Filed 8/13/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and 

Respondent,

v.

PATRICK JAMES SANTOS,

Defendant and 

Appellant.

 B299844

 (Los Angeles County

 Super. Ct. No. BA233758)

APPEAL from an order of the Superior Court of Los 

Angeles County, George G. Lomeli, Judge. Reversed and 

remanded.

Allen G. Weinberg, under appointment by the Court of 

Appeal, for Defendant and Appellant.

* Pursuant to California Rules of Court, rules 8.1100 

and 8.1110, this opinion is certified for publication with the 

exception of parts II.A and II.B.
2

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey, 

Senior Assistant Attorney General, Charles S. Lee and John 

Yang, Deputy Attorneys General, for Plaintiff and 

Respondent.

__________________________

Defendant and appellant Patrick James Santos appeals 

from a postjudgment order denying his petition for 

resentencing pursuant to Penal Code section 1170.951 and 

Senate Bill No. 1437 (Senate Bill 1437). As relevant here, 

the statute and Senate bill provide for vacatur of a 

defendant’s murder conviction and resentencing if the 

defendant was convicted of felony murder and the defendant 

(1) was not the actual killer, (2) did not act with the intent to 

kill, and (3) was not a major participant who acted with 

reckless indifference to human life. (§ 189, subd. (e)(3).)

Santos contends the judge erred by ruling on the 

petition although he was not the judge who sentenced Santos

in the underlying matter, and by summarily denying 

Santos’s petition because (1) Senate Bill 1437 and section 

1170.95 are unconstitutional, and (2) Santos failed to make a 

prima facie showing of eligibility.

The People agree that section 1170.95 and Senate Bill 

1437 are not unconstitutional and that Santos made a prima 

facie showing of eligibility for resentencing, but argue that 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

1170.95 does not require the original sentencing judge to 

rule on the petition.

We reverse and remand for further proceedings 

consistent with section 1170.95 and this opinion.

I. PROCEDURAL HISTORY2

A. Murder Conviction

In 2005, Santos was convicted of first degree murder

under a felony murder theory of liability. (§ 187, subd. (a).) 

The jury found true firearm allegations (§ 12022.53, subds. 

(b)–(e)), and the allegation that Santos committed the crime 

for the benefit of a criminal street gang (§ 186.22, subd. 

(b)(1)). On November 1, 2005, Judge Michael Pastor

sentenced Santos to a term of 25 years to life in prison, plus 

a consecutive 25-year-to-life term for the firearm 

enhancement.

We affirmed the conviction in People v. Santos (2007) 

147 Cal.App.4th 965.

2 We do not include a recitation of the underlying facts 

of the offense, as the facts are not necessary to our resolution 

of the issues.
4

B. Section 1170.95 Petitions for Resentencing

1. First Petition for Resentencing

On January 2, 2019, Santos petitioned for resentencing 

under section 1170.95. He declared that he met all of the 

requirements for section 1170.95 and was eligible for relief. 

Santos further declared that he was not a “major 

participant” in the murder and did not act with “reckless 

indifference.” He requested that counsel be appointed to 

him.

On March 1, 2019, the People opposed the petition.

On March 11, 2019, the People obtained a continuance 

to May 2, 2019.

On March 27, 2019, outside the presence of the parties, 

Judge George Lomeli of Department 107 denied the petition 

by written order, finding “[f]rom review of the overall record” 

that Santos was a major participant who acted with reckless 

indifference for human life, and therefore ineligible for 

resentencing. As an independent ground for denial, Judge 

Lomeli found that Senate Bill 1437 was unconstitutional

because it impermissibly amended voter initiatives 

Proposition 7 and Proposition 115, violated Article 1, section 

28, subdivision (a)(6) and Article 1, section 29 of the 

California Constitution, and violated the California 

separation of powers doctrine.3

3 The court appointed counsel, but counsel had not filed 

a reply at the time Judge Lomeli issued the ruling.
5

2. Second Petition for Resentencing

On April 23, 2019, Santos, with the assistance of

counsel, filed a second petition for resentencing, and then a 

memorandum of points and authorities, on May 28, 2019, in 

Department 110, where Judge Pastor (the original 

sentencing judge) was assigned. Counsel argued that the 

first petition was not properly before Judge Lomeli, as 

section 1170.95, subdivision (b)(1) requires that the petition 

be ruled upon by the sentencing judge if that judge is 

available. Judge Pastor had sentenced Santos and was not 

unavailable.

