Filed 3/8/22 P. v. Velasquez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ERVIN ANTONIO VELASQUEZ,

Defendant and Appellant.

F081876

(Fresno Super. Ct. No. F11906647)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. 

Harrell, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, and 

Christina Hitomi Simpson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Franson, Acting P. J., Meehan, J. and De Santos, J.
2.

INTRODUCTION

Appellant and defendant Ervin Antonio Velasquez pleaded guilty to second degree 

murder and admitted the personal use of a firearm, pursuant to a negotiated disposition 

where he was sentenced to 15 years to life plus 10 years. He subsequently filed a petition 

for resentencing pursuant to Penal Code1section 1170.95, requested appointment of 

counsel, and asserted he was not the actual killer and had been convicted under the 

theories of felony murder and/or natural and probable consequences. The court did not 

appoint counsel, found appellant failed to state a prima facie case for relief, and denied 

the petition.

On appeal, his appellate counsel filed a brief that summarized the facts with 

citations to the record, raised no issues, and asked this court to independently review the 

record. (People v. Wende (1979) 25 Cal.3d 436.) This court requested supplemental 

briefing to address the California Supreme Court’s interpretation of section 1170.95 in 

People v. Lewis (2021) 11 Cal.5th 952 (Lewis), and recent amendments to that statute.

We will reverse the court’s order that denied the petition and remand the matter 

for further appropriate proceedings.

FACTS

As will be explained below, appellant entered a plea prior to the preliminary 

hearing. The following factual statement is from the summary of police reports contained 

in the probation report, which the trial court apparently relied on when it denied 

appellant’s section 1170.95 petition for relief.

Discovery of Victim’s Body

On the morning of November 13, 2011, a person looking for recyclable items 

opened a dumpster near Harvey and Maple Avenues in Fresno and discovered a woman’s 

1 All further statutory citations are to the Penal Code unless otherwise indicated.
3.

body inside the bin. The police responded and identified the woman as Limbo Srey; her 

identification was in her clothing.

Srey had a single gunshot wound on the right side of her forehead, above the right 

eye, with a large amount of blood on her head. There were dirt stains on her back and 

pants, consistent with being dragged.

The coroner later determined Srey died from a perforation of the brain due to a 

single gunshot wound to the head, and her death was a homicide. A bullet was lodged 

between Srey’s scalp and her fractured skull. The bullet recovered from her head was 

similar to a .38-caliber or nine-millimeter round. There were bruises on the inside of her 

upper lip and on her lower legs.

Appellant’s Initial Statements

Shortly after finding the body, the police notified Srey’s family of her death. Her 

family reported she had been living with appellant, her boyfriend, at his residence on East 

Olive.

The detectives went to appellant’s residence and asked about Srey. Defendant 

invited the detectives inside, and they detected the faint smell of bleach in the house. The 

detectives asked when he last saw Srey. Appellant said they smoked crystal 

methamphetamine together on Saturday, November 12, 2011. She left sometime between 

6:00 p.m. and 11:00 p.m. to sell her recyclables. He called her three times that night, but 

she never responded. Appellant said he again called her at 10:30 a.m. on Sunday, 

November 13, but she did not answer. He thought it was strange that she did not return 

home.

Appellant described Srey’s clothing, which was consistent with the clothes found 

on her body. Appellant was not aware that Srey had problems with anyone. The 

detectives asked if he had any reason to hurt Srey, and he said no. The detectives advised 

appellant that they were investigating Srey’s death and had already notified her family.
4.

Srey’s hair had been matted with blood and contained twigs and leaves. When 

they were at appellant’s house, the detectives noticed there were leaves on the ground 

outside that were similar to those found on Srey’s body. The ground was wet, and the 

area was freshly raked.

Appellant’s Additional Statements

On November 17, 2011, appellant’s house was searched pursuant to a warrant, and 

he was taken to the police department for questioning.

