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

EVA DALEY,

Defendant and 

Appellant.

 B307943

 (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, Senior 
2

Assistant Attorney General, Amanda V. Lopez and Stephanie A. 

Miyoshi, Deputy Attorneys 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 General 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 trial2 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 during 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 

Thugs 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 Thugs left. According to Jimenez, the Latin Thugs had 

threatened his mother. 

Following the incident a group of Latin Thugs 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 Thugs gang 

members standing together in Latin Thugs 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 Cano with a knife, which 

was never recovered. Some 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 trial 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 Thugs because they had been disrespected at Rivera’s 

home. However, there 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, not 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 failed 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 omitted the requirement of a nexus between

the target offense that she had allegedly aided (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 1170.95 and checked 

boxes on the printed form petition to establish her eligibility for 

relief, including the boxes stating she 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 prosecutor 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 affirming 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 Bill 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 abetting the murder. 

The court then observed that circumstantial evidence could 

support a finding of 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.5th 
7

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 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 

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 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, 

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 murder 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 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 

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 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 meet 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 superior 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 General 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 

impermissible 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 

confirmed the jury had been instructed on the natural and 

probable consequences doctrine and the prosecutor had argued 
10

that 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 from 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 after an evidentiary hearing that Daley was 

ineligible for resentencing relief, remand is also necessary;

because the court used an incorrect standard of proof: It

determined 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 

implied 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

DISPOSITION

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.