Filed 10/27/20 P. v. Pantoja 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

DANIEL PANTOJA,

Defendant and Appellant.

F079427

(Super. Ct. No. 1423449)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. 

Steffen, Judge.

Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

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

A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

Daniel Pantoja (defendant) petitioned for resentencing pursuant to Penal Code 

section 1170.95.1 The trial court found he established a prima facie showing he was 

entitled to relief and appointed counsel, but failed to issue an order to show cause and 

instead proceeded to deny the petition on the merits without holding an evidentiary 

hearing. Defendant contends this was error. The Attorney General says defendant 

waived any claim of, or invited any, error when defense counsel declined the court’s offer 

to hold such a hearing. We agree with defendant that any purported waiver was invalid 

under the circumstances of this case. Accordingly, we reverse the order denying the 

petition and remand the matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

A jury convicted defendant (who was jointly tried, albeit before a separate jury, 

with T.D. and J.P.) of first degree murder committed during an attempted carjacking 

(§ 187, subd. (a); count I) and attempted carjacking (§§ 215, subd. (a), 664; count II). 

Jurors were unable to reach a unanimous finding on allegations a principal personally and 

intentionally discharged a firearm, proximately causing great bodily injury or death 

(§ 12022.53, subds. (d), (e)(1)) and that the crime was committed for the benefit of or in 

association with a criminal street gang (§ 186.22, subd. (b)(1)), and those allegations 

ultimately were dismissed. (People v. Diaz (2018) 21 Cal.App.5th 538, 541.)2

1 All statutory references are to the Penal Code.

2

Inasmuch as this opinion was not certified for publication with respect to the 

statement of facts, we have taken judicial notice, by separate order, of our entire opinion 

on direct appeal. (People v. Diaz et al. (Mar. 20, 2018, F071348) as mod. Apr. 10, 2018, 

[partially pub. opn.].)

T.D. was similarly convicted with respect to counts I and II. His jury found the 

gang enhancement allegation not true, but the firearm discharge allegation true. (People 

v. Diaz, supra, 21 Cal.App.5th at p. 541.) J.P. was acquitted. (Ibid.)

The prosecution presented evidence to both juries that showed T.D. was the actual 

killer. (People v. Diaz et al., supra, F071348.) In addition, J.P. testified before both 
3.

On appeal, we affirmed defendant’s convictions, but remanded the matter for the 

limited purpose of affording him the opportunity, pursuant to People v. Franklin (2016) 

63 Cal.4th 261, to make a record of information relevant to his eventual youth offender 

parole hearing. (People v. Diaz, supra, 21 Cal.App.5th at p. 542.) The opinion was filed 

on March 20, 2018, and modified upon denial of rehearing on April 10, 2018.

On January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 

No. 1437) went into effect. In pertinent part, it:

(1) amended section 188 to provide that, “[e]xcept as stated in subdivision (e) of 

Section 189, in order to be convicted of murder, a principal in a crime shall act with 

malice aforethought. Malice shall not be imputed to a person based solely on his or her 

participation in a crime” (§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2);

(2) amended section 189 to provide that “[a] participant in the perpetration or 

attempted perpetration of a felony listed in subdivision (a) [including carjacking] in 

which a death occurs is liable for murder only if one of the following is proven: [¶] 

(1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, 

with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, 

requested, or assisted the actual killer in the commission of murder in the first degree. [¶] 

(3) The person was a major participant in the underlying felony and acted with reckless 

indifference to human life, as described in subdivision (d) of Section 190.2” (§ 189, 

subd. (e), as amended by Stats. 2018, ch. 1015, § 3); and

(3) added section 1170.95, which permits a person convicted of felony murder or 

murder under a natural and probable consequences theory to petition the sentencing court 

to vacate the murder conviction and resentence him or her on any remaining counts 

when, inter alia, he or she could not be convicted of murder because of the changes made 

juries that T.D. fired the fatal shots. (Ibid.) There was also evidence suggesting a 

robbery and/or carjacking was planned, and that Pantoja furnished the gun. (Ibid.)
4.

to section 188 or section 189 by Senate Bill No. 1437 (§ 1170.95, subd. (a)(3), as added 

by Stats. 2018, ch. 1015, § 4).3

On January 23, 2019, defendant filed a petition for resentencing pursuant to 

section 1170.95. Using a preprinted form, defendant asserted he was convicted of murder 

pursuant to the felony murder rule, and could not now be so convicted because of 

changes made to sections 188 and 189, in that he was not the actual killer; did not, with 

the intent to kill, aid and abet the actual killer; was not a major participant or did not act 

with reckless indifference to human life; and the victim was not a peace officer.4 He 

asked that counsel be appointed. In response, the judge who presided over defendant’s 

trial reappointed defendant’s trial counsel and set the matter for hearing. 