Appellant was advised of the warnings pursuant to Miranda v. Arizona (1966) 384 

U.S. 436, waived his rights, and agreed to answer questions. Appellant said he smoked 

methamphetamine with Srey all day and night on Friday, November 11, 2011. He was 

upset at Srey because she had been stealing, and some guy would call her, and she would 

leave. On Saturday, November 12, 2011, they smoked crystal methamphetamine and had 

sex. At 1:00 p.m., Srey left to sell recyclables. Appellant said he called her around 3:00 

p.m., and Srey said she was going to return. She was back at the house about an hour 

later. Appellant and Srey left, they bought more crystal methamphetamine, returned to 

the house, and used the drugs.

Appellant said they were lying on the bed together and talking, and he 

remembered that he had left a gun on the bed. He got up and smoked more 

methamphetamine. When he returned to bed, Srey was holding his gun and wanted to 

fire it because she was familiar with firearms. Appellant told Srey the gun was not for 

play and only for protection. Srey had the gun in her left hand, and appellant did not 

realize she had pulled back the hammer. Appellant said he sat up and tried to grab the 

gun, but “as he grabbed the gun, it went off.” Appellant said Srey was shot above her 

right eye, and she was bleeding. He called out to Srey, “ ‘Look at what you did.’ ”

Appellant said he did not know what to do, so he carried Srey into the backyard 

and placed her next to a small tree. He tried to help her, but Srey did not respond. 

Appellant said his mind went blank, and he felt crazy because he had smoked 
5.

methamphetamine. He thought about calling the police but knew it would be considered 

his fault. Appellant said they had previously moved a recycle bin to their house. He 

dragged Srey’s body to that bin and placed her inside. Appellant admitted there were 

leaves in her hair from dragging her from his yard to the bin.

Appellant went back into the house, removed the bloody sheets from the bed, cut 

them up, and dumped the sheets and Srey’s cell phone into the canal near McKinley and 

Chestnut Avenues. At 3:00 a.m., he pushed the recycle bin with Srey’s body away from 

his house, and to the location where it was found the next morning.

During the interview, appellant demonstrated to the detectives how the shooting 

occurred, and sketched the location where he buried the gun on his property.

Recovery of the Gun

Appellant’s house and property were searched pursuant to the warrant, and the 

criminalists found stains on top of a pile of concrete debris that tested positive for blood. 

There was a revolver, a box of Remington “38 Special” ammunition, and three loose 

cartridges wrapped inside of a plastic bag that were buried near a small tree on the 

property.

The detectives showed appellant the gun that was found buried on his property. 

Appellant identified the gun as his weapon, and again said Srey was shot as he took the 

gun from her hand.

The detectives advised appellant that based on the autopsy, his version of events 

did not match how Srey was shot. Appellant “again insisted that [the victim] held the 

gun in her left hand, and it was pulled and bent back directly at her, when it went off 

accidentally.” Appellant denied being mad, jealous, or upset with Srey, and denied that 

he pointed the gun directly at her. Appellant said it was his fault because he never should 

have left the gun lying around, but it happened too fast, and he just reacted.

The detectives later advised the coroner about appellant’s description of the 

shooting. The coroner said appellant’s version of the shooting could not have happened.
6.

PROCEDURAL BACKGROUND

On November 21, 2011, a felony complaint was filed in the Superior Court of 

Fresno County charging appellant with count 1, murder (§ 187, subd. (a)), with an 

enhancement for personally and intentionally discharging a firearm causing death 

(§ 12022.53, subd. (d)).

Plea Hearing

On September 20, 2012, the court granted the prosecution’s motion to amend the 

enhancement to allege a violation of section 12022.53, subdivision (b), that he personally 

used a firearm.

Thereafter, appellant pleaded guilty to second degree murder and admitted the 

amended firearm enhancement, pursuant to a negotiated disposition for a stipulated 

sentence of 15 years to life for murder plus 10 years for the enhancement. Appellant 

signed a felony advisement, waiver, and plea form stating the terms of the negotiated 

disposition, that the parties stipulated to the factual basis for the plea pursuant to People 

v. West (1970) 3 Cal.3d 595, and he waived his appellate rights.

At the plea hearing, the court advised appellant of his constitutional rights, and 

appellant stated he understood and waived his rights. The court asked defense counsel if 

he joined in the waivers, concurred to the plea, and “stipulate[d] to a factual basis for this 

plea based on the exchange of police reports with the DA’s office?” Defense counsel 

said yes.

