People v. Mota-Avendano CA1/2

Filed 6/21/22 P. v. Mota-Avendano CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A162360 v. JOSE MOTA–AVENDANO, (Contra Costa County Super. Ct. No. 5-080903-8) Defendant and Appellant.

Defendant Jose Mota–Avendano (Mota1) was convicted of three first degree murders, conspiracy to commit murder, and assault with a deadly weapon. This court affirmed the judgment in 2013, and the California Supreme Court affirmed our judgment in 2015. (People v. Elizalde (Dec. 19, 2013, A132071) as modified on denial of rehg., review granted and opinion superseded and affd. by People v. Elizalde (2015) 61 Cal.4th 523, 527.) Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) “eliminated natural and probable consequences liability for murder” “ ‘to ensure that murder liability is not imposed on a person who is not the actual killer [and] did not act with the intent to kill.’ ” (People v. Lewis (2021) 11

1 The parties refer to defendant as Mota, and we will do the same.

1

Cal.5th 952, 957, 959 (Lewis).)2 As part of the new law, the Legislature added Penal Code3 section 1170.95, “which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” (Id. at p. 959.) Mota, who was not the actual shooter in any of the three murders he was convicted of, filed a petition for resentencing under section 1170.95. The district attorney opposed the petition on the ground that there was “no rational argument” that the jury relied on a natural and probable consequences theory of liability. The trial court denied the petition at the prima facie stage, finding he was ineligible for relief as a matter of law. Mota appeals the summary denial of his petition. The Attorney General concedes the trial court erroneously denied the petition without issuing an order to show cause. We will reverse and remand to the trial court so that it can issue an order to show cause and hold a hearing in accordance with section 1170.95, subdivisions (c) and (d). FACTUAL AND PROCEDURAL BACKGROUND Underlying Murder Convictions Mota was charged with two codefendants (Javier Gomez and Gamaliel Elizalde) with the murder of Rico McIntosh (§ 187; count 1), conspiracy to