Filed 2/16/22 P. v. Tapia CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ELIAS TAPIA, JR.,

Defendant and Appellant.

 B309407

 (Los Angeles County

 Super. Ct. No. NA025820-02)

APPEAL from an order of the Superior Court of Los 

Angeles County, James D. Otto, Judge. Remanded, with 

directions. 

Alan Siraco, 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, Senior 
2

Assistant Attorney General, Amanda V. Lopez and Chung L. 

Mar, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________

In 1997, defendant and appellant Elias Tapia, Jr. and codefendant Juan Valenzuela were convicted of the second degree 

murder of Norman LaGrone.

1 (Pen. Code, § 187, subd. (a).)2 The 

jury was instructed under CALJIC No. 3.02 that it could find 

Tapia guilty of murder as a natural and probable consequence of 

assault with a deadly weapon. Tapia was sentenced to 15 years 

to life in prison, plus a determinate term of 4 years. 

Tapia appeals the trial court’s order denying his petition for 

vacatur of his murder conviction and resentencing under Senate 

Bill No. 1437 and Penal Code section 1170.95, following a hearing 

held pursuant to section 1170.95, subdivision (d)(3). 

In his opening brief, Tapia contended that the trial court’s 

failure to follow the correct procedure and employ the correct 

standard of proof at his section 1170.95, subdivision (d)(3) 

hearing required reversal. 

The People responded that (1) the trial court acted as an 

independent fact-finder, as section 1170.95 requires, and (2) 

substantial evidence supports the trial court’s finding that Tapia 

acted with implied malice beyond a reasonable doubt. 

1 Tapia was also convicted of assault with a deadly weapon 

upon Oscar Thomas. (§ 245, subd. (a)(1).)

2 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

Alternatively, the People asserted that any alleged error was 

harmless.

On October 5, 2021, before the briefing was completed in 

this matter, the governor signed Senate Bill No. 775 (Stats. 2021, 

ch. 551, §§ 1–2) (Senate Bill 775) which, effective January 1, 

2022, amends section 1170.95. On November 10, 2021, Tapia 

moved for leave to file supplemental briefing on the effect of the 

new legislation, in light of the fact that his case would still be 

pending when the amendments to section 1170.95 became 

effective. We granted the motion and permitted the People to file 

supplemental briefing in response, if deemed necessary. The 

parties both filed briefs. They agree that Senate Bill 775 applies 

in Tapia’s case and that the trial court acts as a finder of fact who 

must determine whether the prosecution has met its burden 

beyond a reasonable doubt, but otherwise maintain their 

positions as set forth in the original briefing.

We conclude the record is ambiguous as to whether the 

trial court: acted as independent factfinder that determined

beyond a reasonable doubt Tapia is guilty of a still valid theory of 

murder; or, determined only that there is sufficient record 

evidence that would support a jury’s finding of guilt under 

current law. Because the trial court must act as an independent 

factfinder, we remand for the limited purpose of allowing the trial 

court to either clarify that it so acted, or for the trial court to 

redetermine the matter under the correct standard.

FACTS AND PROCEDURAL HISTORY

The Murder
4

Our prior unpublished opinion in People v. Tapia (Dec. 23, 

1998, B117471 (Tapia)), which is included in the appellate record, 

recites the facts as follows: 

“At about 1:30 a.m. on August 23, 1995, Kevin Moran and 

Norman LaGrone were talking outside a liquor store at the 

intersection of Anaheim and St. Louis Streets in Long Beach. 

[Codefendant] Valenzuela, Tapia and six to seven other Hispanic 

men approached Moran and LaGrone. Tapia was carrying a

baseball bat. Valenzuela said “I don’t like you, motherfucker” to 

LaGrone. Valenzuela slapped, and then punched, LaGrone.

Tapia hit Moran with the bat, knocking him to the ground.

Valenzuela took the bat from Tapia and hit LaGrone with it. 

LaGrone fell to the ground, and Valenzuela continued to hit him 

with the bat, and to kick him while Tapia kicked LaGrone in the 

face. Moran ran for help.

