Filed 4/28/22 P. v. Parada CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

ALFREDO PARADA,

Defendant and Appellant.

 B311330

 (Los Angeles County

 Super. Ct. No. BA032211)

APPEAL from an order of the Superior Court of Los Angeles County, 

Kathleen Kennedy, Judge. Affirmed.

Janice Keiko Imata Blair, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Daniel 

C. Chang and Heidi Salerno, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

INTRODUCTION

Appellant Alfredo Parada appeals the denial of his petition for 

resentencing under Penal Code section 1170.95.1 He contends the trial court 

erred in finding that he failed to establish a prima facie case and therefore 

was ineligible for relief as a matter of law. We conclude that the trial court 

was entitled to rely on the record of conviction in denying the petition at the 

prima facie stage. Moreover, any error was harmless, because the jury 

instructions from the trial make clear that appellant’s convictions for murder 

and attempted murder were not based on theories of felony murder or 

natural and probable consequences. Consequently, he is ineligible for relief 

under section 1170.95. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Crime

The facts and procedural history of appellant’s crime are drawn from 

the opinion in the prior direct appeal by appellant and his co-defendant, 

Walter Hernandez, People v. Hernandez (Aug. 25, 1994, BA024449) [nonpub. 

opn.].

A. Evidence

On the afternoon of August 27, 1990, Lisa Ochoa and Evelyn Descali 

were walking home from school. The girls stopped near an El Pollo Loco 

restaurant on Vermont Avenue to talk to a friend, Julio Cabrera. Henry 

Pineda, Jose Cabrera, and Moises Lozano were standing nearby. Suddenly, 

one of the boys yelled a gang name, sounding like “Drifters,” and they started 

running. Pineda testified at trial that he and some friends from his gang, 

M.S., were on the corner of Olympic Boulevard and Vermont Avenue when he 

saw two guys coming toward him. He immediately started running because 

he was in his “enemies’ neighborhood.”

Ochoa testified that she heard two or three gunshots and ducked 

between some cars. When she looked up, she saw Hernandez putting 

something into the waistband of his pants. Descali suffered a fatal gunshot 

wound to her head. Meanwhile, Pineda, Lozano, and the Cabreras ran away 

1 All further statutory references are to the Penal Code unless 

otherwise indicated.
3

from the area. Julio Cabrera was shot in the back and sustained wounds 

through his lung. Jose Cabrera was shot in his left foot. 

Several days later, Ochoa identified a photograph of Hernandez as the 

man who shot Descali. At trial, she initially identified Hernandez as a 

shooter, but later stated she was “not sure.”

The manager of the El Pollo Loco testified that she heard gunshots, 

looked out the drive-through window, and saw appellant shooting a gun 

toward Vermont Avenue while Hernandez was “[l]ooking to the sides.” She 

saw both men run through the alley next to the restaurant. At trial, the 

manager identified both appellant and Hernandez as the men she had seen 

fleeing from the scene of the shooting. An employee working at a nearby 

clothing store testified that he also heard gunshots, looked out of the 

doorway, and saw Hernandez and appellant running to the El Pollo Loco 

parking lot. As Hernandez ran by, he shoved a silver gun into his waistband. 

About an hour after the shooting, Los Angeles Police Department 

officers saw appellant and Hernandez at an arcade that was a Drifters gang 

“stronghold.” The officers took Hernandez and appellant in a police vehicle to 

the crime scene. As they drove past the scene, appellant asked, “Was there a 

shooting here?” Both appellant and Hernandez were identified by several 

witnesses and were arrested. 

After his arrest, appellant made a telephone call from the police 

station. A police officer heard appellant say, “Pistola, hide it.”

Both Hernandez and appellant presented an alibi defense at trial. 

Appellant, who was 16 years old at the time of the shooting, testified that at 

the time of the shooting he was at someone’s home watching the “Gummi 

Bears” cartoon on television. The prosecution presented evidence that 

“Gummi Bears” was not on television at the day and time of the shooting. 

