People v. Banuelos CA2/4

INTRODUCTION

In 1992, defendant and appellant Silvano Zapien Banuelos pled guilty to second degree murder. In 2019, he filed a petition for recall and resentencing under Penal Code section 1170.95.1 The trial court summarily denied the petition, concluding Banuelos was not entitled to relief because the record of conviction showed he was not convicted under a felony murder or natural and probable consequences theory, but rather was a direct aider and abettor to the murder. On appeal, Banuelos argues the trial court erred by denying his petition without issuing an order to show cause and holding an evidentiary hearing. The Attorney General disagrees, asserting Banuelos failed to make a prima facie showing of entitlement to relief because the record of conviction indisputably showed he was prosecuted and pleaded no contest under the theory that he harbored the intent to kill. We agree with Banuelos and reverse the denial of his petition. The record does not demonstrate as a matter of law that Banuelos was convicted on the theory that he was a direct aider and abettor to the murder who harbored the intent to kill. On remand, the trial court is directed to issue an order to show…