“Long Beach Police Officers David Hendricks and Brian 

Bell arrived at the scene at about 1:45 a.m. LaGrone was lying 

unconscious on the ground. There was blood and vomit on his 

face. His head was swollen to the size of a basketball. LaGrone 

was taken to St. Mary’s Hospital, where he died on September 25, 

1995. Dr. Eugene Carpenter, a medical examiner for the

coroner’s office, performed an autopsy and testified that blunt 

force trauma to the head, resulting in a brain fungus, was one of 

the causes of death.” (Tapia, supra, at *3–*4.)

Trial

At trial, the jury was instructed regarding implied and 

express malice murder, direct aiding and abetting, and murder as 

a natural and probable consequence of aiding and abetting an 
5

assault. The prosecutor argued all three theories of liability for 

murder in closing argument. 

The jury found Tapia guilty of second degree murder. 

Appeal

On appeal from the judgment after trial, defendants argued 

that insufficient evidence supported the jury’s finding that 

Valenzuela’s beating of LaGrone caused his death and its finding 

that the murder was a natural and probable consequence of 

assault with a deadly weapon. (Tapia, supra, B117471 at *2.)

Defendants also argued instructional error, abuse of discretion 

regarding the admission of gang evidence, and errors in the 

imposition of a parole revocation fine with respect to Tapia. 

(Ibid.) The court of appeal ordered that the abstract of judgment 

be modified to reflect the correct parole revocation fine, but 

otherwise affirmed the judgment. (Ibid.)

Section 1170.95 Petition

On February 19, 2019, Tapia filed a petition for 

resentencing under section 1170.95, claiming that he was 

convicted of second degree murder under a natural and probable 

consequences theory, and requesting counsel. The trial court 

appointed counsel and ordered briefing. On May 1, 2019, the 

People filed an opposition arguing that Senate Bill 1437 and 

section 1170.95 were unconstitutional. On August 26, 2019, the 

People filed a supplemental opposition arguing that, even if 

section 1170.95 were constitutional, Tapia was not entitled to 

relief because the evidence at trial clearly established that he 
6

personally murdered LaGrone and could be found guilty under 

the amendments effectuated by Senate Bill 1437. On November 

1, 2019, Tapia filed a reply arguing that the prosecution relied 

heavily on the natural and probable consequences doctrine of 

liability at trial and that there was insufficient evidence of intent 

to kill. On the same day, he filed a separate reply arguing that 

section 1170.95 was constitutional. 

At a hearing on the matter, the trial court found that Tapia 

had made a prima facie showing that he was entitled to relief.3

Tapia’s counsel argued that the prosecution had not met its 

burden of establishing that Tapia could still be convicted of 

murder because Tapia’s actions did not cause LaGrone’s death.4

The prosecution disagreed. Evidence had been presented 

that Tapia took the first swing with the bat and then the bat was 

passed to or taken by Valenzuela. As LaGrone lay on the ground, 

Tapia stomped on his face and kicked him in the head while 

Valenzuela hit him in the head with the bat. Both defendants 

3 Tapia’s counsel assumed by the time of the hearing that 

the court had already determined that Tapia had made a prima 

facie showing of entitlement to relief because the court appointed 

counsel. Counsel was prepared to argue at the hearing that the 

prosecution had not met its burden of establishing that Tapia 

could still be convicted of murder following the amendments to 

sections 188 and 189 beyond a reasonable doubt, as required by 

section 1170.95, subdivision (d)(3). Neither party complained 

that the trial court had not issued an order to show cause to set 

the subdivision (d)(3) hearing, and neither party requested a 

continuance.

4 At the hearing, the prosecutor conceded that section 

1170.95 is constitutional.
7

inflicted blunt force trauma, which was the cause of death. 

Kicking LaGrone in the face was evidence of Tapia’s intent to kill. 

The blows with the baseball bat, kicking, and stomping were 

concurrent causes of death. 

Tapia’s counsel responded that causation was at issue at 

trial and, as a result, the prosecution relied heavily on the 

natural and probable consequences doctrine. Counsel argued 

that the natural and probable consequences theory of liability 

was the only theory of murder the prosecution presented at trial. 

The prosecutor replied that, although Tapia could have 

been convicted under a natural and probable consequences theory 

of murder at trial, he could still be convicted of murder under the 

current laws. A beating of this nature was sufficient evidence of 

intent to kill. 

