Filed 3/15/22 P. v. Daley CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

EVA DALE Y

,

Defendant and Appellant. B 307943

(Los Angeles County Super. Ct. No. NA074833

- 01 )

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, James Otto, Judge. Reversed and
remanded with directions. Susan K. Shaler, 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, Senior2

Assistant Attorney General, Amanda V. Lopez and Stephanie A. Miyoshi , D eputy Attorney s General, for Plaintiff and Respondent.

___________________________ Eva Daley was convicted in 2013 of the second degree
murder of 13

- year

- old Jose Cano following a jury trial at which the prosecutor argued Cano’s murder was the natural and probable consequence of a gang

- related assault enabled by Daley.
In January 2019 Daley petitioned for resentencing pursuant to Penal Code section 1170.95

. 1 After appointing counsel for Daley and receiving briefs from the People and Daley ’s attorney , the superior court denied the petition, finding “a reasonable jury could find beyond a reasonable doubt that [Daley] acted with implied malice and/or a reckless disregard for human life and would be guilty of second degree murder.” As Daley and the Attorney G eneral agree, the superior court erred

, and the matter is properly remanded for the court to issue an order to show cause and hold an evidentiary hearing at which the prosecution is required to prove beyond a reasonable doubt that Daley is guilty
of murder under current law.

FACTUAL AND PROCEDURAL BACKGROUND

1. Daley’s Conviction for Second Degree Murder

The evidence at Daley’s third trial 2 established that Cano, a member of the Latin Thugs , a Long Beach area criminal street

1 Statutory references are to this code.

2 At her initial trial Daley and Heriberto Garcia , Cano’s actual killer, were both found guilty of second degree murder. We affirmed Garcia ’s conviction but reversed as to Daley based on an erroneous instruction on the natural and probable consequences doctrine

. ( People v. Garcia (Aug. 2, 2010, B211909)3

gang, was stabbed to death duri ng an attack by Heriberto Garcia
and other teenage members of the Loco Marijuana Smokers (or LMS) gang or tagging crew , a rival of the Latin Thugs. Daley, whose son, Mauricio Rivera, was a member of LMS, drove Garcia,
Rivera and several other LMS members to and from the area
where the murder occurred. On the day of the attack Rivera and Carlos Jimenez, another LMS member who lived in the same apartment complex as Daley and Rivera, were involved in a confrontation with Latin Thug s gang members in an alley behind the complex. During the altercation Daley and Jimenez’s mother joined their sons in the alley and remained there , talking to Rivera and Jimenez, after the Latin Thug s left. According to Jimenez, the Latin Thugs had
threatened his mother.
Follo wing the incident a group of Latin Thug s members drove by the apartment complex and displayed gang signs from their vehicle. Later that evening, as Daley drove her SUV with a group of at least seven LMS members, including Garcia, Rivera and Jimenez, they saw Cano and other Latin Thug s gang members standing together in Latin Thug s territory. Daley stopped the SUV, and the youths jumped out and ran toward their rivals. Cano was chased to a nearby park, where he was
surrounded and beaten. Garcia stabbed Ca no with a knife, which
was never recovered. S ome of the LMS members then returned to Daley’s SUV, where she had been heard by a witness shouting, “Come on, come on, let’s go, let’s go.” Daley drove quickly away
from the scene.

[nonpub. opn.].) Daley’s second trial ended in a mistrial when the jury was unable to reach a verdict.4 There was testimony at tria l that several of the young men were carrying sticks or small bats when they got into Daley’s SUV and that they discussed their plan to “rumble” with the Latin Thug s because they had been disrespected at Rivera’s
home . However, t here was no evidence Daley knew Garcia was
armed with a knife

. Testifying in her defense, Daley insisted she was simply taking her son’s friends home when someone in the back of the vehicle told her to stop. She slowed the SUV, and the young men jumped out. She then stopped, no t knowing what was happening. Daley remained in the car until the youths returned. She did not
learn that someone had been seriously injured until the following day. The jury found Daley guilty of second degree murder and
found not true a criminal street gang enhancement. She was sentenced to an indeterminate state prison sentence of 15 years
to life. Daley’s appeal of her conviction focused on the prosecution’s theory she was liable for Cano’s murder under the natural and probable consequences doctrine. We affirmed the conviction ( People v. Daley (Aug. 20, 2014, B248219) [nonpub. opn.]) , rejecting Daley’s arguments the People had f ailed to carry their burden of proving Daley had the requisite knowledge of
Garcia ’ s criminal purpose (the intended assault of rival gang members) and that murder was a natural and probable consequence of the assault that occurred . We also rejected her claim the instruction on the natural and probable consequences doctrine erroneously o mitted the requirement of a nexus between the target offense that she had allegedly aid ed (assault) and the nontarget offense (murder) committed by Garcia

.5 2. Daley’s Petition for Resentencing On January 17, 2019 Daley, representing herself, filed a petition for resentencing under section 1170.9 5 and checked boxes on the printed form petition to establish h er eligibility for relief, including the boxes stating s he had been charged and
convicted of murder under the natural and probable consequences doctrine 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 Daley