Sentencing Hearing

On November 2, 2012, the court held the sentencing hearing and asked the parties 

if there were any corrections to the probation report, and the parties said no. The court 

reviewed the facts of the case and stated the murder victim was “found dead inside a 

recycling bin in the area of Harvey and Maple. Cause of death was gunshot wound to the 

head. [Appellant] ultimately admitted involvement, claiming that the victim was shot 

accidentally while he was trying to take a firearm from her. The coroner’s report opines 
7.

that the death could not have occurred as described by [appellant].” The court further 

noted that appellant pleaded guilty to murder and admitted a personal use enhancement.

The court sentenced appellant to 15 years to life for second degree murder, plus a 

consecutive term of 10 years for the section 12022.53, subdivision (b) firearm 

enhancement, consistent with the negotiated disposition.

SENATE BILL NOS. 1437 & 775

The instant appeal is from the denial of appellant’s petition for resentencing that 

he filed pursuant to Senate Bill No. 1437 (2017–2018 Reg. Sess. (Senate Bill 1437)), that 

was effective on January 1, 2019, and amended “ ‘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.’ [Citation.]” (Lewis,supra, 11 Cal.5th at p. 959, italics 

added.)

“Substantively, Senate Bill 1437 accomplishes this by amending section 188, 

which defines malice, and section 189, which defines the degrees of murder, and as now 

amended, addresses felony murder liability.” (People v. Martinez (2019) 31 Cal.App.5th 

719, 723; People v. Gentile (2020) 10 Cal.5th 830, 842.)

“In addition to substantively amending sections 188 and 189 of the Penal Code, 

Senate Bill 1437 added section 1170.95, which provides a procedure for convicted 

murderers who could not be convicted under the law as amended to retroactively seek 

relief. [Citation.]” (Lewis,supra, 11 Cal.5th at p. 959.)

“Pursuant to section 1170.95, an offender must file a petition in the sentencing 

court averring that: ‘(1) A complaint, information, or indictment was filed against the 

petitioner that allowed the prosecution to proceed under a theory of felony murder or 

murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner 

was convicted of first degree or second degree murder following a trial or accepted a plea 
8.

offer in lieu of a trial at which the petitioner could be convicted for first degree or second 

degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second 

degree murder because of changes to section 188 or 189 made effective January 1, 2019.’ 

[Citations.] Additionally, the petition shall state ‘[w]hether the petitioner requests the 

appointment of counsel.’ [Citation.] If a petition fails to comply with subdivision (b)(1), 

‘the court may deny the petition without prejudice to the filing of another petition.’ 

[Citation.]” (Lewis, supra, 11 Cal.5th at pp. 959–960.)

“Where the petition complies with [section 1170.95,] subdivision (b)’s three

requirements, then the court proceeds to subdivision (c) to assess whether the petitioner 

has made ‘a prima facie showing’ for relief. [Citation.] [¶] If the trial court determines 

that a prima facie showing for relief has been made, the trial court issues an order to show 

cause, and then must hold a hearing ‘to determine whether to vacate the murder 

conviction and to recall the sentence and resentence the petitioner on any remaining 

counts in the same manner as if the petitioner had not ... previously been sentenced, 

provided that the new sentence, if any, is not greater than the initial sentence.’ [Citation.] 

‘The prosecutor and the petitioner may rely on the record of conviction or offer new or 

additional evidence to meet their respective burdens.’ [Citation.] At the hearing stage, 

‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that 

the petitioner is ineligible for resentencing.’ [Citation.]” (Lewis,supra, 11 Cal.5th at 

p. 960.)

Lewis

In Lewis, the court interpreted the provisions of section 1170.95 and held that 

petitioners “are entitled to the appointment of counsel upon the filing of a facially 

sufficient petition [citation] and that only after the appointment of counsel and the 

opportunity for briefing may the superior court consider the record of conviction to 

determine whether ‘the petitioner makes a prima facie showing that he or she is entitled 

to relief.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 957.) Lewis held the language of 
9.

section 1170.95, subdivision (c) “is mandatory: ‘If the petitioner has requested counsel, 

the court shall appoint counsel to represent the petitioner.’ [Citation.]” (Lewis, supra, 

11 Cal.5th at p. 963, italics added in original.)

Lewis also held that “at the prima facie stage, a petitioner’s allegations should be 

accepted as true, and the court should not make credibility determinations or engage in 

‘factfinding involving the weighing of evidence or the exercise of discretion.’ 

