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Filed 3/12/21 P. v. Navarro CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JACOBO NAVARRO,

Defendant and Appellant.

 A158596

 (Contra Costa County

 Super. Ct. No. 50401711)

Appellant Jacobo Navarro was convicted of second degree murder in 

2004, following a jury trial, and this court affirmed his conviction on appeal. 

In 2019, he filed a petition for resentencing pursuant to newly enacted Penal 

Code section 1170.95,

1 and the trial court denied the petition after finding 

that he did not make a prima facie showing of entitlement to relief. 

Appellant now appeals, contending the trial court improperly relied on this 

court’s prior opinion at the prima facie stage to (1) engage in judicial 

factfinding on issues not conclusively resolved by the record of conviction, and 

(2) determine that the evidence discussed in that opinion would support a 

finding that appellant was guilty under a still valid theory of murder. 

Respondent agrees. We conclude appellant made a prima facie showing of 

entitlement to relief, and the trial court therefore erred in denying his 

1 All further statutory references are to the Penal Code unless 

otherwise indicated. 
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petition for resentencing. We will reverse and remand the matter to the trial 

court for further proceedings. 

PROCEDURAL BACKGROUND

In February 2004, appellant was charged by information with murder 

(§ 187). The information alleged that he had personally used a firearm 

(§ 12022.53, subd. (b)). In April 2004, a jury found appellant guilty of second 

degree murder and found true the firearm use enhancement. The trial court 

sentenced appellant to 15 years to life in prison on the murder count, with an 

additional 10 years for the enhancement. In May 2006, following an appeal, 

this court affirmed the judgment and denied appellant’s petition for writ of 

habeas corpus. (People v. Navarro (May 17, 2006, A106805, A112188)

[nonpub. opn.].)2

On May 3, 2019, appellant filed a petition for resentencing pursuant to 

section 1170.95, and the trial court appointed counsel to represent him. 

On September 9, 2019, following briefing by the parties, the court 

denied the petition for resentencing. 

On September 27, 2019, appellant filed a notice of appeal. 

FACTUAL BACKGROUND

The evidence presented at appellant’s jury trial, as set forth in this 

court’s 2006 opinion, can be summarized as follows. 

On October 26, 2003, appellant and another man, S.R., twice went to a 

parking lot where Ignacio Gonzalez was shot and killed. The statements of 

witnesses who observed appellant and S.R. in the parking lot were somewhat 

inconsistent with their testimony at trial, but the evidence generally showed

that during the first visit, S.R. told appellant to open the trunk of the car 

they were driving and give him the gun. As he opened the trunk, appellant 

2 On August 30, 2006, the California Supreme Court denied appellant’s 

petition for review (case Nos. S144629, S144661).
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said “words to the effect that if he was going to take it out, it was because he 

was going to use it.” One witness then told appellant and S.R. not to do 

anything at his home, and appellant “closed the trunk and said they were not 

planning to do anything.” As appellant and S.R. drove away, a witness 

recalled S.R. saying that they would come back. 

About 10 minutes later, appellant and S.R. returned in the car and 

parked on the street. Witnesses saw the two men “walk into the parking lot, 

appellant trailing behind S.R. and stopping some distance behind him while 

openly displaying a handgun that was tucked in his waistband.” After 

walking up to Gonzalez, S.R. took a handgun out of his waistband, and shot 

him. A witness testified that she saw appellant “stand some feet behind S.R. 

during the shooting, and then remove his gun from his waistband and hold it 

as he turned to walk back to the car with S.R.” Another witness testified that 

he heard four shots and saw appellant, about 18 feet away from S.R. He then 

saw S.R. walk to the car with appellant about 10 feet behind him. The 

witness did not see appellant reach for his gun or remove it from his 

waistband. Appellant’s nephew, who also was present for the shooting,

testified that he did not see appellant with a gun, although he acknowledged 

having previously told police that he had seen appellant with a gun in his 

waistband at the time of the shooting. 

After the shooting, appellant and S.R. walked back to the car and drove 

away. According to witnesses, appellant “did not protest, appear to be 

surprised by the shooting, or appear to be coerced by S.R. into accompanying 

him back to the car . . . .” 

There was also evidence that appellant and S.R. had been drinking a 

short time before the shooting. A bartender testified that appellant drank 

two or three shots of tequila within an hour or two of the shooting and an 
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eyewitness at the scene of the shooting testified that he thought appellant 

was drunk. 

At trial, the prosecutor requested instructions on both aiding and 

abetting and liability for the natural and probable consequences of a target 

offense of assault with a firearm. The prosecutor thought it was unlikely that 

appellant went to the parking lot without an intent to kill, but believed that 

“a jury could conceivably conclude that appellant had intended only to assist 

S.R. in ‘roughing up’ Gonzalez with a gun, and that the killing was a natural 

and probable consequence of the lesser crime of assault with a firearm.” The 

court gave the natural and probable consequences instruction and the 

prosecutor discussed that theory of liability at length in closing argument. 