Prior to the hearing, the People filed a written motion to dismiss the petition. 

They argued Senate Bill No. 1437 was unconstitutional. Assuming constitutionality, they 

further argued defendant failed to make a prima facie showing of eligibility for relief 

because he was a major participant and acted with implied malice and reckless 

indifference to human life.

Defendant, through counsel, filed a written rebuttal in which he argued the 

determination whether defendant was a major participant who acted with reckless 

indifference to human life should be made by a jury. If the court disagreed, defendant 

asked it to consider certain specific evidence adduced at trial. Defendant argued he had 

3 Because defendant was convicted under a felony murder theory, we do not further 

refer to the natural and probable consequences theory.

4 Defendant also checked the box stating there was 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). That statute permits imposition of a 

sentence of death or life in prison without the possibility of parole for anyone who is 

convicted of first degree murder if he or she, although not the actual killer, aided and 

abetted with reckless indifference to human life and as a major participant, if a felonymurder special circumstance was found to be true. No special circumstance was alleged 

or found in defendant’s case. (See People v. Diaz, supra, 21 Cal.App.5th at p. 541.)
5.

made a prima facie showing of eligibility under section 1170.95; that an examination of 

the facts was premature in that he was asserting his right to a jury trial or, at the least, a 

court trial on the factual issues, prior to any factual findings; and that defendant could not 

be convicted of murder under the law as changed by Senate Bill No. 1437 in that he was 

not a major participant, did not act with implied malice (and, if he did, that was not the 

applicable standard), and did not act with reckless indifference to human life. Defendant 

also argued Senate Bill No. 1437 was constitutional. Defendant reserved the right to 

contest the facts of the offense as alleged by the People. He acknowledged the evidence 

adduced at trial would play a major role in the determination of the issues, but stated he 

expected, and requested leave, to provide additional evidence and argument in support of 

his position. He suggested that the court follow certain steps, and requested a contested 

factual hearing regarding the issues of major participant and reckless indifference to 

human life.

On May 24, 2019, a hearing was held on the petition. Defendant was not 

personally present, having not been transported from prison. This ensued:

“[DEFENSE COUNSEL]: Your Honor, I must admit that I thought 

that procedure was slightly different. I expected Mr. Pantoja to be here. 

But in talking to [the prosecutor] this morning, he explained that this 

Court’s procedure is to do the prima facie hearing first, decide that issue, 

and then, if appropriate, transport the defendant from [prison].

“So I suppose we are here for the prima facie hearing. I set out my 

position on that in my response to the People’s motion. . . . [¶] . . . [¶] . . . I 

don’t think I have nothing [sic] to add to that. [¶] . . . [¶]

“[PROSECUTOR]: I think our points and authorities and argument 

was [sic] pretty extensive that we filed. . . . It’s our contention that the 

defendant hasn’t met his burden of proving he wasn’t a major participant. 

He was standing shoulder-to-shoulder with [T.D.] as [T.D.] was robbing the 

victim just before [T.D.] shot him in the chest.

“And, also, Mr. Pantoja gave [T.D.] the gun earlier in the evening, 

so that would make him a major participant to this offense.
6.

“And, moreover, we are not waiving our objection to the 

constitutionality of this Senate Bill that got passed. . . . [¶] . . . [¶]

“[THE COURT:] I would like to address the issue of a prima faci[e] 

showing. I think we are there, and the reason I think that is because 

Mr. Pantoja checked the boxes, and I think appropriately checked the 

boxes. He was convicted of first- or second-degree murder under the 

felony murder rule. And absent a showing of him being a major 

participant, he couldn’t be sentenced to first- or second-degree murder.

