Filed 5/19/22 P. v. Mateo CA2/4

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

MILTON MATEO,

Defendant and Appellant.

 B305965

 (Los Angeles County

 Super. Ct. No. BA414092)

APPEAL from an order of the Superior Court of 

Los Angeles County, Laura F. Priver, Judge. Reversed and 

remanded with instructions. 

James Koester, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance 

E. Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Assistant Attorney General, Idan Ivri, Scott A. Taryle

and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Appellant Milton Mateo sought resentencing for his 

attempted murder conviction under the original version of Penal 

Code 1170.95.1 The trial court denied the petition because 

appellant was not convicted of murder, and we affirmed. The 

Supreme Court granted appellant’s petition for review. While the 

petition was pending, the Legislature enacted and the governor 

signed into law Senate Bill No. 775 (Stats. 2021, ch. 551), 

amending section 1170.95 to provide relief for those convicted of 

attempted murder and manslaughter. The Supreme Court 

transferred the matter to this court without decision, with 

directions to vacate our April 20, 2021 decision and reconsider 

the cause in light of Senate Bill No. 775 and People v. Lewis

(2021) 11 Cal.5th 952 (Lewis). We vacated our previous decision 

on January 26, 2022. 

Both parties submitted supplemental briefs asserting that 

the matter should be remanded for the trial court to appoint 

counsel and conduct further proceedings pursuant to section 

1170.95. We agree. The matter is reversed and remanded to the 

trial court with directions to appoint counsel for appellant and 

conduct further proceedings consistent with section 1170.95.

BACKGROUND 

In March 2013, appellant initiated a fistfight with a rival 

gang member outside a Los Angeles grocery store. During the 

fight, appellant’s fellow gang member and codefendant Gunni 

Scroggins stabbed the rival twice in the neck. Appellant and 

Scroggins then fled the scene. The victim survived the attack. A 

jury instructed on both the natural and probable consequences 

doctrine and aiding and abetting principles found appellant and 

1 All further statutory references are to the Penal Code 

unless otherwise indicated. 
3

Scroggins guilty of attempted premeditated murder. (§§ 187, 

subd. (a), 664, subd. (a).) 

We affirmed appellant’s conviction in February 2016. 

Appellant filed a petition for review, and the Supreme Court 

granted review of the following issue: “In order to convict an 

aider and abettor of attempted willful, deliberate and 

premeditated murder under the natural and probable 

consequences doctrine, must a premeditated attempt to murder 

have been a natural and probable consequence of the target 

offense? In other words, should People v. Favor (2012) 54 Cal.4th 

868 be reconsidered in light of Alleyne v. United States (2013) 

___U.S. ___ [133 S.Ct. 2151] and People v. Chiu (2014) 59 Cal.4th 

155?” 

While appellant’s petition was pending, the Legislature 

enacted and the governor signed into law Senate Bill No. 1437 

(Stats. 2018, ch. 1015), which added section 1170.95 and 

“amend[ed] the felony murder rule and natural and probable 

consequences doctrine, as it relates to murder.” (Stats. 2018, ch. 

1015, § 1, subd. (f).) After receiving supplemental briefing on 

Senate Bill No. 1437 from appellant and the Attorney General, 

the Supreme Court transferred the matter to this court with 

directions to vacate our February 2016 decision and reconsider 

the cause in light of Senate Bill No. 1437.2

2 The Supreme Court later granted review of the same 

issue in People v. Lopez, No. S258175. However, in November 

2021 it transferred the Lopez matter to the Second District Court 

of Appeal, Division Seven with directions for the appellate court 

to vacate its decision and reconsider the cause in light of Senate 

Bill No. 775 (Stats. 2021, ch. 551).
4

After supplemental briefing by the parties, we issued a 

decision again affirming appellant’s conviction. (People v. Mateo

(July 9, 2019, B258333) [nonpub. opn.].) However, we concluded 

that the impact of Senate Bill No. 1437 on appellant’s conviction 

and sentence should be analyzed by the trial court in the first 

instance and remanded the matter to the trial court “without 

prejudice to Mateo filing a petition for relief under S.B. 1437 in 

the trial court.” (Ibid.)

Appellant filed a petition for relief under section 1170.95 on 

March 9, 2020. He declared that he was convicted of attempted 

murder under the natural and probable consequences doctrine 

and therefore could not be convicted under current law. He also 

requested appointment of counsel. The trial court summarily 

denied the petition on April 2, 2020, without appointing counsel 

for appellant. The court held that appellant was ineligible for 

relief because section 1170.95 was applicable only to individuals 

convicted of murder, not those who, like appellant, were convicted 

of attempted murder. Appellant appealed, and we affirmed based 

on the text of section 1170.95, which at that time permitted only 

“[a] person convicted of felony murder or murder under a natural 

and probable consequences theory [to] file a petition . . . to have 

the petitioner’s murder conviction vacated and to be resentenced 

on any remaining counts” under certain conditions. (Former 

§ 1170.95, subd. (a).) 