[Citation.]” (Lewis, supra, 11 Cal.5th at p. 974.) When the court conducts the prima 

facie determination, section 1170.95, subdivision (b)(2) only permits screening out 

“noncomplying petitions, not petitions that lack substantive merit.” (Lewis, at p. 968.)

Lewis further held that after appointing counsel, the trial court could rely on the 

record of conviction to determine whether the prima facie showing is made “to 

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

supra, 11 Cal.5th at p. 971.) The record of conviction includes a prior appellate opinion, 

although it will be case-specific. (Id. at p. 972.) The prima facie finding under

section 1170.95, subdivision (c) is limited, and the court must accept the petitioner’s 

factual allegations as true and cannot reject the allegations on credibility grounds without 

conducting an evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 971.) “ ‘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.” ’ [Citation.]” (Ibid.) “In reviewing any part of the record of 

conviction at this preliminary juncture, a trial court should not engage in ‘factfinding 

involving the weighing of evidence or the exercise of discretion.’ [Citation.] [T]he 

‘prima facie bar was intentionally and correctly set very low.’ ” (Id. at p. 972.)

Lewis held the court’s failure to appoint counsel only constituted state error 

subject to review under People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra, 11 

Cal.5th at p. 973.) In that case, Lewis held that counsel could have assisted the defendant 

“in making a prima facie factual case that his conviction for murder rests on the now-
10.

forbidden natural and probable consequences reasoning,” and remanded the matter for 

“an evaluation of prejudice under Watson in the first instance.” (Id. at p. 975.)

Senate Bill No. 775

In October 2021, Senate Bill No. 775 was enacted and amended section 1170.95, 

effective on January 1, 2022. (2020-2021 Reg. Sess.; Stats. 2021, ch. 551, § 1 (Senate 

Bill 775).) As a result of the amendments, section 1170.95 clarified that “persons 

convicted of felony murder or murder under the natural and probable consequences 

doctrine or other theory under which malice is imputed to a person based solely on that

person’s participation in a crime, attempted murder under the natural and probable 

consequences doctrine, or manslaughter,” may file a petition to have that conviction 

vacated under certain circumstances. (§ 1170.95, subd. (a), italics added.)

The amendments also codified the holding in Lewis that a petitioner has the right 

to appointment of counsel, if requested, prior to the court making the prima facie finding: 

“Upon receiving a petition in which the information required by this subdivision is set 

forth ..., if the petitioner has requested counsel, the court shall appoint counsel to 

represent the petitioner.” (§ 1170.95, subd. (b)(3).) After appointment of counsel, the 

parties shall have the opportunity to submit briefing, and “the court shall hold a hearing 

to determine whether the petitioner has made a prima facie case for relief.” (Id., 

subd. (c).)

If the petitioner makes a prima facie showing that the petitioner is entitled to 

relief, the court shall issue an order to show cause. If the court declines to make an order 

to show cause, it shall provide a statement fully setting forth its reasons for doing so.

(§ 1170.95, subd. (c).)

Senate Bill 775 also amended section 1170.95 to clarify that after the court issues 

the order to show cause and conducts a hearing, the prosecution has the burden to prove 

beyond a reasonable doubt that petitioner is guilty of murder or attempted murder under 

the amended versions of sections 188 and 189. (§ 1170.95, subd. (d)(3).)
11.

“The admission of evidence in the hearing shall be governed by the Evidence 

Code, except that the court may consider evidence previously admitted at any prior 

hearing or trial that is admissible under current law, including witness testimony, 

stipulated evidence, and matters judicially noticed. The court may also consider the 

procedural history of the case recited in any prior appellate opinion. However, hearsay 

evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of 

Section 872 shall be excluded from the hearing as hearsay, unless the evidence is 

admissible pursuant to another exception to the hearsay rule. The prosecutor and the 

petitioner may also offer new or additional evidence to meet their respective burdens. A 

finding that there is substantial evidence to support a conviction for murder ... is 

insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for 

resentencing.” (§ 1170.95, subd. (d)(3), as amended by Stats. 2021, ch. 551, § 2, eff. 