B. Conviction

On April 29, 1992, the jury convicted appellant of one count of second 

degree murder (§ 187, subd. (a)) and three counts of attempted murder as to 

Julio Cabrera, Jose Cabrera, and Henry Pineda2 (§§ 664, 187, subd. (a)). As 

2 Appellant’s opening brief on appeal states that he was convicted of 

only two counts of attempted murder instead of three. The prosecution made 
4

to all four counts, the jury found true the allegation that appellant personally 

used a firearm (§ 12022.5). In addition, as to two of the attempted murder 

counts, the jury found true the allegation that appellant personally and 

intentionally inflicted great bodily injury on the victim (§ 12022.7).3

In December 1992, the court sentenced appellant as follows: fifteen 

years to life in state prison on count one (murder), plus four years for the 

firearm enhancement; a consecutive term of seven years on count two 

(attempted murder of Julio Cabrera), plus three years for the bodily injury 

enhancement; a consecutive term of 28 months on count three (attempted 

murder of Jose Cabrera), plus one year for the bodily injury enhancement; 

and a consecutive term of 28 months on count four (attempted murder of 

Pineda). The court stayed terms for the firearm enhancements on the 

attempted murder counts. 

C. Direct Appeal

Appellant and Hernandez appealed their convictions. After counsel for 

appellant filed an opening brief that raised no issues, appellant submitted a 

letter challenging several items of evidence and arguing that the evidence 

was insufficient to support his conviction. We rejected appellant’s 

contentions, noting that the evidence supporting his conviction was 

“overwhelming” and the record did not support his other claims. We further 

found after a review of the entire record that no arguable issues existed 

pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. We therefore 

affirmed appellant’s conviction. 

II. Resentencing Petition 

A. Petition and Briefing 

On March 22, 2019, appellant filed a form petition for resentencing 

under section 1170.95. The trial court appointed counsel for appellant and 

directed the prosecution to respond to appellant’s petition. 

the same statement in its opposition brief below. However, the record before 

us—including verdict forms, the transcript of the sentencing hearing, and the 

prior appellate opinion—demonstrates that appellant was convicted on three 

counts of attempted murder. 

3 Pineda, the victim on the third attempted murder count, was not 

injured and the verdict form for that count did not include the allegation 

regarding bodily injury. 
5

In its opposition, the prosecution argued that appellant was ineligible 

for relief under section 1170.95 because he was a direct aider and abettor in 

the murder and attempted murders of which he was convicted and was not 

convicted under the felony murder rule. Citing our appellate opinion, which 

it attached as an exhibit, the prosecution argued that appellant was “an 

actual shooter who acted with the intent to kill.” The prosecution also noted 

the jury’s findings that appellant personally used a firearm and personally 

and intentionally inflicted great bodily injury in two of the attempted murder 

counts.4 The prosecution also attached as exhibits the verdict forms and the 

transcript of the sentencing hearing. 

In his reply, appellant argued that he had made a prima facie showing 

of eligibility by filing a “properly completed 1170.95 petition and declaration”

and “based on the entire record of conviction.” Appellant attached as an 

exhibit a single page of reporter’s transcript, purportedly from the 

prosecution’s closing argument at trial. Therein, the prosecutor argued that 

if the jury could not determine which of the two defendants shot Descali, “the 

law covers that too. . . . [W]hen a principal is liable for the action of someone 

he aids and abets.”

B. Hearing 

On October 9, 2020, the court found appellant had made a prima facie 

showing of eligibility and issued an order to show cause. Appellant 

subsequently waived his appearance for the resentencing hearing. At a 

status hearing on January 15, 2021, the prosecution provided additional 

exhibits to the court, including transcripts from the prior appeal and the 

complete jury instructions. The jury was not instructed on felony murder or 

the natural and probable consequences doctrine. Appellant did not submit 

any further evidence. 

The court heard appellant’s petition on February 8, 2021. The 

prosecution argued that “although we are at OSC, the lower threshold of even 

a prima facie case hasn’t been met. Now that the record is before the court, it 

shows that the jury wasn’t instructed on either the natural and probable 

consequences doctrine or the felony murder rule. So 1170.95 is not 

4 The prosecution also argued that the statute was unconstitutional, 

but later withdrew that contention. 
6

applicable.” Appellant’s counsel responded that he had set forth his position 

in his briefing and had “nothing further to add. The court has the record.”

The court denied the petition, stating, “[T]his is one of those cases that 

I think came up while we were on lockdown. . . . When I was working from 

home for a few months earlier this year, I didn’t have access to court files. 

And so I just appointed counsel on cases that, if I had a chance to review the 

court file, [I] would not have. Because I don’t think that this falls within 

1170.95 after reviewing all the materials, including the jury instructions that 

were submitted by counsel from the trial itself, as well as, I think there was a 

copy of the appellate opinion.” The court thus found that appellant had not 

established a prima facie case for relief. Appellant timely appealed. 

