Opinion
B296585
04-14-2020
THE PEOPLE, Plaintiff and Respondent, v. LONNY COLE, Defendant and Appellant.
John F. Shuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Amanda V. Lopez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. TA126093) APPEAL from an order of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. Affirmed. John F. Shuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Amanda V. Lopez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Defendant and appellant Lonny Cole appeals from the denial of his petition for resentencing pursuant to Penal Code section 1170.95 and Senate Bill No. 1437 (Senate Bill 1437). We affirm the trial court's order denying Cole's petition for resentencing.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTS AND PROCEDURAL HISTORY
The facts are taken from our prior unpublished opinion in People v. Cole (Feb. 11, 2015, B253755).
On December 6, 2012, Cole and his girlfriend attended a repass following the funeral of one of Cole's fellow Broadway Gangster Crips members. Cole told his girlfriend to wait outside the repass while he met with other gang members. He was upset at his girlfriend at the time because she had "snitched" on another gang member. Cole's girlfriend was sitting in the backseat of a car with three other women when Cole approached and knocked on the window with a gun. One of the women unlocked the door, and Cole opened it, kicked his girlfriend in the face, pointed the gun at her, and fired. The bullet hit Cole's girlfriend's finger, went through the body of a second woman, killing her, and lodged in the body of a third woman. No one else was involved in the incident.
In 2013, Cole was convicted of one count of second degree murder (§ 187, subd. (a) [count 1]) and two counts of assault with a firearm (§ 245, subd. (a)(2)). The jury found true the allegations that Cole personally used a firearm in commission of the offenses in counts 2 and 3 (§ 12022.5, subd. (a)), and found true the allegations that he committed all of the offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).
The trial court sentenced Cole to a term of 25 years to life in prison, comprised of a sentence of 15 years to life in count 1, plus a consecutive term of 10 years for the gang enhancement in that count. The court imposed and stayed sentences in counts 2 and 3.
Cole timely appealed. We struck the 10-year gang enhancement imposed under section 186.22, subdivision (b)(1)(C) in count 1, and ordered the trial court to instead impose a 15-year minimum parole eligibility term in that count pursuant to 186.22, subdivision (b)(5), but otherwise affirmed the judgment. (People v. Cole, supra, B253755.)
On September 30, 2018, the Governor signed Senate Bill 1437. "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by amending Penal Code sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." (People v. Martinez (2019) 31 Cal.App.5th 719, 722.)
Cole petitioned to be resentenced under section 1170.95. His petition included the information required under section 1170.95, subdivision (b)(1). Specifically, Cole included the Superior Court case number and the date of his conviction, requested that counsel be appointed, and declared that he was eligible for relief because (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of murder under the natural and probable consequences doctrine, (2) he was convicted of second degree murder following a trial, and (3) he could not be convicted of second degree murder because of changes to Section 188 made effective January 1, 2019. (§ 1170.95, subds. (b)(1)(A)-(C).)
The trial court denied the petition without appointing counsel. In its written denial order, the court explained: "[T]he court file reflects that the petitioner was the actual killer and was not convicted under a theory of felony-murder of any degree, or a theory of natural and probable consequences. There [are] no jury instructions for aiding and abetting, felony murder, or natural and probable consequences. . . . [¶] The appellate opinion affirming the petitioner's conviction and sentence reflects that the petitioner was the actual killer and was convicted [of] murder on a theory of being the direct perpetrator and not on [a] theory of felony murder of any degree, or a theory of natural and probable consequences."
DISCUSSION
Cole contends that the trial court erred by summarily denying his petition for resentencing under section 1170.95 without first appointing counsel and permitting briefing. Cole "concedes that the record in this case shows that he was the actual killer and that he was not convicted under a felony murder or natural and probable consequences theory," but argues that the trial court's failure to follow procedure as set forth in the statute—i.e., denying Cole's petition prior to appointment of counsel and briefing—is a violation of due process and the Sixth Amendment right to counsel, regardless of the merits of his claim. We conclude that the procedure set forth in section 1170.95 permits a trial court to deny a petition for resentencing on the basis of information in the record of conviction without first appointing counsel or considering briefing by the parties. We therefore affirm the trial court's order.
When determining legislative intent, "it is well settled that we must look first to the words of the statute, 'because they generally provide the most reliable indicator of legislative intent.' [Citation.] If the statutory language is clear and unambiguous our inquiry ends. 'If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.' [Citations.] In reading statutes, we are mindful that words are to be given their plain and commonsense meaning." (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103 (Murphy).) We "must, if possible without doing violence to the language and spirit of the law, interpret it so as to harmonize and give effect to all its provisions." (People v. Garcia (1999) 21 Cal.4th 1, 14, fn. omitted.) "Only when the statute's language is ambiguous or susceptible of more than one reasonable interpretation, may the court turn to extrinsic aids to assist in interpretation." (Murphy, supra, at p. 1103.) "We review de novo questions of statutory construction." (People v. Verdugo (2020) 44 Cal.App.5th 320, 328, fn. 8 (Verdugo).)