Jan. 1, 2022.)

APPELLANT’S SECTION 1170.95 PETITION

On January 17, 2020, appellant filed, in pro. per., a petition for recall and 

resentencing of his murder conviction pursuant to section 1170.95 and requested 

appointment of counsel.

The petition was supported by appellant’s declaration, signed under penalty of 

perjury, where he checked boxes on a preprinted form that stated he was entitled to 

resentencing under section 1170.95 because a complaint was filed against him that 

allowed the prosecution to proceed under a theory of “felony murder or murder under the 

natural and probable consequences doctrine,” he pleaded guilty or no contest to first or 

second degree murder in lieu of going to trial because he believed he could have been 

convicted of first or second degree murder “pursuant to the felony murder rule or the 

natural and probable consequences doctrine,” he “could not now be convicted” of first or 

second degree murder under the amended versions to sections 188 and 189, he “was not 

the actual killer,” he did not, “with the intent to kill, aid, abet, counsel ... or assist the 
12.

actual killer in the commission of the murder in the first degree,” he was “not a major 

participant in the felony or ... did not act with reckless indifference to human life during 

the course of the crime or felony,” he was convicted of second degree murder under the 

“natural and probable consequences doctrine or under the 2nd degree felony murder 

doctrine” and could no longer be convicted under those theories after the amendments to 

section 188, effective January 1, 2019, and there has been “a prior determination by a 

court or jury that [he] was not a major participant and/or did not act with reckless 

indifference to human life” under section 190.2, subdivision (d).

The People’s Opposition

On February 7, 2020, the prosecution filed opposition to the petition, and recited 

the facts from the law enforcement reports, as summarized in the probation report and 

quoted above. The prosecution argued appellant failed to make a prima facie case for 

relief because he was charged and pleaded guilty as the actual killer of the victim and 

acted with malice. The prosecution argued that appellant’s allegations that he was 

convicted based on theories of felony murder and/or natural and probable consequences 

were not supported by the record, and his petition should be dismissed.

Denial of the Petition

On May 20, 2020, the court issued an order that denied appellant’s petition with 

prejudice and found he failed to make a prima facie showing that he fell within the 

provisions of section 1170.95, because he was the actual killer, he was not convicted as 

an accomplice under the natural and probable consequences doctrine, and he was not 

convicted of second degree felony murder.2

2 The prosecution also moved to dismiss the petition based on the claim that 

enactment of Senate Bill 1437, that resulted in section 1170.95, was unconstitutional. 

The court did not address the constitutional issue, presumably because it denied relief on 

the merits.
13.

APPELLATE BRIEFING

As noted above, appellant’s counsel filed a Wende brief with this court.3 The brief 

also included the declaration of appellate counsel indicating that defendant was advised 

he could file his own brief with this court. By letter on March 5, 2021, we invited 

appellant to submit additional briefing.

Appellant’s Pro. Per. Brief

On March 22, 2021, appellant filed, in pro. per., a brief and asserted the facts set 

forth in his petition “must be taken at face value and cannot be weighed against the 

record of conviction” to determine if he made a prima facie case for relief, and counsel 

should have been appointed. “The perfunctory denial of such a petition without 

appointment of counsel runs contrary to the spirit of the statute,” and section 1170.95 

anticipates that the petitioner should have the opportunity to present additional facts 

demonstrating his entitled to relief.

Appellant argued the failure to appoint counsel was constitutional error, and a 

harmless error analysis would be speculative. Appellant requested remand for 

appointment of counsel and further briefing as to whether he was entitled to relief under 

section 1170.95.

The Parties’ Additional Briefing

On December 14, 2021, this court ordered the parties to file supplemental briefing 

addressing the effect, if any, of Lewis and Senate Bill No. 775’s amendments to section 

1170.95, on the trial court’s denial of appellant’s petition for resentencing, and the issues 

raised in appellant’s pro. per. supplemental brief. Both parties filed supplemental briefs.