DISCUSSION

I. Senate Bill 1437 and Section 1170.95 

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘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.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)”

(People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) “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 file a 

petition seeking resentencing.5 (Ibid., citing People v. Gentile (2020) 10 

Cal.5th 830, 838-839.) A facially adequate petition entitles a petitioner to the 

appointment of counsel and a response from the prosecution. (§ 1170.95, 

subds. (b)(1), (c); Lewis, supra, 11 Cal.5th at p. 970.) 

With the benefit of the parties’ briefing, “the court proceeds to 

subdivision (c) to assess whether the petitioner has made ‘a prima facie 

showing’ for relief. (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at p. 

5 Senate Bill No. 775 (Stats. 2021, ch. 551), effective January 1, 2022, 

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).)
7

960.) “[T]he ‘prima facie bar was intentionally and correctly set very low.’”

(Id. at p. 972.) “[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.’” (Id. at p. 974, quoting People v. Drayton (2020) 47 Cal.App.5th 

965, 980 (Drayton).) “‘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.”‘“ (Lewis, supra, 11 Cal.5th at p. 971, quoting Drayton, supra, 

47 Cal.App.5th at p. 979.) As amended by Senate Bill 775, section 1170.95, 

subdivision (c) provides, in pertinent part: “If the court declines to make an 

order to show cause, it shall provide a statement fully setting forth its 

reasons for doing so.” (Stats. 2021, ch. 551, § 2; § 1170.95, subd. (c).) 

If the court determines that the petitioner has made a prima facie 

showing for relief, it must issue an order to show cause. (§ 1170.95, subd. (c); 

Lewis, supra, 11 Cal.5th at p. 971.) The court must then hold an evidentiary 

hearing to determine whether to vacate the murder conviction (§ 1170.95, 

subd. (d)(1)), at which “[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)). 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.” (§ 1170.95, subd. 

(d)(3).)

II. Analysis

Appellant argues the trial court improperly denied his petition at the 

prima facie stage after reviewing the underlying record of conviction and 

finding he was precluded from relief as a matter of law. “This is a purely 

legal conclusion, which we review de novo.” (See People. v. Murillo (2020) 54 

Cal.App.5th 160, 167-168, review granted Nov. 18, 2020, S264978; People v. 

Turner (2020) 45 Cal.App.5th 428, 435.)

A defendant is ineligible for relief as a matter of law where the record 

conclusively shows that the jury actually relied upon—and the defendant’s 

murder or attempted murder conviction actually rests upon—a theory of 

liability that is unaffected by section 1170.95 (that is, on the theory that the 
8

defendant was the actual shooter or directly aided and abetted the shooter). 

(§ 1170.95, subd. (a)(3); see also People v. Nguyen (2020) 53 Cal.App.5th 1154, 

1157, 1167-1168 [petitioner not entitled to relief where he was convicted as 

direct aider and abettor].) As part of the record of conviction, the trial court 

may consider the prior appellate opinion, jury instructions, verdict form(s), 

and any special findings or enhancement allegations the jury found true to 

determine if the petition makes a prima facie showing of entitlement to relief. 

(Lewis, supra, 11 Cal.5th at p. 957; People v. Duchine (2021) 60 Cal.App.5th 

798, 815; see also People v. Jenkins (2021) 70 Cal.App.5th 924, 935; People v. 

Soto (2020) 51 Cal.App.5th 1043, 1055 (Soto) [the trial court may “rely on the 

jury instructions, which are part of the record of conviction, in assessing the 

prima facie showings under section 1170.95(c)”], overruled on another ground 

by Lewis, supra, 11 Cal.5th at p. 957; People v. Daniel (2020) 57 Cal.App.5th 

666, 677 (Daniel) [court may consult the jury instructions], review granted 

Feb. 24, 2021, S266336, review dismissed December 1, 2021.) 