On appeal, we rejected appellant’s contention that substantial evidence 

did not support the trial court’s natural and probable consequences 

instruction. We disagreed, finding that “it was possible for a juror to 

reasonably infer from the evidence that appellant intended to assist S.R. to 

assault Gonzalez with a firearm, but not necessarily to kill him.” We also 

cited the evidence that both appellant and S.R. had been drinking before the 

shooting, “from which a juror might infer that a planned assault with a 

firearm went further than perhaps intended.” In addition, appellant’s 

nephew had testified that appellant did not have a weapon when he returned 

to the scene, “suggesting, if believed, that appellant was not necessarily 

acting with an awareness of the extent of violence that was about to occur.” 

We further observed that appellant’s and S.R.’s exact intentions could only be 

inferred because there was no direct evidence of their intent.

We held that “while the evidence was overwhelming in support of the 

conclusion that appellant aided and abetted S.R. with the knowledge that 

S.R. was going to kill Gonzalez, substantial evidence warranted the court’s 
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decision to give the natural and probable consequences instruction upon [the 

prosecutor’s] request.” 

DISCUSSION

I. Trial Court Background

In his petition for resentencing, appellant checked the box stating, “I 

was convicted of 2nd degree murder under the natural and probable 

consequences doctrine or under the 2nd degree felony murder doctrine, and I 

could not now be convicted of murder because of [section] 188, effective 

January 1, 2019.” He also requested the appointment of counsel to assist him 

during the resentencing process. After the trial court appointed counsel for 

appellant and both parties submitted briefing, the court denied the petition 

for resentencing. 

In its order, the court first stated that even assuming the jury found 

appellant guilty of second degree murder under the natural and probable 

consequences doctrine, he would only be entitled to relief under section 

1170.95 if he “demonstrated that he could not be convicted under any other 

remaining, valid theory of liability following the adoption of the new 

definitions of murder in [sections] 188 and 189.” The court then discussed 

evidence from our opinion affirming appellant’s conviction, which the court

said “proved convincingly” that appellant was convicted under an aiding and 

abetting theory. 

The court found that “the appellate court’s review of the evidence in 

this case makes clear beyond a reasonable doubt that the evidence presented 

at [appellant’s] trial would support a finding that [appellant], acting with 

intent to kill, aided and abetted a murder committed by his co-defendant . . . . 

For this reason, [appellant] has not made out a prima facie case that he could 
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no longer be convicted of Second Degree Murder under the newer, more 

restrictive definitions of murder set out in [sections] 188 and 189.” 

Legal Background

In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. 

Sess.; Stats. 2018, ch. 1015, eff. Jan. 1, 2019) “ ‘to amend 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.]” (People v. Gentile (2020) 10 Cal.5th 830, 846–847

(Gentile).) “Among other things, Senate Bill No. 1437 amended . . . section 

188 to provide that ‘[e]xcept as stated in subdivision (e) of Section 189 

[governing felony murder], 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).)” (Gentile, at p. 839.) 

Senate Bill No. 1437 also added section 1170.95 “to provide a procedure 

for those convicted of felony murder or murder under the natural and 

probable consequences doctrine to seek relief under . . . ameliorative 

provisions” in amended sections 188, subdivision (a)(3) and 189, subdivision 

(e). (Gentile, supra, 10 Cal.5th at p. 843.) “Section 1170.95 is the exclusive 

avenue by which those previously convicted of murder under now-invalid 

theories may obtain retroactive relief. [Citation.] It ‘lays out a process for a 

person convicted of felony murder or murder under a natural and probable 

consequences theory to seek vacatur of his or her conviction and 

resentencing.’ [Citation.] Further, the relief is fully retroactive, applying not 

only to defendants whose convictions are not yet final but to all those 
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convicted of murder under a natural and probable consequences or felony 

murder theory, no matter how long ago they were convicted, if certain 

conditions are met. [Citation.]” (People v. Duchine (2021) 60 Cal.App.5th 

798, 809 (Duchine), citing Gentile, at p. 853.) 

Specifically, “ ‘ “[a]n offender may file a petition under section 1170.95 

where all three of the following conditions are met: ‘(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 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.’ (§ 1170.95, subd. (a)(1)–(3).) 

‘ “Pursuant to section 1170.95, subdivision (c), the petition shall 

include, among other things, a declaration by the petitioner stating he or she 

is eligible for relief based on all three aforementioned requirements of 

subdivision (a). A trial court that receives a petition under section 1170.95 

‘shall review the petition and determine if the petitioner has made a prima 

facie showing that the petitioner falls within the provisions of this section.’ 

(§ 1170.95, subd. (c).) If the petitioner has made such a showing, the trial 

court ‘shall issue an order to show cause.’ (§ 1170.95, subd. (c).) 

‘ “The trial court must then 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.’ (§ 1170.95, subd. (d)(1).) ‘The 
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parties may waive a resentencing hearing and stipulate that the petitioner is 

eligible to have his or her murder conviction vacated and for resentencing. If 

there was a prior finding by a court or jury that the petitioner did not act 

with reckless indifference to human life or was not a major participant in the 

felony, the court shall vacate the petitioner’s conviction and resentence the

petitioner.’ (§ 1170.95, subd. (d)(2).) Significantly, if a hearing is held, ‘[t]he 

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

or additional evidence to meet their respective burdens.’ (§ 1170.95, subd. 