“He argues that — and this would be a factual finding — that he 

didn’t intend to kill; was not a major participant. So I think in that context 

he has at least established a prima faci[e] showing.

“On the other hand, I think it’s essentially fully briefed. I don’t 

know what else you could add. You were here [at trial]. But there’s been a 

split in the defendants here as to which ones want to be here and which 

ones opt not to. So I guess if he wants to be here, to the extent there’s a 

factual issue it might be helpful; on the other hand, if you don’t know, I’m 

ready to rule.

“[DEFENSE COUNSEL]: Judge, I have had no communication 

directly with Mr. Pantoja, and so I don’t know how he personally feels 

about being here. I don’t know if he would like to address the Court. I 

don’t know if there are issues that the Court wants the defense to address. I 

have made no effort thus far to secure witnesses that may have something 

to add to this case; for example, the one codefendant who was acquitted 

and one that was convicted . . . . There may be others.

“The Court heard the trial. The Court knows that there were people 

there.

“There’s also the [surveillance] video [from the store where the 

incident occurred]. I have referenced it in my moving papers. I suppose if 

the Court needed to reexamine the video, that’s going to be around 

somewhere, and we could do that. I don’t know how the Court feels about 

that.

“I have no fundamental problem with the Court ruling today because 

I did cover all of that. At the same time, if the Court thinks that there are 

still factual issues that should be addressed that would help the Court make 

the decision, I’m certainly willing to do that.
7.

“THE COURT: Okay. Well, as you know, I presided over the 

prelim[inary hearing] and the trial. [¶] . . . [¶] . . . And I took pretty 

thorough notes during both, and I have reviewed those notes. I don’t know 

that there’s anything to be gained by additional evidence, unless there’s 

something that you would like to present.

“[DEFENSE COUNSEL]: Judge, not at this point. I could 

speculate in my mind about what the codefendants might say, but it’s 

speculation at this point because I haven’t had a conversation with them. I 

don’t know they would be willing to talk to me; and if they were, I don’t 

know what they would say. So I can’t represent that I have something to 

add.

“THE COURT: Okay. And I appreciate that. [¶] All right. So any 

objection to me ruling on the motion, [defense counsel]?

“[DEFENSE COUNSEL]: No objection.” (Italics added.) 

After the prosecutor likewise stated he had no objection, the court proceeded to 

examine the principal California Supreme Court authorities on the major 

participant/reckless indifference issue — People v. Banks (2015) 61 Cal.4th 788 and 

People v. Clark (2016) 63 Cal.4th 522 — and their application to the facts of defendant’s 

underlying criminal case, as shown by the evidence adduced at trial. Based on that 

evidence, the court opined the jury would have concluded, beyond a reasonable doubt, 

that defendant was a major participant who showed reckless indifference to human life. 

Accordingly, it denied the petition.

Defense counsel stated his recollection of some of the facts was different from that 

of the court, and he questioned the credibility of J.P., one of the witnesses whose 

testimony the court summarized. After further discussion, the court concluded: “But I 

think that what [section 1170.95] says is that at this particular hearing the People have to 

prove beyond a reasonable doubt that the jury would have reached the same conclusion as 

to whether the defendant was a major participant and acted with reckless disregard, and I 

am making that finding.”5

5 The court also found Senate Bill No. 1437 was constitutional. 
8.

DISCUSSION

Defendant contends the trial court erred by reaching the merits of the petition 

without first issuing an order to show cause and proceeding as required by section 

1170.95. Although it is apparent why the court proceeded to rule on the merits without 

issuing an order to show cause or holding an evidentiary hearing, we conclude defense 

counsel did not effectively waive such a hearing, and, under the circumstances, his 

comments should not have been interpreted as obviating the need therefor.

In order to begin the process leading to potential vacatur of his murder conviction 

pursuant to section 1170.95, defendant, having been convicted of felony murder, was 

required to file a petition with the court that sentenced him, seeking to have the 

conviction vacated and to be resentenced on the remaining count. (§ 1170.95, subd. (a).) 