. In an opposition memorandum the pr osecutor asserted Daley had been tried under the theory she had directly aided and abetted Cano’s murder, as well as the theory the murder was a natural and probable consequence of the assault on Cano, and argued the facts as described in our opinion affir ming Daley’s
conviction established Daley had acted with implied malice and was “factually ineligible for relief.” Daley’s counsel filed a reply memorandum and argued at a hearing before the court on September 21, 2020 that Daley had been tried under the natural and probable consequences doctrine ; it was improper to introduce a new theory of liability (implied malice) at this point in the proceedings; and, in any event, the evidence was insufficient to support a conviction under an implied malice theory. The prosecutor responded at the hearing that, although the main theory at trial had been that Daley was liable for murder under the natural and probable consequences doctrine, there was sufficient evidence to support a conclusion she had acted with implied malice.6 The court suggested the question before it was whether “a reasonable jury, based on the evidence presented, [would] have found beyond a reasonable doubt defendant acted with implied malice and/or reckless disregard for human life and was a major participant.” The prosecutor gently corrected the court, explaining the major participant aspect of Senate Bil l 1437’s reform of accomplice liability for murder applied only to the felony

- murder rule, which was not at issue in this case , and
confirmed he was arguing Daley was ineligible for relief based on
evidence that she had acted with implied malice (a reckless disregard for human life) while aiding and abet t ing the murder

. The court then observed that circumstantial evidence could support a finding o f implied malice and denied the petition, finding a “reasonable jury could find beyond a reasonable doubt that [Daley] acted with implied malice and/or a reckless disregard for human life and would be guilty of second degree
murder.” Daley 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); see People v. Lewis (2021) 11 Cal.5th7

952, 957 ( Lewis ).) 3 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 an d 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 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)), 4 and d irect the pro secutor 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); s ee 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, “allowi ng the court to distinguish petitions with potential merit from those that are clearly meritless.” ( Lewis

,

3 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 murd er and voluntary manslaughter.

4 Prior to enactment of Senate Bill No. 775 the requirement to appoint counsel was set forth in subdivision (c) of section 1170.95.8

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 ord er 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 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 re sentence 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 guilty of murder . . . under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (d)(3), as amended by Senate Bill No. 775, effective January 1, 2022.) 5 The prosecutor and petitioner may rely on the record of conviction or
offer new or additional evidence to me et their respective burdens. (See Gentile

, supra , 10 Cal.5th at pp. 853

- 854.)

5 Senate Bill No. 775 also amended section 1170.95, subdivision (d)(3), to clarify that “[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.”9 2. Remand Is Necessary for the Superior Court To Issue an Order To Show Cause and Conduct an Evidentiary Hearing at Which the Court Applies the Correct Standard of Proof
The su perior court did not issue an order to show cause prior to the hearing on September 21, 2020 at which the parties discussed the evidence presented at Daley’s third trial , and the court responded based on its understanding of the facts

. (As Daley explains in her opening brief, the superior court did not review the trial record, relying on the factual summary in our opinion affirming Daley’s conviction and counsel’s discussion of what the trial evidence showed.) It is not entirely clear, therefore, whether the superior court intended to deny the petition because Daley had failed to make the prima facie showing required by section 1170.95, subdivision (c), before the court must issue an order to show cause and hold an evidentiary hearing (as the Attorney Gene ral contends) or because, following an evidentiary presentation, the prosecution had proved Daley was ineligible for resentencing within the meaning of
section 1170.95, subdivision (d)(3) (as Daley argues ). We need not attempt to resolve that uncertainty : Under either scenario, reversal and remand for an evidentiary hearing applying the proper standard of proof is required. To the extent the superior court found that Daley had failed to make the required prima facie showing, it did so by engaging in imp ermissible factfinding. Daley’s section 1170.95 petition alleged she had been prosecuted and convicted of murder under the natural and probable consequences doctrine, allegations that are amply supported by our opinion affirming her appeal , which
confirme d the jury had been instructed on the natural and probable consequences doctrine and the prosecutor had argued10

th at theory to the jury

. Whether Daley could now be convicted of murder on a theory of implied malice cannot be determined as a
matter of law fr om the record of conviction; the answer to that question necessarily requires a weighing of the evidence that will be presented at a subdivision (d)(3) hearing following issuance of
an order to show cause. If the superior court actually intended its ruling to constitute a finding a fter an evidentiary hearing that Daley was ineligible for resentencing relief

, remand is also necessary;
because the court used an incorrect standard of proof : It
determin ed only that a reasonable jury could find her guilty on a still

- valid theory of murder, not that the prosecution had proved (to the court acting as independent fact finder) , beyond a reasonable doubt, that Daley was guilty of murder under current
law , as now expressly required by section 1170.95, subdivision (d)( 3), as amended by Senate Bill No. 775

. And as the Attorney General acknowledges, even were we to evaluate whether the superior court’s use of an improper standard of proof constituted harmless error, because the court’s findings referred not only to impli ed malice but also to “a reckless disregard for human life”

— a standard that is entirely irrelevant to the facts of Daley’s case

— it is not possible on this record to determine what the outcome of a properly conducted evidentiary hearing would be.11 DISPOSIT ION The postjudgment order denying Daley’s petition for resentencing is reversed, and the matter remanded for the superior court to issue an order to show cause and to hold an evidentiary hearing applying the correct standard of proof and evidentiary rules as set forth in section 1170.95,
subdivision (d)(3).

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.