Filed 2/10/22 P. v. Badillo CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

EMILIO CARRILLO 

BADILLO,

Defendant and Appellant.

 B309152

 (Los Angeles County

 Super. Ct. No. BA298295)

APPEAL from an order of the Los Angeles Superior Court, 

Steven D. Blades, Judge. Affirmed.

John Lanahan, under appointment by the Court of Appeal,

for Defendant and Appellant. 
2

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Daniel Chang and David A. Voet, Deputy 

Attorneys General, for Plaintiff and Respondent.

* * * * * *

Emilio Carrillo Badillo (defendant) argues that the trial 

court erred in denying his petition for resentencing under Penal 

Code section 1170.95.1 There was no prejudicial error, so we 

affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In 2006, defendant and his wife were walking along the 

side of a freeway interchange overpass after getting into a minor 

auto accident. Defendant’s wife was carrying their two-year-old 

daughter in her arms; she was also 22 or 23 weeks pregnant. 

There was more than a 30-foot drop to the road below the 

overpass. Without any warning, defendant shoved his wife 

toward the overpass’s railing. Caught off guard, the wife was 

unable to hold onto the toddler, who plummeted over the railing. 

Defendant pushed his wife a second time, and she tumbled over 

the railing to the road far below. The wife and daughter were 

injured, but survived. The fetus died. (People v. Badillo (Sept. 

29, 2009) B205547 [nonpub. opn.], at pp. 3-7.)

II. Procedural Background

A. Underlying conviction, sentence, and appeal

The People charged defendant with (1) the murder of the 

fetus (§ 187, subd. (a)), (2) the attempted premeditated murder of 

his wife (§§ 664, 187, subd. (a)), (3) the attempted murder of his 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

daughter (§ 187, subd. (a)), and (4) child abuse (§ 273a, subd. (a)).

The People further alleged the defendant personally inflicted 

great bodily injury on his wife and daughter. (§ 12022.7, subd. 

(d)). 

The matter went to trial. On the murder count, the jury 

was instructed that it could convict only if defendant acted with 

“malice aforethought,” which meant the intent to kill (“express 

malice”) or with consciousness disregard of how his actions are 

dangerous to life (“implied malice”). Because defendant acted 

alone, the jury was not instructed on the theories of felony 

murder (that is, a killing committed by someone else when a 

defendant and that person are committing a felony together) or 

natural and probable consequences (that is, a killing committed 

by someone else when a defendant is aiding and abetting some 

lesser crime). The jury convicted defendant of all charges and 

found true all allegations. The trial court sentenced defendant to 

two life sentences (for the second degree murder of the fetus and 

the attempted premeditated murder of his wife), plus 12 years 

(for the attempted murder of his daughter), but stayed the fouryear child abuse sentence under section 654. On appeal, we 

affirmed defendant’s convictions but remanded so that the trial 

court could impose a minimum sentence of 15 years to life for the 

second degree murder of the fetus. 

B. Petition for resentencing

In April 2020, defendant filed a form petition to vacate his 

second degree murder conviction under section 1170.95.2

2 Defendant did not seek resentencing on the attempted 

murder counts. Thus, the recent enactment of Senate Bill No. 

775 extending relief under section 1170.95 to the crime of 

attempted murder has no bearing on this appeal.
4

Without appointing counsel, the trial court summarily denied 

defendant’s petition, reasoning that the “undisputed facts” 

showed that defendant was not entitled to “relief as a matter of 

law” because he was “the actual killer and was convicted of 

murder on a theory of being the direct perpetrator[,] and not on a 

theory of felony murder or a theory of natural and probable 

consequences.” 

Defendant filed this timely appeal. 

DISCUSSION

Defendant argues that the trial court erred in summarily 

denying his section 1170.95 petition. Because our consideration 

of this argument involves questions of law and the application of 

that law to undisputed facts, our review is de novo. (Tsasu LLC 

v. U.S Bank Trust, N.A. (2021) 62 Cal.App.5th 704, 715.)

A person is entitled to relief under section 1170.95 if, as 

relevant here, (1) “[a] complaint, information, or indictment 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,” (2) he “was convicted of 

murder,” and (3) he “could not presently be convicted of murder 

because of changes to Section 188 or 189 made effective January 

1, 2019.” (§ 1170.95, subd. (a).) In January 2019, our Legislature 

amended section 188 to provide that “in order to be convicted of 

murder, a principal in a crime shall act with malice aforethought” 

and that “[m]alice shall not be imputed to a person based solely 

on his . . . participation in a crime.” (§ 188, subd. (a)(3).) Our 

Legislature’s purpose was to ensure that “[a] person’s culpability 

for murder [is] premised upon that person’s own actions and 

subjective mens rea.” (Stats. 2018, ch. 1015, § 1(g).) 
5

As a threshold matter, we conclude that the trial court 

erred in summarily denying defendant’s petition. In People v. 