Defendant could properly file such a petition only if all the following conditions applied: 

(1) An information was filed against him that allowed the prosecution to proceed under a 

theory of felony murder; (2) He was convicted of first degree murder following a trial; 

and (3) He could not be convicted of first or second degree murder because of the 

changes to section 188 or 189 that went into effect on January 1, 2019. (§ 1170.95, 

subd. (a)(1)-(3).) Defendant was required to file the petition with the sentencing court, 

and to serve a copy on the district attorney and trial counsel. He was required to include 

in the petition a declaration that he was eligible for relief based on all the requirements of 

section 1170.95, subdivision (a), the case number and year of his conviction, and whether 

he requested the appointment of counsel. (Id., subd. (b)(1).)

Defendant’s petition complied with the foregoing requirements. It thus was 

facially sufficient. Accordingly, the sentencing court was required to review the petition 

and determine if defendant made a prima facie showing that he fell within the provisions 

of section 1170.95. (Id., subd. (c).) Since defendant requested the appointment of 
9.

counsel, the court was obligated to appoint counsel to represent defendant. (Ibid.)6 The 

prosecutor was to file a written response, and defendant (or his counsel) was allowed to 

file a written reply. (§ 1170.95, subd. (c).) The court and parties complied with these 

requirements, and, after briefing, the court determined defendant made a prima facie 

showing he was entitled to relief.7

Subdivision (c) of section 1170.95 provides that following briefing, “[i]f the 

petitioner makes a prima facie showing that he or she is entitled to relief, the court shall

issue an order to show cause.” (Italics added.) The court did not do so here. Nor did it 

adhere to the provisions of subdivision (d) of the statute, which states, in pertinent part:

“(d)(1) Within 60 days after the order to show cause has issued, the 

court shall 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 been 

previously been [sic] sentenced, provided that the new sentence, if any, is 

not greater than the initial sentence. This deadline may be extended for 

good cause.

6 The questions (1) whether superior courts may consider the record of conviction in 

determining whether a defendant has made a prima facie showing of eligibility for relief 

under section 1170.95 and (2) when the right to appointed counsel arises under 

subdivision (c) of that statute, are currently pending before the California Supreme Court. 

(People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260598.) 

This appeal does not require us to address those questions.

7

In People v. Verdugo (2020) 44 Cal.App.5th 320, review granted March 18, 2020, 

S260493, the appellate court explained that the sentencing court’s role with respect to the 

pre-briefing prima facie showing is to decide, based on “documents in the court file or 

otherwise part of the record of conviction that are readily ascertainable,” whether the 

petitioner/defendant is ineligible for relief as a matter of law. (Id. at p. 329.) The second 

prima facie review, conducted postbriefing, “is equivalent to the familiar decisionmaking 

process before issuance of an order to show cause in habeas corpus proceedings . . . .” 

(Id. at p. 328.) Under that standard, “ ‘[t]he court must issue an order to show cause if 

the petitioner has made a prima facie showing that he or she is entitled to relief. In doing 

so, 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.’ 

[Citations.]” (Ibid.)
10.

“(2) The parties may waive a resentencing hearing and stipulate that 

the petitioner is eligible to have his or her murder conviction vacated and 

for resentencing. . . .

“(3) At the hearing to determine whether the petitioner is entitled to 

relief, the burden of proof shall be on the prosecution to prove, beyond a 

reasonable doubt, that the petitioner is ineligible for resentencing. If the 

prosecution fails to sustain its burden of proof, the prior conviction . . . shall 

be vacated and the petitioner shall be resentenced on the remaining charges. 

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

offer new or additional evidence to meet their respective burdens.” (Italics 

added.)

The Attorney General agrees defendant was entitled to an evidentiary hearing 

(preceded, presumably, by issuance of an order to show cause) once defendant made his 

prima facie showing. The question is whether defendant waived his right to such a 

hearing, or invited any error, by electing to submit the matter on the written briefing. 

Under the circumstances presented here, the answer is no.

“ ‘[C]ounsel is captain of the ship. . . . “When the accused exercises his 

constitutional right to representation by professional counsel, it is counsel, not defendant, 

who is in charge of the case. By choosing professional representation, the accused 

surrenders all but a handful of ‘fundamental’ personal rights to counsel’s complete 

control of defense strategies and tactics.” ’ [Citation.]” (People v. Freeman (1994) 8 

Cal.4th 450, 485, italics omitted.) “No clear set of criteria exists for deciding whether a 

right is so fundamental in nature as to require a personal waiver by the accused. 

