Filed 11/16/20 P. v. Urquilla CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

DOUGLAS URQUILLA,

Defendant and Appellant.

 B298404

 (Los Angeles County

Super. Ct. No. BA100645)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Curtis B. Rappe, Judge. Affirmed in part; 

reversed in part and remanded. 

Robert E. Boyce, 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, David E. Madeo and Kristen J. 

Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Douglas Urquilla filed a petition 

for resentencing under Penal Code section 1170.95, with respect 

to his conviction for two counts of first degree murder (Pen. Code, 

§ 187).1 The trial court summarily denied the petition on the 

basis that defendant was ineligible for relief as a matter of law. 

On defendant’s appeal, the Attorney General concedes that 

defendant is not ineligible with respect to one count, but argues 

that he is ineligible with respect to the other. We agree with the 

Attorney General and affirm in part and reverse in part. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Crimes and Conviction2

In 1994, defendant and his fellow gang member Rudolfo 

Corrales shot and killed Martin Jasso and Erika Briseno. It was 

believed that Jasso was killed due to his “perceived cooperation 

with the police on two murders committed three days earlier by 

Corrales.” Briseno was walking with Jasso when defendant and 

Corrales attacked Jasso; the inference is that Briseno was killed 

because she was a witness to the Jasso murder. 

Defendant and Corrales were in a car driven by a third 

man when they approached an alley. Corrales told the driver to 

stop, and got out of the car. As the driver proceeded down the 

alley, he and defendant spotted Jasso and Briseno walking 

together. The car pulled up beside the victims. Defendant 

“pointed a gun out the window at Jasso and fired two shots.” 

1 All undesignated statutory references are to the Penal 

Code.

2 Our discussion of the facts is taken from the opinion in 

defendant’s prior appeal (People v. Urquilla (April 16, 1999, 

B119484 [nonpub. opn.]) which the trial court attached as an 

exhibit to its ruling denying defendant’s section 1170.95 petition. 
3

Jasso and Briseno fled in different directions. Defendant ran 

after Jasso; Briseno had run back toward where Corrales had 

exited the car. Corrales shot and killed Briseno. Corrales then 

joined defendant and the two approached Jasso, who was lying on 

the ground. Two shots rang out, killing Jasso, although it is not 

clear which of the two men fired the shots. 

In 1997, defendant was convicted of two counts of first 

degree murder, with a principal armed enhancement (§ 12022,

subd. (a)(1)). The jury also found the multiple-murder special 

circumstance true. Defendant was sentenced to two consecutive 

terms of life in prison without the possibility of parole (LWOP), 

plus one year. 

In 1999, defendant’s conviction was affirmed on appeal. 

The appellate opinion indicates that, as to the Jasso murder 

(count one), the prosecution had proceeded on the theory that 

defendant was either the actual killer or that he had aided and 

abetted Corrales in killing him.3 As to the Briseno murder (count 

two), the prosecution had argued either that defendant had 

directly aided and abetted Corrales in killing her, or that the 

3 There is a statement in the opinion that Jasso “was killed 

by appellant.” But, later in the opinion, it is explained that the 

prosecution proceeded on alternative theories of actual killer and 

direct aider and abettor of Corrales. As to this second theory, the 

prosecutor specifically argued that defendant “wounded Jasso but 

refrained from killing him so that Corrales could fire the final 

shot.” 
4

Briseno murder was the natural and probable consequence of the 

murder of Jasso.

4

2. Proceedings on Defendant’s Section 1170.95 Petition

On March 25, 2019, defendant, representing himself, filed a 

form petition for resentencing under section 1170.95. He checked 

all the relevant boxes entitling him to relief, and requested 

appointment of counsel. 

On April 9, 2019, the trial court summarily denied the 

petition, without the appointment of counsel or a hearing. The 

court’s order explained that the court had reviewed the file, 

including the appellate opinion and verdict forms. Based on that 

information, “and the court’s recollection of the trial evidence,” 

the court denied the petition. The court concluded the following 

three points were “clear beyond a reasonable doubt”: (1) the 

evidence established defendant was the actual killer of Jasso; 

(2) although the jury had been instructed on natural and 

probable consequences with respect to the murder of Briseno, 

there was sufficient evidence of direct aiding and abetting as 

well, so defendant could still be convicted of the Briseno murder 

under current law; and (3) the multiple-murder special 

circumstance establishes that the jury found defendant acted 

with the intent to kill.

