People v. Armando Garcia
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In determining whether a petitioner has made a prima facie showing of entitlement to relief under Penal Code section 1170.95, the courts should not ignore the evidence in the record of conviction that shows the petitioner is ineligible for relief. The Court of Appeal affirmed the denial of the petition to vacate appellant's second degree murder conviction under section 1170.95.
The court held that the trial court properly considered the statement of facts in its 2001 opinion; the absence of a jury instruction on murder based on a theory of direct aiding and abetting does not mean that appellant could not presently be convicted of murder under this theory; and appellant failed to make a prima face showing that he could not be convicted of second degree murder. The court explained that where, as here, the record of conviction contains substantial evidence based on which a reasonable trier of fact could presently find petitioner guilty of murder despite the changes made by S.B. 1437, it would be a waste of judicial resources to require a full-blown evidentiary hearing at which the court may rely on the record of conviction. Therefore, the trial court did not err in refusing to issue an order to show cause and conduct an evidentiary hearing.
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