On June 11, 2019, Judge Lomeli advanced the matter 

and denied the second petition for resentencing outside the 

presence of counsel for the reasons stated in the March 27, 

2019 denial, and also found that the “original petition was 

indeed heard before ‘the court that sentenced the petitioner,’ 

specifically Department 107, and further, that the 

supervising judge has designated the bench officer presently 

in that department to rule on the petition as provided for

under Penal Code section 1170.95 (b)(1).”4

4 We understand the court’s ruling to state the 

presiding judge’s designation of the case to Judge Lomeli’s 

department was made based upon an interpretation of the 

statute that cases must go to the department where the 

conviction occurred; the designation was not based upon 

Judge Pastor’s unavailability.
6

Counsel requested to address the court, and he was 

permitted to do so in a hearing on July 2, 2019. At the 

hearing, counsel argued that the plain language of a portion 

of section 1170.95, subdivision (b)(1)—“If the judge that 

originally sentenced the petitioner is not available to 

resentence the petitioner, the presiding judge shall designate 

another judge to rule on the petition”—meant that the 

presiding judge must assign the original sentencing judge to 

rule on the matter unless that judge was unavailable. 

Counsel argued that Judge Pastor was right down the 

hallway in Department 110, and therefore available to rule 

on the petition. The court reiterated and adopted its March 

23, 2019 ruling and stated that “[f]ollowing careful 

consideration of the language contained in the underlying 

statute, this court is of the opinion that the original petition 

was indeed heard as the statute provides by the court that 

sentenced the petitioner, Department 107, which is Judge 

Pastor’s former court.” The court added that “[t]he 

Supervising Judge of the Los Angeles Superior Court 

Criminal Division has designated this bench officer, this 

court, presently presiding in Department 107 to rule on the 

petition as provided for under the Penal Code.”

II. DISCUSSION

On appeal, the parties agree that Senate Bill 1437 and 

section 1170.95 are not unconstitutional and do not violate 

the separation of powers doctrine. The parties also agree 
7

that Santos “made a prima facie showing that [he] falls 

within the provisions of . . . section [1170.95].” The only 

point of disagreement is whether the court also erred in 

assigning the matter to Judge Lomeli, rather than Judge 

Pastor, and whether, on remand, section 1170.95 requires 

that the case be heard by the court that sentenced Santos, or 

by the judge who sentenced him.

We agree with the parties that the trial court erred in 

denying Santos’s petition based on the constitutional 

challenges to Senate Bill 1437 and section 1170.95 and on 

the the merits of Santos’s petition. Further, we interpret the 

statute to require the judge who originally sentenced the 

petitioner to rule on the petition, unless that judge is 

unavailable. (§ 1170.95, subd. (b)(1).) Here, the record 

contains no evidence that Judge Pastor was unavailable. We 

therefore reverse and remand for further proceedings 

consistent with this opinion.

A. Constitutionality

The trial court denied Santos’s petition on the grounds 

that Senate Bill 1437 was unconstitutional because it 

impermissibly amended voter initiatives Proposition 7 and 

Proposition 115; violated Article 1, section 28, subdivision 

(a)(6), and Article 1, section 29 of the California 

Constitution; and violated the California separation of 

powers doctrine.
8

We agree with the parties that this was error. 

Multiple courts of appeal have held that Senate Bill 1437 is 

not unconstitutional for any of these reasons, and we know 

of no court that has diverged from these cases. (People v. 

