FACTS

After Justin Salazar (Salazar) told his friend Roque Viernes, Jr., (Viernes) that

Viernes’s girlfriend Reina Reyes (Reyes) had been cheating on him, Viernes told Reyes

what Salazar said and told her to move out of his house. When Salazar came to Viernes’s

house to help move Reyes’s belongings, Reyes argued with Salazar, threatened to kill him

and have her brother shoot at Salazar’s house. After Salazar left, Reyes told Viernes she

was going to stab Salazar. Viernes told Salazar about the new threat, and Salazar called

law enforcement to report the threats.

Reyes called her brother, codefendant Manuel Varela (Varela), who arrived in a car

to pick up Reyes. Codefendant Donzelle Benton (Benton) and defendant were also in the

3 car. The group drove past Salazar’s house several times. Defendant instructed Benton,

who was driving, to stop at his friend’s house so that he could get something. Defendant

returned to the car and stated, “‘mine has three’” and “‘it’s a throw-away.’” The group

then drove to Salazar’s house where Varela and defendant fired approximately five shots

at the house. A visitor in Salazar’s house was wounded by one of the gunshots.

DISCUSSION

Section 1172.6, subdivision (a) provides that a person convicted of attempted

murder under the natural and probable consequences doctrine may petition the court to

have that conviction vacated. Within 60 days after service of a facially sufficient petition

for resentencing, “the prosecutor shall file and serve a response.” (§ 1172.6, subd. (c).)

Counsel for the defendant may then file a reply within 30 days of the filing of the

response. The court then sets a prima facie hearing at which it determines whether to

issue an order to show cause. If the court decides not to issue an order to show cause, “it

shall provide a statement fully setting forth its reasons for doing so.” (Ibid.)

Defendant contends his due process rights were violated. (U.S. Const., 5th & 14th

Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15.) The Attorney General concedes that the

procedure followed by the superior court in this case was defective. The prosecutor did

not file a response as required. In addition, the court did not provide a statement fully

setting forth its reasons for denial.

Contrary to defendant’s assertion, this is not constitutional error. If a trial court

fails to comply with statutory procedures at the prima facie stage of section 1172.6

4 proceedings, we review for harmless error under the standard set forth in People v.

Watson (1956) 46 Cal.2d 818, 836. (See People v. Lewis (2021) 11 Cal.5th 952, 973

(Lewis); People v. Hurtado (2023) 89 Cal.App.5th 887, 892.)

Nonetheless, this court is unable to conduct an effective harmless error review. No

jury instructions appear in the record on appeal. Nor do we have a written response to the

petition from the prosecutor which would assist our inquiry. Moreover, there is no

written statement of reasons by the trial court to review. We therefore must reverse and

remand to the trial court to follow the procedure set by section 1172.6, subdivision (c).

The court must direct the prosecutor to file a response. (People v. Harden (2022) 81

Cal.App.5th 45, 51.)

At a prima facie hearing with a written response and possible written reply, the

court would more thoroughly consider the record in this case. For instance, it could

explore if the natural and probable consequences instruction as to the conspiracy count

would merit issuance of an order to show cause. (People v. Offley (2020) 48 Cal.App.5th

588, 599.) The court could also assess how the jury’s true findings as to enhancements

impact its determination. (Lewis, supra, 11 Cal.5th at p. 972.) If the court then decides

not to issue an order to show cause, it shall provide a statement fully stating the reasons

for its decision.

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DISPOSITION

The trial court’s denial of the petition for resentencing is reversed. The trial court

is directed to conduct a new prima facie hearing in accordance with this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

MILLER

J.

RAPHAEL

J.

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