The court stated, “[T]he question is: is there sufficient 

evidence for him to be convicted without the natural and probable 

consequences [theory] beyond a reasonable doubt by a jury.” The 

court clarified that there is a distinction between the term

“natural and probable consequences” when used in regard to 

causation and “natural and probable consequences” as it relates 

to a theory of murder liability. Senate Bill 1437 only eliminates 

natural and probable consequences murder as a theory of murder 

liability. Although at trial, the jury was instructed with a 

natural and probable consequences instruction relating to 

murder, the prosecution had also presented “sufficient evidence” 

through Tapia’s actions that he possessed the intent to kill. In 

discussing the evidence, the trial court commented that Tapia 

“hit [LaGrone] in the head once with a baton [i.e., the bat], he 
8

then kicked him.”5 The trial court emphasized that the appellate 

court determined there was substantial evidence of causation. 

The court denied the petition, stating: “. . . I am convinced that 

beyond a reasonable doubt a jury could have found the defendant 

– would have found the defendant guilty of murder.” 

Tapia’s counsel clarified that he believed “[t]he case was 

not tried from an intent to kill perspective.” The trial court 

agreed, but explained, “[t]hat doesn’t mean there wasn’t evidence 

to convince a jury beyond a reasonable doubt that . . . the 

defendant would have been convicted of murder. And the 

petition is denied.”6 

Tapia timely appealed.

DISCUSSION

Senate Bill 775 is currently in effect. By its own terms, 

section 1170.95 applies to Tapia’s case. (§ 1170.95, subd. (a) 

5 We note that, while the evidence supports that Tapia did 

make the first strike with the bat, he struck the other victim, 

Moran, before Tapia handed the bat to Valenzuela. Valenzuela

used the bat on LaGrone while Tapia kicked and stomped 

LaGrone’s face and head. 

6 Despite the trial court’s statement to the contrary, the 

record demonstrates that Tapia was tried on the theories that he 

was a perpetrator and a direct aider and abettor, as well as under 

the natural and probable consequences doctrine. The jury was 

instructed under all three theories and the prosecutor argued all 

three theories to the jury at closing argument.
9

[persons convicted of murder under the natural and probable 

consequences doctrine may petition for resentencing].)

Pursuant to amended section 1170.95, an offender must file 

a petition in the sentencing court averring that: “(1) A complaint, 

information, or indictment was filed against the petitioner that 

allowed the prosecution to proceed under a theory of felony 

murder, 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, or 

attempted murder under the natural and probable consequences 

doctrine[;] [¶] (2) The petitioner was convicted of murder, 

attempted murder, or manslaughter following a trial or accepted 

a plea offer in lieu of a trial at which the petitioner could have 

been convicted of murder or attempted murder[;] [¶] [and] (3) The 

petitioner could not presently be convicted of murder or 

attempted murder because of changes to Section 188 or 189 made 

effective January 1, 2019.” (§ 1170.95, subds. (a)(1)–(3); see also 

§ 1170.95 subd. (b)(1)(A).) Additionally, the petition shall state 

“[w]hether the petitioner requests the appointment of counsel.” 

(§ 1170.95, subd. (b)(1)(C).)

“Upon receiving a petition in which the information 

required by this subdivision is set forth or a petition where any 

missing information can readily be ascertained by the court, if 

the petitioner has requested counsel, the court shall appoint 

counsel to represent the petitioner.” (§ 1170.95, subd. (b)(3).) 

The prosecutor shall file a response within 60 days of the service 

of the petition, and the petitioner may file a reply within 30 days 

of the response. (§ 1170.95, subd. (c).) When briefing has been 

completed, “the court shall hold a hearing to determine whether 

the petitioner has made a prima facie case for relief. If the 
10

petitioner makes a prima facie showing that the petitioner is 

entitled to relief, the court shall issue an order to show cause.” 

(Ibid.) Within 60 days of issuance of the order to show cause, the 

trial court shall hold a hearing “to determine whether the 

petitioner is entitled to relief.” (§ 1170.95, subd. (d)(1) & (3).) 

