People v. Cervantes CA4/3

Filed 11/5/24 P. v. Cervantes CA4/3 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G058554

v. (Super. Ct. No. 01WF2314)

JAVEN ANTHONY CERVANTES, OPINION

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Reversed and remanded with instructions. Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis, Deputy Attorney General, for Plaintiff and Respondent. * * *

This appeal arises from a petition for resentencing pursuant to Penal Code section 1172.6 (formerly 1170.95). Defendant Javen Cervantes was convicted of first degree murder, and the jury found true a special circumstance that he intentionally killed the victim while an active member of a criminal street gang. This court affirmed that conviction in a prior opinion. (People v. Ramirez (Jan. 18, 2006, G033858) [nonpub. opn.].) At his trial, the jury was presented with three different theories of aiding and abetting liability: direct aiding and abetting, natural and probable consequences, and felony murder. In 2019, Cervantes filed the underlying petition for resentencing, which the trial court denied at the prima facie stage without appointing counsel. A panel of this court affirmed that denial, concluding that the jury’s finding in conjunction with a gang special circumstance that Cervantes “intentionally killed the victim” disqualified him from relief. Cervantes appealed that opinion to the California Supreme Court, which granted review and held the matter pending People v. Lewis (2021) 11 Cal.5th 952. There, our high court held that a petitioner is entitled to counsel prior to the court conducting a prima facie analysis of the petition. The court transferred the matter back to us to be reconsidered in light of its decision. Afterward, a different panel of this court once again affirmed the order denying the resentencing petition, concluding that though it was error not to appoint counsel prior to the prima facie analysis, the error was harmless because Cervantes was ineligible for relief as a matter of law. Cervantes appealed that opinion to the California Supreme Court as well, which granted review and held the matter pending the outcome of People v. Curiel (2023) 15 Cal.5th 433 (Curiel). After our high court decided that case, it transferred the present matter back to us with instructions to