Nash (Aug. 3, 2020, F079509) ___Cal.App.5th ___ [2020 WL 

4461245]; People v. Superior Court of Butte County (2020) 51

Cal.App.5th 896; People v. Lopez (2020) 51 Cal.App.5th 589; 

People v. Alaybue (2020) 51 Cal.App.5th 207; People v. Johns

(2020) 50 Cal.App.5th 46; People v. Bucio (2020) 48 

Cal.App.5th 300; People v. Solis (2020) 46 Cal.App.5th 762, 

774–780; People v. Cruz (2020) 46 Cal.App.5th 740, 753–759; 

People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 

280–284; People v. Lamoureux (2019) 42 Cal.App.5th 241, 

250–251.) We concur with the results reached in these 

cases, and as the parties are also in agreement, we do not 

address the issue further here.

B. Merits 

Through section 1170.95, Senate Bill 1437 created a 

petitioning process by which a defendant convicted of 

murder under a felony murder theory of liability could 

petition to have his conviction vacated and be resentenced. 

Section 1170.95 initially requires a court to determine 

whether a petitioner has made a prima facie showing that he 

or she falls within the provisions of the statute as set forth in 

subdivision (a), including that “(1) [a] complaint, 

information, or indictment was filed against the petitioner 
9

that allowed the prosecution to proceed under a theory of 

felony murder or murder under the natural and probable 

consequences doctrine[,] [¶] (2) [t]he petitioner was convicted 

of first degree or second degree murder following a trial or 

accepted a plea offer in lieu of a trial at which the petitioner 

could be convicted for first degree or second degree murder[, 

and] [¶] (3) [t]he petitioner could not be convicted of first or 

second degree murder because of changes to Section 188 or 

189 made effective January 1, 2019.” (See § 1170.95, subd. 

(c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review 

granted Mar. 18, 2020, S260493 (Verdugo).) If it is clear 

from the record of conviction that the petitioner cannot 

establish eligibility as a matter of law, the trial court may 

deny the petition.5 (Verdugo, supra, 44 Cal.App.5th at 

p. 330.) Determinations of eligibility that require an 

assessment of the evidence concerning the commission of the 

petitioner’s offense, however, mandate that the trial court 

appoint counsel and permit the filing of the submissions 

contemplated by section 1170.95. (Id. at p. 332; Lewis, 

5 For example, if the jury was not instructed on a 

natural and probable consequences or felony murder theory 

of liability, the petitioner could not demonstrate eligibility as 

a matter of law because relief is restricted to persons 

convicted under one of those two theories. (See People v. 

Lewis (2020) 43 Cal.App.5th 1128, 1138–1139, review 

granted Mar. 18, 2020, S260598 (Lewis) [appellate court 

opinion holding that jury convicted defendant of murder as a 

direct aider and abettor barred defendant from relief as a 

matter of law].)
10

supra, 43 Cal.App.5th at p. 1140.) “If the petitioner makes a 

prima facie showing that he or she is entitled to relief, the 

court shall issue an order to show cause.” (§ 1170.95, subd. 

(c).)

In this case, prior to briefing by petitioner’s counsel, 

the trial court concluded that “the overall record” precluded 

Santos from showing that he was not a major participant in 

the robbery and did not act with reckless indifference to 

human life. We conclude the record provides no basis for 

such a determination as a matter of law. Where a petitioner 

is not ineligible as a matter of law, the court is not permitted 

to deny the petition based upon an analysis of the facts until 

the petitioner has had an opportunity to reply to the People’s 

response, with the aid of counsel if requested. (People v. 