4 In his reply brief, defendant states that natural and 

probable consequences was the only theory pursued with respect 

to the Briseno murder. The appellate opinion states otherwise, 

and, in response to defendant’s insufficiency of the evidence 

argument, found sufficient evidence of both natural and probable 

consequences and direct aider and abettor. The prior panel of 

this court specifically held there was sufficient evidence that 

defendant “did intend to kill, or assist Corrales in killing Briseno 

at the same time as Jasso.” 
5

Defendant filed a timely notice of appeal. 

DISCUSSION

1. Governing Law

In 2018, the Legislature adopted Senate Bill No. 1437 (SB

1437) which, among other things, eliminated the natural and 

probable consequences doctrine as it relates to murder. (People v. 

Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review 

granted Mar. 18, 2020, S260493.) Specifically, SB 1437 amended 

section 188 to provide that, except as it relates to felony murder, 

which is not at issue in this case, “in order to be convicted of 

murder, a principal in a crime shall act with malice 

aforethought.” SB 1437 also enacted a new statutory procedure, 

codified in section 1170.95, by which a defendant convicted of 

murder under the natural and probable consequences doctrine

could seek resentencing under the new, narrower, version of the 

law. 

Once a section 1170.95 petition is filed, there follows a 

multi-step process by which the court first determines whether 

the petition is facially complete, and, if so, whether the petitioner 

has made a prima facie showing that he falls within the 

provisions of statutory eligibility. (People v. Torres (2020) 

46 Cal.App.5th 1168, 1177 (Torres), review granted June 24, 

2020, S262011.) The materials which the court can review at this 

stage include the prior appellate opinion. (People v. Lee (2020) 49

Cal.App.5th 254, 263, review granted July 15, 2020, S262459; 

People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, fn. 7, review 

granted Mar. 18, 2020, S260598.) If the court determines the 

petitioner is ineligible for relief as a matter of law, the petition is 

denied at this first stage; if not, the court proceeds to the next 

step. (Torres, supra, 46 Cal.App.5th at pp. 1177–1178.) At the
6

second stage, the court must appoint counsel for the defendant, if 

requested, and permit briefing on the issue of the defendant’s 

entitlement to relief under the statute. (Verdugo, supra,

44 Cal.App.5th at p. 330.) 

2. The Petition Was Properly Denied With Respect to the 

Jasso Murder But Not the Briseno Murder

At the first stage, the court’s inquiry is only whether the 

defendant is ineligible for relief under section 1170.95 as a 

matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 329.) If, for 

example, the court’s review of the record of conviction necessarily 

establishes the defendant was convicted on a ground that 

remains valid after SB 1437’s amendment of murder law, the 

petition may be denied at this stage. (Id. at pp. 329–330.) But if 

the court “cannot rule out the possibility that the jury relied on 

the natural and probable consequences doctrine in convicting” the 

defendant of murder, there is no prima facie ineligibility. (People 

v. Offley (2020) 48 Cal.App.5th 588, 599.) 

Prima facie ineligibility is a legal conclusion we review de 

novo. (People v. Verdugo, supra, 44 Cal.App.5th at p. 328, fn. 8.) 

A. The Jasso Murder – Count One

Defendant is ineligible for relief as a matter of law with 

respect to the Jasso murder. Defendant was not convicted of that 

murder under a natural and probable consequences theory. The 

appellate opinion confirms that defendant was convicted of the 

Jasso murder either as the actual killer or as a direct aider and 

abettor of the actual killer, Corrales. Regardless of which of 

these theories the jury accepted, defendant is ineligible for relief 
7

under the statute with respect to Jasso’s murder.

5 (See People v. 

Cornelius (2020) 44 Cal.App.5th 54, 58 review granted Mar 18, 

2020, S260410 [a defendant convicted as the actual killer is 

ineligible for section 1170.95 relief]; People v. Lewis, supra, 

43 Cal.App.5th at pp. 1135, 1138–1139 [a defendant convicted for

directly aiding and abetting the actual killer is also ineligible for

section 1170.95 relief].) 

B. The Briseno Murder – Count Two

We reach a different conclusion with respect to the Briseno 

murder. As the Attorney General concedes, the jury found 

defendant guilty of this murder either as a direct aider and 

abettor or under the now-abrogated natural and probable 

consequences doctrine. Because defendant may have been 

convicted under natural and probable consequences, he is not 

ineligible as a matter of law.