3 On September 22, 2020, the Clerk of the Superior Court of Fresno County filed 

the “Certificate of Mailing” of the trial court’s order denying his petition on May 20, 

2020. On October 9, 2020, appellant filed, in pro. per., a notice of appeal, supported by 

his declaration that he received the May 20, 2020, order on September 28, 2020; a copy 

of the clerk’s “Certificate of Mailing,” dated September 22, 2020; and a prison mail log 

showing that he received the documents on September 28, 2020.
14.

Appellant (represented by counsel) argued that the trial court should have 

appointed counsel to represent him since he requested an attorney in his petition, and the 

failure to appoint counsel was prejudicial under Lewis. Appellant further asserted the 

court improperly made factual findings when it found he failed to state a prima facie case 

for relief because it relied on the statements contained in the probation report. Appellant 

requested this court remand the matter for the trial court to appoint counsel and conduct 

further appropriate proceedings.

The People agreed the trial court committed error when it failed to appoint counsel 

before finding appellant failed to make a prima facie case for relief. However, the People 

asserted the error was not prejudicial because the record of conviction, consisting of the 

summary of police reports contained in the probation report, showed that appellant was 

the actual killer, “a direct perpetrator,” and “played a critical role in the murder,” and not 

eligible for relief under section 1170.95.

DISCUSSION

We find that the matter must be remanded because the court’s failure to appoint 

counsel was prejudicial. Appellant requested appointment of counsel in his section 

1170.95 petition, the court failed to do so, and found he failed to state a prima facie case 

for relief in a summary order. A preliminary hearing was never held in this case, and the 

court made its prima facie determination apparently based on the summary of the police 

reports, as contained in the original probation report and recited in the prosecution’s 

opposition.

While the trial court was entitled to consider the record of conviction to make the 

prima facie determination, “[i]n reviewing any part of the record of conviction at this 

preliminary juncture, a trial court should not engage in ‘factfinding involving the 

weighing of evidence or the exercise of discretion.’ [Citation.]” (Lewis, supra, 11 

Cal.5th at p. 972.)
15.

Appellant’s section 1170.95 petition declared he was eligible for relief under every 

possible statutory theory, including that he was not the actual killer. Although the record 

of conviction contained evidence that appellant was the actual killer, and there is nothing 

to support a felony-murder theory, it did not conclusively establish that he was ineligible 

for relief as a matter of law. According to the police reports, appellant told detectives 

that Srey had the gun in her left hand, he did not realize she had pulled back the hammer, 

he tried to grab the gun, and “as he grabbed the gun, it went off” and she was shot above 

the right eye. When advised that his version did not match the autopsy, appellant “again 

insisted that [the victim] held the gun in her left hand, and it was pulled and bent back 

directly at her, when it went off accidentally.”

Thus, according to appellant’s pretrial statements, Srey was holding the gun and 

the fatal shot was fired as he tried to take it away from her, attempting to refute the 

detectives’ claims that he was the actual killer. There is clearly strong evidence that 

appellant was the actual killer, based on the statement in the police reports that his 

account was inconsistent with the coroner’s findings. In finding appellant failed to make

a prima facie case, however, the court necessarily made factual and credibility findings

from the police reports summarized within the probation report, without appointing

counsel or holding an evidentiary hearing. The authority “to make determinations 

without conducting an evidentiary hearing pursuant to section 1170.95, subdivision (d), is 

limited to readily ascertainable facts from the record (such as the crime of conviction), 

rather than factfinding involving the weighing of evidence or the exercise of discretion 

(such as determining whether the petitioner showed reckless indifference to human life in 

the commission of the crime).” (People v. Aleo (2021) 64 Cal.App.5th 865, 871–872.)

The court’s failure to appoint counsel constituted prejudicial error because the 

petition’s allegations, compared to the limited record, created a factual dispute. The 

matter must be remanded for appointment of counsel and further appropriate proceedings.
16.

DISPOSITION

The court’s order of May 20, 2020, denying appellant’s section 1170.95 petition 

for relief, is reversed. On remand, the court is directed to appoint counsel and conduct 

further proceedings as required by section 1170.95.