Smith (2020) 49 Cal.App.5th 85, 95, review granted July 22, 

2020, No. S262835.) This is because “[the] factual record is 

not the only consideration that the trial court must take into 

account for purposes of section 1170.95. Where the record of 

conviction does not preclude a petitioner from making a 

prima facie showing that he falls within the statute’s 

provisions as a matter of law, the petitioner is not confined

to presenting evidence contained in the record of conviction

in seeking relief. Section 1170.95 provides ‘the petitioner 

may rely on the record of conviction or offer new or 

additional evidence to meet [his] burden[].’ (§ 1170, subd. 

(d)(3).)” (Ibid.)

Because neither of the trial court’s reasons for denying 

Santos’s petition is valid, and it does not appear that he is 
11

otherwise ineligible for relief as a matter of law, we conclude 

that the trial court erred in summarily denying the petition.

C. Original Sentencing Judge

The parties’ only points of disagreement arise from the 

following language in section 1170.95, subdivision (b)(1):

“The petition shall be filed with the court that 

sentenced the petitioner . . . . If the judge that originally 

sentenced the petitioner is not available to resentence the 

petitioner, the presiding judge shall designate another judge 

to rule on the petition.” (Italics added.)

The parties deem two terms to be of critical 

importance—“judge” and “available.” Our inquiry focuses 

principally on the first of these terms, however, as this was 

the basis for the trial court’s denial. The court interpreted 

the term “judge” to mean “court,” and concluded that the 

matter had been assigned to the same “judge” (a.k.a. “court”)

that had sentenced Santos—Department 107. The People 

argue that the trial court’s interpretation was correct: 

section 1170.95, subdivision (b)(1) requires that a petition be 

heard by the judge presiding in the Department where the

petitioner had previously been sentenced, regardless of 

whether that judge was the same person who sentenced the 

petitioner. Santos argues that “judge” means the individual 
12

judge who originally sentenced him. We believe that Santos 

has the better view.6

“We conduct a de novo review of questions of statutory 

interpretation. [Citation.] The fundamental task of

statutory interpretation is to determine the Legislature’s 

intent so as to effectuate the law’s purpose. [Citation.] ‘We 

begin with the statute’s text, assigning the relevant terms 

their ordinary meaning, while also taking account of any 

related provisions and the overall structure of the statutory 

scheme. [Citation.] Essential is whether our interpretation, 

as well as the consequences flowing therefrom, advances the 

Legislature’s intended purpose. [Citation.]’ [Citation.] 

‘“Ordinarily, where the Legislature uses a different word or 

phrase in one part of a statute than it does in other sections 

or in a similar statute concerning a related subject, it must 

be presumed that the Legislature intended a different 

meaning. [Citation.]” [Citation.]’ [Citation.]” (People v. 

White (2016) 3 Cal.App.5th 433, 446–447.)

We begin by considering the ordinary meaning of the 

language of section 1170.95, subdivision (b)(1). The 

Merriam-Webster Dictionary defines “judge” as “a public 

official authorized to decide questions brought before a

6 Both parties focus their arguments on People v. 

Rodriguez (2016) 1 Cal.5th 676 (Rodriguez), but in that case 

the Supreme Court did not consider whether the term 

“judge” meant “judge” or “court”; there it was presumed by 

the court and the parties that the word “judge” meant the 

public official and not the tribunal.
13

court.” (Merriam-Webster <http://www.merriamwebster.com> [as of July 24, 2020].) It defines “court” as “a 

place (such as a chamber) for the administration of justice.” 

(Ibid.) The term “court” can also mean “a judge or judges in 

session.” (Ibid.) The dictionary does not contain a definition 

of “judge” that includes the tribunal. Accordingly, the plain 

language of the statute leads us to conclude that “judge” 

means the public official.

Additionally, section 1170.95, subdivision (b)(1) 

employs both the term “court” and the term “judge”. 

