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Filed 1/21/22 P. v. Arenas CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CESAR SAUL ARENAS et al.,

Defendants and Appellants.

E074088

(Super.Ct.No. RIF1103487)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. 

Reversed and remanded with directions.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and 

Appellant Cesar Saul Arenas.

Rex Adam Williams, under appointment by the Court of Appeal, for Defendant 

and Appellant Eddie Gudino.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Julie L. Garland and Daniel Rogers, Assistant Attorney 
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General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff 

and Respondent.

Defendants and appellants Cesar Saul Arenas (Arenas) and Eddie Gudino (Gudino) 

pleaded guilty to attempted murder in 2011. In 2019, defendants petitioned the superior 

court to vacate their attempted murder convictions pursuant to Penal Code1former 

section 1170.95, a resentencing statute enacted as part of Senate Bill No. 1437 (2017-2018 

Reg. Sess.; Stats 2018, ch. 1015, § 4, eff. Jan. 1, 2019). In a nutshell, that bill limited the 

offense of murder under the felony-murder rule to defendants who: (1) are the actual 

killer; (2) are not the actual killer, but who share the killer’s intent to kill, and aid and abet 

in the killing; or (3) are a major participant in a felony and who act with reckless 

indifference to human life; and it eliminated the offense of murder under the natural and 

probable consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 846, 848.) The 

superior court granted the People’s motions to dismiss defendants’ petitions because, at 

that time, section 1170.95 did not expressly apply to the offense of attempted murder.

On appeal, defendants argued the reforms enacted by Senate Bill No. 1437 should 

necessarily apply to the offense of attempted murder under the natural and probable 

consequences doctrine because that offense is a lesser included offense of a completed 

murder under the natural and probable consequences doctrine. And, they contended

withholding the remedial effect of Senate Bill No. 1437 to attempted murderers violated 

the equal protection clauses of the federal and California constitutions. We affirmed the 

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 All further statutory references are to the Penal Code unless otherwise indicated.
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dismissal of defendants’ petitions because, like every other court to address those 

questions in a published decision, this court had soundly rejected defendants’ arguments.

The Supreme Court granted review on August 11, 2021. (People v. Arenas et al., 

S269232.) In the meantime, on October 5, 2021, the Governor signed into law Senate 

Bill No. 775 (2021-2022 Reg. Sess.) to amend section 1170.95 and clarify that relief may 

be available under that statute to persons convicted of attempted murder under the natural 

and probable consequences doctrine. (§ 1170.95, subd. (a), as amended by Stats. 2021, 

ch. 551, § 2, eff. Jan. 1, 2022.) On December 22, 2021, the Supreme Court transferred 

the matter back to this court with directions to vacate our original opinion and reconsider 

the cause in light of Senate Bill 775. We vacated our original opinion and directed the 

parties to file supplemental briefs addressing the effect of Senate Bill No. 775.

In their supplemental briefs, Arenas2 and the People, as represented by the 

Attorney General, agreed we must reverse the orders dismissing the defendants’ petitions 

and remand the matter for the trial court to determine, in the first instance, whether 

defendants made a prima facie showing of entitlement to relief under amended 

section 1170.95. We agree and so order.

I.

PROCEDURAL BACKGROUND

In 2011, the People filed a felony complaint charging defendants with two counts

of premeditated attempted murder and various additional offenses and sentencing 

2

 Gudino elected not to file a supplemental brief.
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allegations. As part of plea agreements with the prosecutor, defendants each pleaded 

guilty to one count of attempted murder without premeditation (§§ 187, subd. (a), 664, 

subd. (a), count 1), and to one count of actively participating in a criminal street gang 

(§ 186.22, subd. (a), count 9); and they both admitted the sentencing allegation that the 

attempted murder alleged in count 1 was committed with the specific intent to promote, 

further, and assist in the criminal activity of a criminal street gang (§ 186.22, subd. (a)). 

In addition, Gudino admitted the sentencing allegations that he personally and 

intentionally discharged a firearm and caused great bodily injury or death during the 

commission of the attempted murder alleged in count 1 (§§ 12022.53, subd. (d), 1192.7, 

subd. (c)(8)), and he admitted to having suffered one prior prison term (§ 667.5, 

subd. (b)).

The trial court sentenced Gudino on count 1 to state prison for the upper term of 

nine years; 10 years each for the gang and firearm enhancements, to be served 

consecutively with count 1; two years for count 9, to be served concurrently with count 1; 

and one year for the prison prior, for a total determinate term of 30 years. The court 

sentenced Arenas to state prison for the low term of five years on count 1; 10 years for 

the gang enhancement, to be served consecutively to with count 1; and two years for 

count 9, to be served concurrently with count 1, for a total determinate term of 15 years. 

At the prosecutor’s request, the court dismissed, in the interest of justice, the remaining 

counts and sentencing allegations in the complaint. (§ 1385.)

Gudino timely appealed, but this court affirmed the judgment when his attorney 

filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 and People v. Wende
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(1979) 25 Cal.3d 436, indicating he found no arguable issues of reversible error. (People 

v. Gudino (Sept. 20, 2012, E055749) [nonpub. opn.].) Arenas did not appeal.