The trial court concluded to the contrary, reasoning that 

since sufficient evidence supported the still-proper theory of 

direct aider and abettor liability, defendant’s conviction survived 

SB 1437’s invalidation of the natural and probable consequences 

doctrine. But the conclusion is not appropriate at the prima facie 

stage. The inquiry at this stage is only whether the statute 

5 Defendant does not challenge this conclusion on any facts 

specific to this case, but simply suggests that, as a general 

matter, “the question of whether a petitioner is ineligible for 

relief ‘as a matter of law[]’ [citation] may sometimes be 

disputable. Only the appointment of counsel, who will review the 

petitioner’s case as a zealous advocate on their behalf, can 

identify those cases.” Defendant was appointed counsel on 

appeal, who nonetheless was unable to identify any reason 

defendant may be eligible for section 1170.95 relief with respect 

to the Jasso murder.
8

cannot apply as a matter of law. Because defendant may have 

been convicted of this count on a natural and probable 

consequences theory, the statute may apply. That is all that is 

required at this point. Whether the defendant’s conviction of 

murdering Briseno might nonetheless survive due to evidence 

that was presented to the jury on an alternative theory is an 

inquiry for a later stage of the process. (See People v. Drayton

(2020) 47 Cal.App.5th 965, 980 [if the matter proceeds to an order 

to show cause, the burden is on the prosecution to establish 

beyond a reasonable doubt that defendant is ineligible for 

resentencing].) 

3. The Multiple-Murder Special Circumstance Does Not 

Change the Result

The trial court relied on the multiple-murder special 

circumstance as establishing the jury found defendant acted with 

the intent to kill. The special circumstance does require intent to 

kill when the defendant was not the actual killer. (People v. 

Mora and Rangel (2018) 5 Cal.5th 442, 494.) However, that 

requirement applies only to one murder, not all of them. “To find 

true the multiple-murder special-circumstance allegation, a jury 

must find that the defendant has been convicted of at least two 

counts of murder, at least of one which must be first degree 

murder, and that the defendant either actually killed or 

intended to kill at least one of the victims. [Citations.]”6 (Id. at 

6 Defendant’s jury was instructed accordingly in the 

language of CALJIC No. 8.80.1: “If you are satisfied beyond a 

reasonable doubt that the defendant actually killed a human 

being, you need not find that the defendant intended to kill in 

order to find the special circumstance to be true. [¶] If you find 

that a defendant was not the actual killer of a human being, or if 
9

p. 495.) That the jury found this special circumstance true does 

not mean the jury found defendant acted with the intent to kill 

Briseno; it may mean only that defendant actually killed, or acted 

with the intent to kill, Jasso. 

4. Defendant’s Remaining Arguments are Not 

Cognizable

Prior to SB 1437, our Supreme Court held in People v. Chiu

(2014) 59 Cal.4th 155 that natural and probable consequences 

aider and abettor liability could support second degree murder, 

but not first degree murder. Defendant argues on appeal that his 

conviction of the Briseno murder must be reversed under Chiu.

Regardless of whether Chiu has any remaining effect 

following SB 1437, it is simply not at issue in this appeal. This is 

not a direct appeal of defendant’s conviction or a habeas petition 

raising Chiu (see In re Martinez (2017) 3 Cal.5th 1216), but an 

appeal of the summary denial of a post-judgment petition for 

resentencing under section 1170.95. We conclude that 

defendant’s petition should not have been summarily denied with 

respect to the Briseno murder; that is the sole relief to which he 

is entitled in this appeal.

7 

you are unable to decide whether the defendant was the actual 

killer or an aider and abettor, you cannot find the special 

circumstance to be true as to that defendant unless you are 

satisfied beyond a reasonable doubt that such defendant with the 

intent to kill aided and abetted any actor in the commission of 

the murder in the first degree.” 

7 For the same reason, defendant’s contention that his 

multiple-murder special circumstance should be stricken as only 

the Jasso conviction survives must also be rejected as premature. 

Defendant also argues that he was improperly charged with two 
10

DISPOSITION

The denial of defendant’s section 1170.95 petition is 

affirmed as to count one (the Jasso murder) and reversed as to 

count two (the Briseno murder). As to count two, the matter is 

remanded for the appointment of counsel, the receipt of briefs,

and a hearing in accordance with section 1170.95, subdivision (c). 

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR, J.

multiple-murder special circumstances and that, as he could only 

be charged with one, one of his LWOP terms must be vacated as 

an illegal sentence. While this issue is not cognizable on appeal 

from the denial of defendant’s section 1170.95 petition, 

defendant’s argument is erroneous both as a matter of fact and as 

a matter of law. Factually, only a single multiple-murder special 

circumstance was charged and found true. Legally, “the trial 

court is not precluded from imposing either concurrent or 

consecutive LWOP sentences for each of the first degree murder 

convictions based on the single multiple-murder special 

circumstance.” (People v. Garnica (1994) 29 Cal.App.4th 1558, 

1564.)