In a recent opinion, People v. Verdugo, supra, 44 Cal.App.5th 320, Division Seven of the Court of Appeal, Second Appellate District, examined the petitioning procedure prescribed by section 1170.95. The Verdugo court held that "pursuant to section 1170.95, subdivision (b)(2), the sentencing court may deny a petition without prejudice if any of the information required by subdivision (b)(1) is missing from the petition and cannot be readily ascertained by the court. This initial review thus determines the facial sufficiency of the petition. Subdivision (c) then prescribes two additional court reviews before an order to show cause may issue, one made before any briefing to determine whether the petitioner has made a prima facie showing he or she falls within section 1170.95—that is, that the petitioner may be eligible for relief [under subdivision (a)]—and a second after briefing by both sides to determine whether the petitioner has made a prima facie showing he or she is entitled to relief." (Verdugo, supra, at pp. 327-328.)
As relevant here, section 1170.95 provides as follows:
"(a) A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:
"(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.
"(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.
"(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.
"(b)(1) The petition shall be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney, or on the agency that prosecuted the petitioner, and on the attorney who represented the petitioner in the trial court or on the public defender of the county where the petitioner was convicted. If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition. The petition shall include all of the following:
"(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a).
"(B) The superior court case number and year of the petitioner's conviction.
"(C) Whether the petitioner requests the appointment of counsel.
"(2) If any of the information required by this subdivision is missing from the petition and cannot be readily ascertained by the court, the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information.
"(c) The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause."
The Verdugo court likened the second prima facie review under section 1170.95, subdivision (c) "to the familiar decisionmaking process before issuance of an order to show cause in habeas corpus proceedings." (Verdugo, supra, 44 Cal.App.5th at p. 328.) It noted that the standards share identical language, requiring the court to determine whether the petitioner has made "'a prima facie showing that he or she is entitled to relief.'" (Ibid.) Following the rule that the courts must give meaning to all parts of a statute, the Verdugo court reasoned that the first prima facie determination must be less stringent than the second, but more than a mere review of the petition's facial sufficiency, as described in section 1170.95, subdivision (b)(2). (Id. at pp. 328-329.) To interpret the language otherwise would render it redundant. (Id. at p. 329.)
The Verdugo court concluded that the first prima facie review in section 1170.95, subdivision (c) must be a "preliminary review of statutory eligibility for resentencing," in which the trial court "decide[s] whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (Verdugo, supra, 44 Cal.App.5th at p. 329.) In making this determination the trial court may, as it is permitted to do when determining facial sufficiency under section 1170.95, subdivision (b), consider "readily ascertainable" information, including documents in the record of conviction. (Ibid.; see also People v. Lewis (2020) 43 Cal.App.5th 1128, 1138 (Lewis) [holding that the trial court may consider the record of conviction during initial prima facie review].) If the record of conviction establishes that the petitioner is ineligible for relief as a matter of law, it may dismiss the petition. (Verdugo, supra, 44 Cal.App.5th at pp. 330, 336 [holding trial court did not err in summarily denying petition where record demonstrated petitioner was a direct aider and abettor and therefore ineligible for relief]; see Lewis, supra, 43 Cal.App.5th at pp. 1138-1139 [same]; People v. Cornelius (2020) 44 Cal.App.5th 54, 58 (Cornelius) [holding court did not err in summarily denying petition where record demonstrated he was convicted of second degree murder and jury found true allegation that he personally and intentionally used a firearm to commit the crime].) If, however, the petitioner is not ineligible as a matter of law, the court must proceed to the next step, including appointment of counsel if the petitioner has requested representation, and briefing by the parties. (Verdugo, at p. 330.) This process mirrors the "preliminary review of statutory eligibility for resentencing, a concept that is a well-established part of the resentencing process under Propositions 36 and 47" (Id. at p. 329), and is in keeping with the purpose of the legislation, " '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.' (Stats. 2018, ch. 1015, § 1, subd. (f).)" (Id. at p. 325.)
The Verdugo court explained that, given the chronological ordering of the statute overall as well as practical considerations, a trial court is not obligated to appoint counsel or consider briefing before conducting the first prima facie review. (Verdugo, supra, 44 Cal.App.5th at p. 332.) The Verdugo court reasoned that, as a practical matter, counsel's first task is briefing, and it would not make sense to appoint counsel if it could be readily established that the petitioner is ineligible for relief as a matter of law. (Id. at pp. 332-333.) Under similar reasoning, both Division One and Division Six of the Court of Appeal, Second Appellate District, have held that, where a petitioner is statutorily ineligible for relief under section 1170.95 as a matter of law, the trial court has no duty to appoint counsel. (Cornelius, supra, 44 Cal.App.5th at p. 58; Lewis, supra, 43 Cal.App.5th at p. 1140.)
We agree with the result reached by the Verdugo and Lewis courts. The trial court did not err by denying Cole's petition without first appointing counsel because, as he concedes, the record of conviction demonstrates he was the actual killer, convicted on no other theory of liability, and he is not eligible for relief as a matter of law. (See Cornelius, supra, 44 Cal.App.5th at p. 58 [holding petitioner ineligible for relief under section 1170.95 and not entitled to counsel where jury convicted him of second degree murder and found true that he personally and intentionally used a firearm to commit the crime].) The federal and state constitutions do not compel a different conclusion in a collateral proceeding such as this. (See, e.g., Pennsylvania v. Finley (1987) 481 U.S. 551, 556-557 [no federal constitutional or due process right to appointed counsel in state postconviction proceedings]; People v. Shipman (1965) 62 Cal.2d 226, 231-232; cf. In re Barnett (2003) 31 Cal.4th 466, 474-475 [no constitutional right to counsel under California constitution for seeking collateral relief from a judgment of conviction via state habeas corpus proceedings].)
DISPOSITION
The order denying the petition for resentencing is affirmed.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.