Appellant filed a petition for review, which the Supreme 

Court granted and held pending resolution of People v. Lewis, No. 

S260598, which concerned the trial court’s obligation to appoint 

counsel under section 1170.95, and People v. Lopez, No. 258175, 

which concerned the applicability of section 1170.95 to attempted 
5

murder convictions as well as the issue highlighted in footnote 2 

above. (See People v. Mateo, No. 268757.) 

The Supreme Court issued a decision in Lewis, supra, 11 

Cal.5th 952 in July 2021, holding that a section 1170.95 

petitioner is entitled to the appointment of counsel upon the 

filing of a facially sufficient petition. Shortly thereafter, the 

Legislature enacted and the governor signed into law Senate Bill 

No. 775 (Stats. 2021, ch. 551), which amended section 1170.95 to 

apply to those convicted of “attempted murder under the natural 

and probable consequences doctrine.” (§ 1170.95, subd. (a); see 

also id. subds. (a)(1)-(a)(3).) Senate Bill No. 775 took effect 

January 1, 2022. 

On January 26, 2022, the Supreme Court transferred the 

matter to this court without decision, with directions to vacate 

our April 20, 2021 decision and reconsider the cause in light of 

Lewis, supra, 11 Cal.5th 952, and Senate Bill No. 775. We 

vacated our prior decision and obtained supplemental briefing 

from appellant and the Attorney General.

DISCUSSION 

Senate Bill No. 1437 eliminated murder liability under 

theories of imputed malice other than the felony murder rule, 

which it significantly narrowed. (§§ 188, subd. (a)(3), 189, subd. 

(e); Stats. 2018, ch. 1015, §§ 2, 3.) Senate Bill No. 1437 also 

added section 1170.95 to the Penal Code. (Stats. 2018, ch. 1015, 

§ 4.) As amended by Senate Bill No. 775, section 1170.95 permits 

a person who was convicted of murder or attempted murder 

under any theory of imputed malice, including the natural and 

probable consequences doctrine, but who could no longer be

convicted of murder or attempted murder due to Senate Bill No.

1437’s changes to the law, to petition the sentencing court to have 
6

the murder or attempted murder conviction vacated and to be 

resentenced on any remaining counts. (§ 1170.95, subd. (a); 

Stats. 2021, ch. 551, § 2.)

A section 1170.95 petition must contain the petitioner’s 

declaration that he or she is eligible for resentencing, the 

superior court case number and year of the relevant conviction, 

and an indication whether the petitioner requests the 

appointment of counsel. (§ 1170.95, subd. (b)(1).) After 

ascertaining that the petition contains the required information, 

the trial court must appoint counsel for the petitioner if he or she 

requested it. (§ 1170.95, subd. (b)(3).) The trial court then must 

allow the parties to file briefs and hold a hearing to determine 

whether the petitioner has made a prima facie showing of 

entitlement to relief. (§ 1170.95, subd. (c); Lewis, supra, 11 

Cal.5th at pp. 960-968.) “[A]t 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.’” 

(Lewis, supra, at p. 974, quoting People v. Drayton (2020) 47 

Cal.App.5th 965, 980.)

As the parties here both recognize, appellant’s petition 

contained all the information required by section 1170.95, 

subdivision (b)(1) and included a request for the appointment of 

counsel. Under Lewis and section 1170.95 as amended by Senate 

Bill No. 775, appellant accordingly was entitled to the 

appointment of counsel, the opportunity to brief any relevant 

issues, and a hearing at which his prima facie eligibility for relief 

is determined. The trial court erred in summarily dismissing his 

petition. 
7

Moreover, the error was not harmless; it is reasonably 

probable that appellant’s facially sufficient petition would not 

have been summarily denied if he had been afforded the 

assistance of counsel. (See Lewis, supra, 11 Cal.5th at pp. 972-

974.) We accordingly reverse the order summarily denying 

appellant’s petition and remand for the appointment of counsel 

and further proceedings consistent with section 1170.95, 

including the submission of briefing, a hearing to determine if a 

prima facie showing has been made, and, if such a showing is 

made, the issuance of an order to show cause. 

DISPOSITION 

The order summarily denying appellant’s petition for 

postconviction relief under section 1170.95 is reversed. The 

matter is remanded to the trial court with directions to appoint 

counsel for appellant, set a briefing schedule, and follow section 

1170.95’s further procedures for evaluating his petition for relief 

from his conviction for attempted murder.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.