Lewis (2021) 11 Cal.5th 952 (Lewis), our Supreme Court held 

that if a defendant files a facially compliant petition and requests 

the appointment of counsel, the trial court must appoint counsel 

and entertain further briefing regardless of whether the record of 

conviction unequivocally demonstrates that the defendant is not 

entitled to relief. (Id. at p. 964.) Here, defendant’s petition was 

facially compliant and he requested counsel. Thus, Lewis

dictates the conclusion that the trial court erred in summarily 

denying defendant’s petition. 

However, this finding of error is the first step, not the last. 

That is because Lewis went on to hold that an error in summarily 

denying a section 1170.95 petition is harmless unless the 

defendant can show “‘“it is reasonably probable that if [he or she] 

had been afforded assistance of counsel [and briefing] his [or her] 

petition would not have been summarily denied without an 

evidentiary hearing.”’” (Lewis, supra, 11 Cal.5th at p. 974.) 

We conclude that defendant was not prejudiced by the 

summary denial in this case because the record forecloses 

defendant’s entitlement to relief under section 1170.95 as a 

matter of law, such that the appointment of counsel and further 

briefing from that counsel would not have mattered. In assessing 

whether a defendant seeking relief under section 1170.95 has 

made out a prima facie case warranting an evidentiary hearing, a 

trial court must take the petition’s factual allegations as true and 

ask “‘whether the petitioner would be entitled to relief if [those] 

allegations were proved.’” (Lewis, supra, 11 Cal.5th at p. 971.) 

“‘However, if the record, including the court’s own documents 

[from the record of conviction] “contain[s] facts refuting the 
6

allegations made in the petition,” then “the court is justified in 

making a credibility determination adverse to the petitioner.”’” 

(Ibid.)

Defendant has not made the requisite prima facie showing 

of entitlement to relief under section 1170.95. This is true for two 

reasons. First, the record establishes as a matter of law that 

defendant was the actual killer. Defendant acted alone, so the 

jury’s guilty verdict necessarily constitutes a finding that he

committed the murder. Along the same lines, because the jury 

was never instructed on a natural and probable consequences 

theory or felony-murder theory, his murder conviction could not 

rest on either theory of vicarious liability; instead, the 

instructions only permitted the jury to convict based on 

defendant’s personal culpability. Second, the record establishes 

as a matter of law that defendant acted while personally 

harboring the necessary mens rea. Because the jury could convict 

defendant of murder only if it found that he personally acted with 

express or implied malice, its guilty verdict necessarily 

encompasses such a finding of personally harbored malice. 

Defendant offers two reasons why he was prejudiced by the 

trial court’s summary denial of his section 1170.95 petition.

First, he argues that the trial court’s denial of relief is

infected with legally invalid reasoning because, at one point, the 

court reasoned that defendant was not entitled to relief because 

we—in our prior appellate opinion—had found “sufficient 

evidence to convict [defendant]” of murder. Although the 

existence of sufficient evidence to support a murder conviction 

does not foreclose relief under section 1170.95 as a matter of law 

(see, e.g., People v. Harris (2021) 60 Cal.App.5th 939, 958, review 

granted April 28, 2021, S267802), any misstep in reasoning by 
7

the trial court in this case is of no concern because the trial 

court’s ruling is nevertheless correct for the reasons we set forth 

above (and which the trial court also cited). (Diaz v. Grill 

Concepts Services, Inc. (2018) 23 Cal.App.5th 859, 874 [“Because 

we review the trial court’s ruling and not its reasoning [citation], 

any missteps in its reasoning are irrelevant.”].) 

Second, defendant argues that we should hold this appeal 

to await the outcome of our Supreme Court’s review in People v. 

Strong (Dec. 18, 2020, C091162) (nonpub. opn.), review granted 

March 10, 2021, S266606. Strong has no effect on our reasoning. 

The issue in Strong is whether a murder conviction resting on a 

natural and probable consequences theory (for which section 

1170.95 relief is potentially available) is nevertheless ineligible 

for relief under section 1170.95 relief as a matter of law due to a 

jury’s finding of the special circumstance that the defendant 

acted with implied malice that was made before our Supreme 

Court tightened appellate review of that special circumstance in 

People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 

63 Cal.4th 522. Because, in this case, defendant’s jury was never 

presented with a theory of liability affected by section 1170.95, 

this case presents no issue of whether a jury finding can foreclose 

relief under such a theory. Hence, Strong is irrelevant.
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DISPOSITION

We affirm the order denying relief under section 1170.95.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