The opinion
Filed 7/10/24 P. v. Viloria CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G062883
v. (Super. Ct. No. C-74856)
JOSEPH VILORIA, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of
Orange County, Judge Michael A. Leversen. Affirmed.
Siri Shetty, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant Joseph Viloria filed a petition for resentencing
pursuant to Penal Code section 1172.6.1 The trial court denied the petition at
the prima facie hearing. Appointed counsel for Viloria filed a brief pursuant
to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) and requested this
court conduct an independent review of the entire record. Viloria was given
an opportunity to file a supplemental brief but did not do so.
Exercising our discretion under Delgadillo, we have examined
the entire record and found no reasonably arguable issue. (Delgadillo, supra,
14 Cal.5th at p. 232.) We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1989, after a bench trial, the court found Viloria guilty of
robbery (§ 211; count 1) and first degree murder (§ 187; count 2) and found
true the felony-murder-robbery special-circumstance allegation (§190.2, subd.
(a)(17)(i)). The trial court found “there was a robbery and property was taken
from the victim before he died.”
The court sentenced Viloria to life without the possibility of
parole. On direct appeal to this court, the judgment was affirmed in an
unpublished opinion. (People v. Viloria (May 13, 1991, G009259) [nonpub.
opn.].)
In 2022, Viloria filed a petition for resentencing pursuant to
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section 1172.6. The court appointed counsel to represent him. The
1
All further statutory references are to the Penal Code.
2
Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) Although
Viloria filed his petition after this renumbering, his petition references the
former section 1170.95. We will treat the petition as a request pursuant to
section 1172.6.
2
prosecution filed a response, arguing the petition should be denied because
the record of conviction indisputably showed Viloria was not entitled to relief.
Viloria’s counsel filed a brief in support of the petition. Finding Viloria had
failed to establish a prima facie case for relief, the court denied his
resentencing petition in a written statement of decision.
Viloria filed a timely notice of appeal.
DISCUSSION
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437) amended the felony murder
rule and eliminated the natural and probable consequences doctrine as it
relates to murder “‘to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with reckless
indifference to human life.’” (People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).) Senate Bill 1437 also created procedures “for convicted murderers
who could not be convicted under the law as amended to retroactively seek
relief.” (Lewis, at p. 957.) A subsequent amendment to former section
1170.95 extended relief to defendants convicted of attempted murder based
on the natural and probable consequences doctrine or manslaughter and
made other changes to the procedure in former section 1170.95. (Sen. Bill
No. 775 (2021–2022 Reg. Sess.); Stats. 2021, ch. 551, §§ 1, 2; Senate Bill 775.)
The process begins when a defendant previously convicted of a
qualifying offense files a petition pursuant to section 1172.6. Once a superior
court receives the petition, it shall appoint counsel if requested by the
petitioner. (§ 1172.6, subd. (b)(1)–(3).) The prosecutor must then file a
response to the petition, and a reply may be filed by the petitioner. (Id.,
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subd. (c).) The trial court shall then “hold a hearing to determine whether
the petitioner has made a prima facie case for relief.” (Ibid.)
At the prima facie hearing, the trial court may rely on the record
of conviction. (Lewis, supra, 11 Cal.5th at pp. 970–971.) “The record of
conviction will necessarily inform the trial court’s prima facie inquiry under
[former] section 1170.95, allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Id. at p. 971.) “It is
only where the record of conviction establishes the petition lacks merit as a
matter of law that the court may deny the petition without a hearing.”
(People v. Lopez (2023) 88 Cal.App.5th 566, 576.) If the trial court denies the
petition without issuing an order to show cause, it must state its reasons.
(§ 1172.6, subd. (c).)
Here, the record of conviction established Viloria was charged
with murder, robbery, and the felony-murder special circumstance.
Following a bench trial in 1989, the trial court found Viloria guilty of murder
and robbery. The felony-murder special circumstance was also found to be
true. At the time of Viloria’s trial, the felony-murder special circumstance
required a finding Viloria was either the actual killer or if he was an aider
and abettor, he had the intent to kill. (People v. Anderson (1987) 43 Cal.3d
1104, 1138–1139.)3 Accordingly, because the record of conviction establishes
Viloria was convicted of murder under a still valid theory, he is ineligible for
relief as a matter of law.
After independently reviewing the entire appellate record, we
find no arguable issue.
3
In 1990, subsequent to Viloria’s trial, Proposition 115 was
approved and expanded the scope of section 190.2 by adding
subdivisions (c) and (d). (People v. Mil (2012) 53 Cal.4th 400, 408–409).
4
DISPOSITION
The postjudgment order denying the section 1172.6 resentencing
petition is affirmed.
MOTOIKE, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
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