(d)(3).) ” ’ [Citation.] . . . ‘[T]he burden of proof shall be on the prosecution to 

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

resentencing.’ (§ 1170.95, subd. (d)(3).) ‘ “ ‘If the prosecution fails to sustain 

its burden of proof, the prior conviction, and any allegations and 

enhancements attached to the conviction, shall be vacated and the petitioner 

shall be resentenced on the remaining charges.’ (§ 1170.95, subd. (d)(3).)” ’

[Citation.]” (Duchine, supra, 60 Cal.App.5th at p. 810, quoting People v.

Anthony (2019) 32 Cal.App.5th 1102, 1148–1149.) 

Recently, in Duchine, a panel of this Division addressed the same

issues raised here and found that the trial court improperly denied a petition 

for resentencing at the prima facie stage by (1) “engag[ing] in judicial 

factfinding on issues not conclusively resolved by the record of conviction,” 

and (2) concluding the petitioner could “theoretically have been found guilty”

under a still valid definition of murder. (Duchine, supra, 60 Cal.App.5th at 

p. 816.) As we explained: “[T]he time for weighing and balancing and 

making findings on the ultimate issues arises at the evidentiary hearing 

stage rather than the prima facie stage, at least where the record is not 

dispositive on the factual issues. Thus, absent a record of conviction that 

conclusively establishes that the petitioner engaged in the requisite acts and 
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had the requisite intent, the trial court should not question his evidence.” 

(Id. at p. 815, citing People v. Drayton (2020) 47 Cal.App.5th 965, 981–982 [at 

prima facie stage, trial court may not evaluate evidence, make credibility 

findings adverse to petitioner, engage in factfinding, or exercise discretion]; 

but see People v. Garcia (2020) 57 Cal.App.5th 100, 116 [disagreeing with 

Drayton and holding that at prima facie stage, trial court should not accept 

petitioner’s “assertions as true and issue an order to show cause if 

substantial evidence in the record supports a murder conviction under 

current law”], review granted, Feb. 10, 2021, S265692.) 

Such consideration of the evidence and judicial factfinding may only 

take place after a prima facie case has been made and an order to show cause 

has issued, at which point the parties are permitted to present evidence from 

the record and/or new evidence at an evidentiary hearing. The court will only 

then determine whether the prosecution has proved beyond a reasonable 

doubt that the petitioner is ineligible for resentencing. (Duchine, supra, 60 

Cal.App.5th at pp. 815–816; see § 1170.95, subd. (d)(3).)

Legal Analysis

Appellant contends the trial court erred in denying the petition at the 

prima facie stage after improperly relying on this court’s prior opinion to (1) 

engage in judicial factfinding on issues not conclusively resolved by the 

record of conviction, and (2) determine that the evidence discussed in that 

opinion would support a finding that appellant was guilty under a still viable 

theory of murder. Respondent agrees. Because these issues concern

interpretation of section 1170.95, our review is de novo. (Duchine, supra, 60 

Cal.App.5th at p. 811.) 

It is undisputed that the record of conviction in this case does not

conclusively demonstrate that appellant is ineligible for relief under section 
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1170.95 and the court therefore should not have questioned his evidence. 

(See Duchine, supra, 60 Cal.App.5th at p. 816.) As respondent observes, 

“there is nothing in the record that indicates appellant was necessarily 

convicted of murder based on a theory that he acted with implied malice or 

was a direct aider and abettor. The finder of fact was not specifically 

required to consider that question [and this court’s] opinion does not 

establish or eliminate the theory relied on for conviction. Given the presence 

of the jury instruction on natural and probable consequences, it remains 

possible appellant’s liability for murder was based on the theory that he 

aided and abetted an assault, the natural and probable consequences of 

which was death.” 

In denying appellant’s petition for resentencing, the trial court thus 

erred in both of the ways discussed in Duchine: it engaged in judicial 

factfinding on issues not conclusively resolved by the record of conviction at 

the prima facie stage and determined that appellant “theoretically” still could 

have been found guilty as an aider and abettor under the new, more 

restrictive definition of murder set forth in section 188. (See Duchine, supra, 

60 Cal.App.5th at p. 816.) Because appellant made a prima facie showing 

under subdivision (c) of section 1170.95 that he is entitled to relief, the court 

instead should have issued an order to show cause and reserved its

evaluation of the evidence for the next phase of the process, during which the 

parties could rely on the record of conviction or offer additional evidence at a 

hearing. (See § 1170.95, subds. (c), (d)(3).) The court would then be in a 

position to determine whether the prosecution has satisfied its burden of 

showing beyond a reasonable doubt that appellant is guilty of murder under 

a still valid theory, and therefore ineligible for resentencing. (See § 1170.95, 

subd. (d)(3).) 
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DISPOSITION

For the foregoing reasons, the order denying appellant’s petition for 

resentencing is reversed and the matter is remanded to the trial court with 

directions to issue an order to show cause pursuant to section 1170.95, 

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

subdivision (d), as discussed in this opinion.
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_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

People v. Navarro (A158596)