the

jury was not instructed on either of these theories.

Although the trial court denied appellant’s petition on 

other grounds, we will uphold the ruling on appeal if it is 

supported by any legally correct theory, even if the court’s stated 

reasons were incorrect. (People v. Hopson (2017) 3 Cal.5th 424, 

459 [“a ruling will not be disturbed on appeal merely because it 

was given for a wrong reason, if the ruling would otherwise be 

correct ‘ “ ‘upon any theory of the law applicable to the case,’ ” ’ 

and ‘ “ ‘regardless of the considerations which may have moved 

the trial court to its conclusion’ ” ’ ”]; People v. Zapien (1993) 4 

Cal.4th 929, 976; D’Amico v. Board of Medical Examiners (1974) 

11 Cal.3d 1, 19; see also People v. Smithey (1999) 20 Cal.4th 936, 

972.)

The jury in this case was instructed on aiding and abetting 

liability (CALCRIM Nos. 400 & 401) and the definition and 

elements of murder (CALCRIM Nos. 500, 520 & 521). No 

instructions on felony murder or the natural and probable 

consequences doctrine were given.

6 Instead, all of the 

6 Such instructions necessarily would have included 

CALCRIM No. 403, the pattern instruction on the natural and 

probable consequences doctrine, and CALCRIM No. 540B, the 

instruction on first degree felony murder, coparticipant allegedly 

committed fatal act. In addition, had the prosecution proceeded 

on multiple murder theories, the trial court would also have 

given CALCRIM No. 548, Murder: Alternative Theories.
13

instructions on murder required a finding that appellant acted 

with malice.7

7 Although the instructions on implied malice murder and 

aiding and abetting under the natural and probable consequences 

doctrine both refer to the “natural and probable consequences” of 

the defendant’s act, the concepts are distinctly different. (People 

v. Soto (2020) 51 Cal.App.5th 1043, 1056, review granted 

Sept. 23, 2020, S263939 (Soto).) Soto explained the distinction 

between implied malice and the natural and probable 

consequences doctrine: “Implied malice is a mental state for the 

commission of the crime of second degree murder, either by the 

principal or as an aider and abettor . . . to murder.” (Ibid., 

rev.gr.) The natural and probable consequence doctrine, on the 

other hand, “is a theory of liability by which an aider and abettor 

who intends to aid a less serious crime can be convicted of a 

greater crime. This doctrine comes into play when ‘an accomplice 

assists or encourages a confederate to commit one crime, and the 

confederate commits another, more serious crime (the nontarget 

offense).’ [Citation.] Applying the natural and probable 

consequences doctrine, ‘a defendant may be held criminally 

responsible as an accomplice not only for the crime he or she 

intended to aid and abet (the target crime), but also for any other 

crime that is the “natural and probable consequence” of the 

target crime.’ [Citation.] Unlike aiding and abetting implied 

malice murder, which requires the aider and abettor to (at least) 

share the mental state of the actual perpetrator of implied malice 

murder, ‘ “aider and abettor culpability under the natural and 

probable consequences doctrine is not premised upon the 

intention of the aider and abettor to commit the nontarget offense 

[e.g., murder] because the nontarget offense was not intended at 

all.” ’ ” (Id. at p. 1058, rev.gr.)

Here, appellant’s jury necessarily found him guilty of

murder based on his own actions and mental state as a direct 
14

A direct aider and abettor can be convicted of murder 

notwithstanding the amendments to sections 188 and 189, which 

changed nothing with regard to direct aider and abettor liability. 

“One who directly aids and abets another who commits murder is 

thus liable for murder under the new law just as he or she was 

liable under the old law.” (Lewis, supra, 43 Cal.App.5th at 

p. 1135, rev.gr.) Accordingly, appellant was required to make a 

prima facie showing that he was not convicted as a direct aider 

and abettor and thereby “ ‘falls within the provisions of’ the 

statute.” (Lewis, at p. 1137; § 1170.95, subds. (a)(3) & (c).) He 

failed to do so. His petition was therefore properly denied on the 

ground that he was not entitled to relief as a matter of law 

because he was not convicted under a theory of felony murder or 

natural and probable consequences, the two theories affected by 

Senate Bill No. 1437.

In sum, the allegations in the petition that appellant “could 

not now be convicted of 1st or 2nd degree murder because of 

changes made to Penal Code §§ 188 and 189” and that he was 

“convicted of 2nd degree murder under the natural and probable 

consequences doctrine” are contradicted by the record of 

conviction. Because the record of conviction plainly shows that 

appellant does not fall within the provisions of the statute, he 

cannot make the first prima facie showing required under section 

1170.95, subdivision (c). Appellant is thus ineligible for relief as 

a matter of law, and the superior court properly denied his 

aider and abettor. The natural and probable consequences 

language in the implied malice instruction required the jury to 

find malice, and thus did not transform appellant’s conviction 

into one for murder under the natural and probable consequences 

doctrine. (See Soto, supra, 51 Cal.App.5th at p. 1059.)
15

petition. (§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at 

p. 329, rev.gr.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.