Following the canons of statutory construction, we assume 

that the Legislature intended the terms to have separate 

meanings. Both words may be used to indicate an individual 

public official in the judiciary, but only “court” may be used 

to indicate the tribunal. To give the terms distinct 

meanings, we necessarily conclude that the Legislature 

intended that “court” refer to the tribunal and “judge” refer 

to the public official. We find no merit in the People’s 

argument that the requirement that the petition be filed

with the original sentencing court indicates that the 

Legislature was referring to the court that sentenced 

petitioner later in the subdivision when it used the word 

“judge.” The requirements are distinct and directed to 

different individuals: The statute directs the petitioner to 

file the petition with the original sentencing court; the 

statute directs the presiding judge of the sentencing court to 

designate the judge who sentenced petitioner to rule on the 

filed petition, unless that judge is not available.
14

Finally, the literal meaning of the word “judge” is 

compatible with the purpose of Senate Bill 1437, which “was 

enacted[, in part] to correct the unfairness of the felony 

murder rule . . . .” (People v. Cervantes (2020) 44 

Cal.App.5th 884, 887.) We reject the People’s contention 

that “the original sentencing judge’s familiarity with the 

underlying facts is of marginal importance” and “has no 

import to” a petitioner’s resentencing. In many cases, 

including this one, the resentencing court may need to 

determine whether the petitioner was a “major participant” 

in the underlying felony that resulted in murder, and 

determine whether the petitioner acted with “reckless 

indifference to human life” in commission of the crime. 

Although both the petitioner and the prosecution are 

permitted to present additional evidence beyond that 

introduced at the time of conviction, a judge who is familiar 

with the facts, evidence, and law already part of the record is 

better equipped to rule on a petition than a different judge, 

unfamiliar with the case, who is reviewing a cold record. 

(See, e.g., People v. Rodriguez (2016) 1 Cal.5th 676, 690 

[relitigation of a suppression motion]; Francis v. Superior 

Court of Los Angeles County (1935) 3 Cal.2d 19, 28–29 

[motion for new trial pursuant to Civil Code, § 661].) The 

Legislature’s intent is best served when the outcome of the 

petition is determined by a judge who is particularly wellplaced to take all the facts and circumstances of the 

underlying case into account.
15

For all of these reasons, we conclude that the court 

incorrectly construed section 1170.95, subdivision (b)(1) 

when it interpreted “the judge that originally sentenced the 

petitioner” to mean the tribunal that sentenced the 

petitioner, rather than the individual public official. 

In seeking affirmance of the prior assignment of 

Santos’s petition to Judge Lomeli rather than Judge Pastor, 

the People also argue that the phrase “not available” must 

be broadly interpreted to give a presiding judge latitude in 

assigning specific cases to specific trial judges. We are 

skeptical that the mere fact that a different bench officer is 

sitting in the original sentencing judge’s prior courtroom 

when the petition is filed satisfies the statutory requirement 

of unavailability. (See, e.g., People v. Rodriguez (2016) 1 

Cal.5th 676, 692 [“a showing of more than mere 

inconvenience is necessary before a judge can be deemed 

unavailable”]; People v. Arbuckle (1978) 22 Cal.3d 749, 757, 

fn. 5 [“We recognize that in multi-judge courts, a judge 

hearing criminal cases one month may be assigned to other 

departments in subsequent months. However a defendant’s 

reasonable expectation of having his sentence imposed, 

pursuant to bargain and guilty plea, by the judge who took 

his plea and ordered sentence reports should not be 

thwarted for mere administrative convenience”].) But the 

record here contains no evidence that the presiding judge 

made any determination about Judge Pastor’s 

unavailability; rather, the assignment to Judge Lomeli was 

based on the incorrect interpretation that a petition must go 
16

in the first instance to the Department where the petitioner 

had been sentenced. Without such a determination by the 

presiding judge, we have no occasion to consider further the 

meaning of “not available” and the scope of proper 

considerations for a presiding judge.

DISPOSITION

The trial court’s order denying Santos’s resentencing 

petition is reversed, and the matter is remanded for further 

proceedings in accordance with section 1170.95 and this 

opinion.

MOOR, J. 

We concur:

BAKER, Acting P. J.

KIM, J.