Filed 5/13/22 P. v. Vasquez CA2/5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

STEVEN A. VASQUEZ,

Defendant and Appellant.

 B300872

 (Los Angeles County

 Super. Ct. No. GA041420)

APPEAL from an order of the Superior Court of Los 

Angeles County, Teri Schwartz, Judge. Reversed and remanded.

Janet Uson, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance 

E. Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Senior Assistant Attorney General, Daniel C. Chang,

Nancy Lii Ladner, Idan Ivri, and Allison H. Chung, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

__________________________

Defendant and appellant Steven A. Vasquez appealed from 

the denial of his petition for resentencing pursuant to Penal Code 

section 1170.951 and Senate Bill No. 1437 (Senate Bill 1437). We 

affirmed the trial court’s order summarily denying Vasquez’s 

petition without appointment of counsel on the basis that section 

1170.95 did not provide relief for Vasquez because he was

convicted of attempted murder. 

The Supreme Court granted Vasquez’s petition for review,

and on February 16, 2022, it transferred the matter back to this 

court with directions to vacate our decision and reconsider the 

cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551) and 

People v. Lewis (2021) 11 Cal.5th 952 (Lewis).

2 (Cal. Rules of 

Court, rule 8.528(d).) 

We ordered our prior opinion vacated on March 1, 2022, 

and now issue this opinion.

DISCUSSION

Legal Principles

Section 1170.95, which was added to the Penal Code 

through the enactment of Senate Bill 1437, created a petitioning 

process by which a defendant convicted of murder under a felony 

murder or natural and probable consequences theory of liability 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.

2 The Supreme Court denied Vasquez’s request to expand 

the issues on review as moot.
3

could petition to have his or her conviction vacated and be 

resentenced. (§ 1170.95, subd. (a).) 

As relevant here, Senate Bill 775 amended section 1170.95 

to clarify that “persons who were convicted of attempted murder . 

. . under . . . the natural and probable consequences doctrine are 

permitted the same relief as those persons convicted of murder 

under the same theor[y].” (Stats. 2021, ch. 551, § 1, subd. (a).) 

Pursuant to section 1170.95, as amended by Senate Bill 

775, a petitioner must submit a declaration stating that he or she 

meets the requirements of the statute as set forth in subdivision 

(a), including 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) [t]he 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) [t]he 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, subd. (a).) 

If the petition is facially sufficient and the petitioner has 

requested that counsel be appointed, the trial court appoints 

counsel. (§ 1170.95, subd. (b)(3).) “Within 60 days after service of 

a petition that meets the requirements set forth in subdivision 

(b), the prosecutor shall file and serve a response. The petitioner 

may file and serve a reply within 30 days after the prosecutor’s 

response is served. . . . After the parties have had an opportunity 
4

to submit briefings, the court shall hold a hearing to determine 

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

the petitioner makes a prima facie showing that the petitioner is 

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

the court declines to make an order to show cause, it shall 

provide a statement fully setting forth its reasons for doing so.” 

(§ 1170.95, subd. (c).)

Our Supreme Court issued Lewis, supra, 11 Cal.5th 952, 

prior to the enactment of Senate Bill 775. Among other things, 

Lewis held that a petitioner is entitled to counsel under section 

1170.95 upon filing a facially sufficient petition. (Id. at p. 957.) 

“[O]nly after the appointment of counsel and the opportunity for 

briefing may the superior court consider the record of conviction 

to determine whether ‘the petitioner makes a prima facie 

showing that he or she is entitled to relief.’ (§ 1170.95, subd. 

(c).)” (Ibid.) The right to counsel at this stage in proceedings is 

statutory only; the court’s failure to appoint counsel may be 

deemed harmless under the standard set forth in People v. 

Watson (1956) 46 Cal.2d 818, 299 P.2d 243 (Watson). (Lewis, 

supra, at pp. 957–958.) Senate Bill 775 codifies Lewis’s holdings 

regarding a petitioner’s right to counsel. (See Stats. 2021, ch. 

551, § 1, subd. (b).)

Analysis

In light of the amendments to section 1170.95, the parties 

agree that Vasquez is no longer ineligible for relief based on the 

fact that he was convicted of attempted murder rather than 

murder. They disagree, however, as to whether the jury

instructions given at trial in 2000 preclude Vasquez from 
5

demonstrating that he “could not presently be convicted of . . .

attempted murder because of changes to Section 188 or 189 made 

effective January 1, 2019.” (§ 1170.95, subd. (a)(3).) The People 

requested that we take judicial notice of the jury instructions and 

argued that the error was harmless because (1) there were no 

instructions given regarding the natural and probable 

consequences doctrine and (2) in light of the jury’s verdicts and

the instructions given, the jury necessarily found that Vasquez 

harbored the intent to kill the victim. Vasquez responded that 

ambiguities in the instructions may have caused the jury to 

convict him on a now-invalid theory of attempted murder, such 

that remand for appointment of counsel, briefing, and a hearing 

are required.

We agree with the parties that the trial court erred by 

failing to appoint counsel. We cannot say that the trial court’s 

error was harmless under Lewis. The only evidence relevant to 

Vasquez’s eligibility contained in the trial court record is the 

abstract of judgment and the amended abstract of judgment. 

These documents were sufficient to support the trial court’s 

finding that Vasquez was convicted of attempted murder, and to 

support the trial court’s ruling of ineligibility at the time the 

ruling was made. Standing alone, however, they do not suffice to 

preclude Vasquez’s eligibility at this juncture.

As the People concede, it does not appear, either from the 

contents of the record or the trial court’s written order, that the 

trial court denying Vasquez’s petition under section 1170.95 

reviewed the instructions that had been given to the jury at 
6

Vasquez’s trial.3 Nor did the trial court have the opportunity to 

review any other evidence that appointed counsel may have 

offered to make a prima facie showing of Vasquez’s eligibility.4 

The issue of whether ambiguities in the specific instructions

given here could have led the jury to convict Vasquez of 

attempted murder under an invalid theory of liability may be

informed by other portions of the record of conviction that are not 

before this court, and were not before the trial court. 

Accordingly, we reverse the order denying Vasquez’s section 

1170.95 petition, and remand the cause for the trial court to 

appoint counsel and conduct further proceedings consistent with 

this opinion.

3 We note that the judge who ruled on Vasquez’s petition 

under section 1170.95 was not the judge who presided at 

Vasquez’s jury trial approximately two decades earlier.

4 Citing to Lewis, supra, 11 Cal.5th 952, for the proposition 

that prior appellate opinions are a part of the record of conviction 

that should be considered by the trial court, the People argue 

that in its prior opinion another panel of this court held that, 

based on the facts presented, Vasquez necessarily harbored the 

intent to kill and acted with premeditation and deliberation. We 

will not address the argument here. We did not grant the 

People’s request to take judicial notice of the prior appellate 

record, and nothing in the superior court record indicates that the 

trial court reviewed the prior appellate opinion or relied upon it 

in denying Vasquez’s petition. We observe that the amendments 

to section 1170.95, subdivision (d)(3), bring into question whether 

the trial court may rely upon portions of the appellate record 

other than the “procedural history” when evaluating eligibility 

under section 1170.95. (Ibid. [“The court may also consider the 

procedural history of the case recited in any prior appellate 

opinion”].) 
7

DISPOSITION

The trial court’s order denying Vasquez’s petition for 

resentencing under section 1170.95 is reversed, and the cause is 

remanded for further proceedings.

MOOR, J. 

We concur:

RUBIN, P. J.

BAKER, J.