Here, the jury instructions conclusively demonstrate appellant is 

ineligible for relief. Where “no instructions were given on felony murder or 

murder under the natural and probable consequences doctrine,” the 

defendant is “not ‘[a] person convicted of felony murder or murder under a 

natural and probable consequences theory,’ and he is therefore ineligible for 

relief as matter of law.” (Daniel, supra, 57 Cal.App.5th at p. 677; see also 

Soto, supra, 51 Cal.App.5th at p. 1059 [“Soto did not make a prima facie 

showing that he is entitled to relief under section 1170.95 because the jury 

instructions given at his trial conclusively demonstrate as a matter of law 

that he was not convicted of murder under a natural and probable 

consequences theory or of felony murder”]; People v. Tarkington (2020) 49 

Cal.App.5th 892, 899, overruled in part on another ground by Lewis, supra, 

11 Cal.5th at pp. 962-963 [record showed defendant was the actual killer 

where jury instructions did not include any instruction on natural and 

probable consequences or felony murder and the jury found the defendant 

personally used weapon]; People v. Edwards (2020) 48 Cal.App.5th 666, 674-

675, overruled in part on another ground by Lewis, supra, 11 Cal.5th at pp. 

962-963 [absence of jury instructions on felony murder or natural and 

probable consequences doctrine justified summary denial of petition].)
9

Appellant does not dispute that the trial court was entitled to consider 

the record of conviction at the prima facie stage. Instead, he contends that 

the record of conviction “does not conclusively establish as a matter of law”

that he was ineligible and that the court improperly “evaluated and weighed 

the evidence.”

While we agree that weighing the evidence and factfinding are 

impermissible at the prima facie stage (see Lewis, supra, 11 Cal.5th at pp. 

970-972), we reject appellant’s argument that the court did so here. Instead, 

the record of conviction shows that appellant was not convicted of murder or 

attempted murder under a felony murder or natural and probable 

consequences theory. In addition to the fact that the jury was not instructed 

on those theories, the jury found that appellant had personally used a 

firearm as to all four counts and had personally and intentionally inflicted 

great bodily injury on the two attempted murder victims who sustained 

gunshot wounds. As such, the jury necessarily concluded that appellant 

acted as the shooter and/or directly aided and abetted the murder and 

attempted murders. (See, e.g., People v. Tarkington, supra, 49 Cal.App.5th at 

p. 899 [finding as a matter of law that the defendant was the actual killer 

including because of the “jury’s finding that Tarkington personally used a 

deadly and dangerous weapon”]; People v. Verdugo (2020) 44 Cal.App.5th 

320, 330, overruled on another ground by Lewis, supra, 11 Cal.5th at pp. 962-

963 [“The record of conviction might also include other information that 

establishes the petitioner is ineligible for relief as a matter of law . . . for 

example, a petitioner who . . . was found to have personally and intentionally 

discharged a firearm causing great bodily injury or death in a single victim 

homicide”].) Appellant points to no evidence suggesting otherwise. The 

record thus established appellant’s ineligibility for relief as a matter of law 

and the trial court did not err in denying appellant’s petition without holding 

the full order to show cause hearing.

Appellant also contends that the trial court erred because it did not 

clearly indicate that it was relying on the jury instructions or other evidence 

as the basis for its ruling. As such, he argues that the court failed to “provide 

a statement fully setting forth its reasons” for declining to issue an order to 

show cause, as required under the newly amended section 1170.95, 
10

subdivision (c). We are not persuaded. The trial court specifically referred to 

the jury instructions in concluding that appellant had not met his burden to 

make a prima facie showing, and explained that the court had not been able 

to review the record when making the original prima facie finding. Even 

assuming that the court’s statements on the record were inadequate, the 

error was harmless because the record of conviction, including the jury 

instructions, shows appellant was ineligible for relief under section 1170.95

as a matter of law.

Under the harmless error standard, a section 1170.95 petitioner must 

“‘demonstrate there is a reasonable probability that in the absence of the 

error he . . . would have obtained a more favorable result.’ [Citations.]”

(Lewis, supra, 11 Cal.5th at p. 974.) Appellant cannot meet this burden. 

Section 1170.95 applies to “[a] person convicted of felony murder or murder 

under a natural and probable consequences theory.” (§ 1170.95, subd. (a).) 

On his section 1170.95 petition, appellant checked the box stating, “At trial, I 

was convicted of 1st or 2nd degree murder pursuant to the felony murder rule 

or the natural and probable consequences doctrine.” However, he does not 

dispute that his jury was not instructed on felony murder or the natural and 

probable consequences doctrine. Thus, appellant cannot demonstrate that 

absent any error, there is a reasonable probability that the trial court would 

have found a prima facie case for relief.

DISPOSITION

The order denying appellant’s section 1170.95 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J. WILLHITE, J.