[Citation.] However, the rights for which a personal waiver is required comprise a 

‘narrow exception’ to the general rule. [Citation.]” (People v. Johnson (2020) 45 

Cal.App.5th 123, 130.)

We need not decide whether defense counsel could ever waive section 1170.95’s

mandates of an order to show cause followed by an evidentiary hearing. Assuming such 

waiver is permissible, we know of no authority suggesting it can be found where, as here, 

counsel is prepared only for a hearing on whether a prima facie showing has been made 
11.

and, by his own admission, has had no communication with defendant concerning 

whether defendant wanted personally to be present or to testify, and has made no attempt 

to contact other potential witnesses. Neither defense counsel nor the court had any way 

of knowing whether there might exist evidence that was never presented at trial, and that 

might be relevant and persuasive with respect to the People’s ability to prove, beyond a 

reasonable doubt, defendant was ineligible for resentencing. This is particularly true 

since, given the fact no felony-murder special circumstance was alleged against him, 

defendant had little or no incentive at trial to present evidence showing that even if he 

was involved in the charged offenses, he was not a major participant and did not act with 

reckless indifference to human life.

One of the Legislature’s purposes in enacting Senate Bill No. 1437 was “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).) The trial 

court having found defendant made a prima facie showing he was entitled to relief under 

the enactment, defendant was entitled to a hearing at which he (and the prosecution) had 

the right to present new or additional evidence on the subject. (§ 1170.95, subd. (d)(3).) 

Defendant, through counsel, expressly requested such a hearing in his written response to 

the People’s opposition to the petition. Defense counsel could neither waive, nor could 

the trial court properly accept a waiver of, defendant’s right thereto, where defendant had 

not been consulted by counsel, was not present or his presence properly waived, and 

where defense counsel had no idea whether additional evidence existed that was relevant 

to the issues to be addressed at a hearing pursuant to section 1170.95, subdivision (d). 

(See People v. Cutting (2019) 42 Cal.App.5th 344, 348 [trial court erred in proceeding 

with resentencing hearing in the defendant’s absence, where the defendant did not waive 

right to be present and defense counsel did not represent to court that the defendant had 

surrendered that right]; People v. Fryhaat (2019) 35 Cal.App.5th 969, 977-978 
12.

[procedure used by trial court did not constitute hearing contemplated by § 1473.7, where 

the defendant did not have opportunity to be heard and counsel did not adequately 

represent the defendant in the defendant’s absence]; People v. Fedalizo (2016) 246 

Cal.App.4th 98, 110 [the defendant was not entitled to be present for uncontested 

eligibility hearing pursuant to § 1170.18, but was entitled to be present for ensuing 

resentencing unless presence was waived; the defendant could appear through counsel if 

counsel represented to court that the defendant was knowingly absent].)

To conclude otherwise would run contrary to the purpose of Senate Bill No. 1437

and result in intolerable unfairness to defendant. “[T]he absent defendant must authorize 

the acts of his counsel.” (People v. Fedalizo, supra, 246 Cal.App.4th at p. 110.) Nothing 

in the record suggests defense counsel was authorized to waive issuance of an order to 

show cause or an evidentiary hearing, or defendant’s presence at the proceedings.

Because we cannot know, on this record, what, if any, additional evidence might 

have been presented had the trial court followed the requirements of section 1170.95, 

subdivisions (c) and (d), we cannot conclude the error — whether attributable to defense 

counsel, the trial court, or both — was harmless. (See People v. Cutting, supra, 42 

Cal.App.5th at p. 350.) Accordingly, we need not determine the applicable standard of 

prejudice or if such error should be deemed structural. The matter must, under any 

standard, be remanded for further proceedings.
13.

DISPOSITION

The order denying the petition is reversed. The matter is remanded to the 

sentencing court with directions to issue an order to show cause under section 1170.95, 

subdivision (c) and hold a hearing pursuant to section 1170.95, subdivision (d). We 

express no opinion concerning defendant’s ultimate entitlement to relief following the 

hearing.

DETJEN, J.

WE CONCUR:

POOCHIGIAN, Acting P.J.

PEÑA, J.