“[T]he burden of proof shall be on the prosecution to prove, 

beyond a reasonable doubt, that the petitioner is guilty of murder 

or attempted murder under California law as amended by the 

changes to Section 188 or 189 made effective January 1, 2019.” 

(§ 1170.95, subd. (d)(3).) The trial court acts as the finder of fact 

when determining whether the prosecution has met its burden

beyond a reasonable doubt. (See Ibid.; People v. Gentile (2020) 10 

Cal.5th 830, 855 [“section 1170.95 requires the superior court to 

determine on an individualized basis, after considering any new 

or additional evidence offered by the parties, whether the 

defendant is entitled to relief”].) 

Analysis

Tapia argues that the trial court employed an incorrect 

“substantial evidence” standard of proof based on its view of what 

a jury could find. He asserts that the court’s failure to follow the 

proper statutory procedure is reversible. Alternatively, Tapia

argues that (1) LaGrone’s murder was not overwhelmingly 

established by the evidence because causation was contested at 

trial, and (2) the judgment was based entirely on the natural and 

probable consequences theory of murder liability. The People 

contend the trial court followed the proper procedure and acted 

as an independent finder of fact, but even if the trial court erred, 

the error was harmless. 
11

On appellate review, we independently determine whether

the trial court applied the correct standard. (People v. Prunty

(2015) 62 Cal.4th 59, 71; People v. Drayton (2021) 47 Cal.App.5th 

965, 981, abrogated on another ground in People v. Lewis (2021) 

11 Cal.5th 952, 963.) Here, the trial court’s articulation of the 

standard of proof at the hearing was not consistent. Framing the 

issue at the outset, the trial court incorrectly referred to its 

inquiry in the section 1170.95, subdivision (d)(3) hearing as 

evaluating whether “there [is] sufficient evidence for [Tapia] to be 

convicted without the natural and probable consequences [theory] 

beyond a reasonable doubt by a jury.” Later, when announcing 

its ruling, the trial court stated: “. . . I am convinced that beyond 

a reasonable doubt a jury could have found the defendant –

would have found the defendant guilty of murder.” The earlier 

statement of the standard can be reasonably read to suggest that 

the trial court framed its decision as one calling for a review for 

substantial evidence, asking only whether the record evidence 

could support a jury’s finding of guilt. But the later statement 

can be read to suggest that the trial court expressed its own view

of the evidence (i.e., “I am convinced . . . beyond a reasonable 

doubt”) that a jury “would” convict Tapia. We are in equipoise as 

to the correct reading of the record.

The People contend that, even assuming the trial court 

erred by applying the wrong statutory standard, any error is

harmless “because the trial court would have denied [Tapia’s] 

petition under an independent factfinder standard in light of the 

overwhelming evidence that [he] acted with implied malice.” 

Tapia counters that the trial court’s failure to follow the proper 

statutory procedure and apply the correct standard of proof 

constitutes a miscarriage of justice regardless of whether the 
12

evidence against him was overwhelming because “‘the wrong 

entity judged the defendant guilty.’ (Rose v. Clark (1986) 478 

U.S. 570, 578.)” Given the ambiguity in the trial court’s 

statement of the standard it applied, which ambiguity arguably is 

compounded by the trial court’s misstatement about Tapia’s use 

of the bat (i.e., stating it was used on the murder victim LaGrone, 

when it had been used on victim Moran), we decline to resolve the 

parties’ differing approaches to prejudice and harmlessness. 

Rather, we remand the matter to the trial court either: to clarify

that it acted as an independent factfinder, and to affirm that the 

denial of the petition reflects its own view that the evidence 

presented at the section 1170.95, subdivision (d)(3) hearing 

proved Tapia’s guilt beyond a reasonable doubt; or alternatively, 

to rule on the petition as an independent factfinder in the first 

instance, based on the evidentiary record that was presented at 

the subdivision (d)(3) hearing.
13

DISPOSITION

We remand for the limited purpose of allowing the court 

either to clarify that it acted as an independent factfinder in 

denying appellant’s section 1170.95 petition, or to redetermine 

the matter under the correct standard.

MOOR, J.

We concur:

RUBIN, P.J.

KIM, J.