Effective January 1, 2019, Senate Bill No. 1437 amended sections 188 and 189 

(Stats. 2018, ch. 1015, §§ 2, 3) to limit the application of the felony-murder rule to 

persons who: (1) are the actual killer; (2) are not the actual killer, but who share the 

killer’s intent to kill, and aid and abet in the killing; or (3) are a major participant in a 

felony and who act with reckless indifference to human life; and it eliminated the offense 

of murder under the natural and probable consequences doctrine. (§§ 188, subd. (a)(3), 

189, subd. (e)(1)-(3); People v. Gentile, supra, 10 Cal.5th at pp. 846, 848.) In addition, 

Senate Bill No. 1437 enacted former section 1170.95 (Stats. 2018, ch. 1015, § 4), which 

permitted persons previously convicted of first or second degree murder under the felonymurder rule or the natural and probable consequences doctrine, but who could not be so 

convicted after the amendments to sections 188 and 189 made by Senate Bill No. 1437, 

to petition the superior court to vacate their murder convictions and to resentence them on 

any remaining counts.

On March 22 and April 5, 2019, respectively, Gudino and Arenas filed petitions 

for resentencing pursuant to former section 1170.95. Notwithstanding the fact the People 

had charged them with attempted premeditated murder, and they had pleaded guilty to 

attempted murder without premeditation, using a check-box form, defendants alleged 

they had been charged with and pleaded guilty to first or second degree murder under the 

felony-murder rule or under the natural and probable consequences doctrine, but that they 

could no longer be convicted of murder under either theory.
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The district attorney filed oppositions requesting the superior court strike or deny 

the petitions on the ground Senate Bill No. 1437 was unconstitutional. In the alternative, 

the district attorney argued the superior court should summarily deny the petitions 

because defendants pleaded guilty to attempted murder and, therefore, they were not 

eligible for relief under former section 1170.95.

The superior court appointed counsel for defendants. Their attorneys filed 

oppositions to the district attorney’s motions to strike, arguing Senate Bill No. 1437 is 

constitutional. The attorneys did not address the district attorney’s alternative argument 

that defendants were ineligible for relief under former section 1170.95.

At a hearing on the petitions, the district attorney orally moved to dismiss

Arenas’s petition “because it does not involve murder. It’s only attempted murder.” The 

superior court noted that two appellate courts had recently held “attempted murder does 

not fall within the provisions of [former section] 1170.95,” and “both of them have dealt 

with the constitutionality of that.” Because the superior court believed it was “obliged to 

follow” those decisions, the court indicated it was inclined to grant the prosecutor’s 

motion to dismiss. Counsel for Arenas objected for the record, and the court dismissed 

the petition. Later, at the same hearing, the superior court granted the district attorney’s 

motion to dismiss Gudino’s petition for the same reason.3

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 The superior court did not rule on the constitutionality of Senate Bill No. 1437. 

Like every other appellate court to address that issue in a published decision, this court 

has since rejected the same constitutional arguments made by the prosecutor in this case. 

(People v. Johns (2020) 50 Cal.App.5th 46; People v. Lippert (2020) 53 Cal.App.5th 

304.) There is no dispute on appeal that the bill is constitutional, so we need not address 

the issue further.
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II.

DISCUSSION

On appeal, defendants argued formersection 1170.95 applied to the offense of 

attempted murder under the natural and probable consequences doctrine, and that 

excluding that offense would violate the equal protection clauses of the federal and 

California constitutions. Because this and every other court to address those questions in 

published decisions had held Senate Bill No. 1437 did not apply to final judgments for 

attempted murder, and the exclusion of attempted murder did not offend equal protection 

principles, we affirmed the dismissals.

As indicated, ante, while this appeal was pending in the Supreme Court, the 

Governor signed into law Senate Bill No. 775. In its uncodified statement of findings 

and declarations, the Legislature stated the bill “[c]larifies that persons who were 

convicted of attempted murder or manslaughter under a theory of felony murder and the 

natural probable consequences doctrine are permitted the same relief as those persons 

convicted of murder under the same theories.” (Stats. 2021, ch. 551, § 1, subd. (a).) The 

bill amended section 1170.95, subdivision (a), to provide: “A person convicted of felony 

murder or murder under the natural and probable consequences doctrine or other theory 

under which malice is imputed to a person based solely on that person’s participation in a 

crime, attempted murder under the natural and probable consequences doctrine, or 

manslaughter may file a petition with the court that sentenced the petitioner to have the 

petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be 
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resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a), italics added; as 

amended by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)

In his brief, Arenas argues the amendments made to section 1170.95 are 

ameliorative, apply retroactively to his petition, and we should reverse and remand the 

matter for the trial court to reconsider his petition. The People agree, stating: “In light of 

[Senate Bill. No.] 775, the parties should have the opportunity to brief [in the trial court] 

whether [defendants have] made the requisite prima facie showing” of entitlement to 

relief under section 1170.95. We too agree and so order.

III.

DISPOSITION

The orders dismissing defendants’ petitions are reversed. The matter is remanded 

for the trial court to determine whether defendants have made a prima facie showing of 

entitlement to relief under amended section 1170.95.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MILLER

J.