People v. Tarkington ( 2020 )

Filed 6/2/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B296331
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA134487)
v.
ANTHONY LYLE TARKINGTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert J. Perry, Judge. Affirmed.
Heather J. Manolakas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and
Susan Sullivan Pithey, Assistant Attorneys General, Paul M.
Roadarmel Jr., Stacy S. Schwartz, Idan Ivri, and Amanda V.
Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
Jackie Lacey, Los Angeles County District Attorney, Phyllis
C. Asayama and Matthew Brown, Deputy District Attorneys;
Ricardo D. Garcia, Public Defender of Los Angeles County, Albert
J. Menaster, Deputy Public Defender; Erika C. Anzoategui,
Alternate Public Defender of Los Angeles County, Michael
Goodman, Deputy Alternate Public Defender; The Justice
Collaborative, Kate L. Chatfield, Senior Advisor for Legislation
and Policy, as Amici Curiae.
_________________________
In 1997, defendant and appellant Anthony Lyle Tarkington
was convicted by a jury of second degree murder, with a finding
that he personally used a dangerous and deadly weapon, a knife.
After passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill 1437), Tarkington petitioned for resentencing under
Penal Code section 1170.95.1 The trial court summarily denied
the petition because Tarkington was the actual killer.
Tarkington contends that the court’s order must be reversed
because the court improperly denied his petition without
appointing counsel. We disagree and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND2
On June 22, 1996, Tarkington and the victim, Donald
Fitzpatrick, became embroiled in a fistfight as they were waiting
in line for free coffee and donuts in downtown Los Angeles.
Tarkington fatally stabbed Fitzpatrick in the shoulder and the
stomach. Consequently, Tarkington was charged with murder.
1
All further undesignated statutory references are to the
Penal Code.
2
We glean the facts from our unpublished opinion in
Tarkington’s direct appeal in case No. B117520, filed August 19,
1998, of which we have taken judicial notice at Tarkington’s
request. (Evid. Code, §§ 452, subd. (d), 459.)
2
On August 25, 1997, a jury found Tarkington guilty of
second degree murder. (§ 187, subd. (a).) It also found true the
allegation that he personally used a deadly and dangerous
weapon, a knife, in commission of the murder. (§ 12022,
subd. (b).) Pursuant to the Three Strikes law (§ 667, subds. (b)–
(i)), the trial court sentenced Tarkington to 46 years to life in
prison.
On January 28, 2019, after passage of Senate Bill 1437,
Tarkington filed a petition for resentencing under section
1170.95. Using a preprinted form, he checked boxes stating that
a charging document had been filed against him allowing the
prosecution to proceed under a felony murder theory or the
natural and probable consequences doctrine; he was convicted of
first or second degree murder under one of those theories; he
could not now be convicted of murder in light of changes to the
law wrought by Senate Bill 1437; he was not the actual killer, nor
did he aid and abet the actual killer with the intent to kill; and
he was not a major participant in the felony and did not act with
reckless indifference to human life. He also checked a box
stating, “I request that this court appoint counsel for me during
this re-sentencing process.”
On February 13, 2019, the trial court summarily denied the
petition. Tarkington was not present and the court did not
appoint counsel for him. The court’s order stated, “In 1997,
Tarkington was convicted of second degree murder for stabbing a
man to death on June 22, 1996. The victim was waiting [in] line
for free donuts and coffee in the Skid Row area of Los Angeles.
Tarkington was convicted in part when DNA confirmed a spot of
blood on his shoe was the victim’s. [¶] As the actual killer,
3
Tarkington is not entitled to relief under Penal Code § 1170.95.
[¶] The petition for resentencing is unmeritorious and is denied.”
Tarkington timely appealed.
DISCUSSION
Tarkington contends that the court erred by summarily
denying his petition without appointing counsel for him. He
urges that the failure to appoint counsel violated his statutory
and constitutional rights, amounted to structural error, and
requires reversal. We disagree.
1. Senate Bill 1437
Senate Bill 1437 was enacted to “amend the felony murder
rule and 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.”
(Stats. 2018, ch. 1015, § 1, subd. (f).) “Senate Bill No. 1437
achieves these goals by amending section 188 to require that a
principal act with express or implied malice and by amending
section 189 to state that a person can only be liable for felony
murder if (1) the ‘person was the actual killer’; (2) the person was
an aider or abettor in the commission of murder in the first
degree; or (3) the ‘person was a major participant in the
underlying felony and acted with reckless indifference to human
life.’ (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2,
3.)”3 (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review
granted Mar. 18, 2020, S260410 (Cornelius); People v. Verdugo
3
Section 189, subdivision (e), does not apply if the victim is a
peace officer under specified circumstances. (§ 1170.95, subd. (f).)
4
(2020) 44 Cal.App.5th 320, 326, review granted Mar. 18, 2020,
S260493 (Verdugo).)
Senate Bill 1437 also added section 1170.95, which permits
persons convicted of murder under a felony murder or natural
and probable consequences theory to petition in the sentencing
court for vacation of their convictions and resentencing. Section
1170.95 provides in pertinent part: “A person convicted of felony
murder or murder under a natural and probable consequences
theory” may file a petition “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.” (§ 1170.95, subd. (a).)
Section 1170.95 requires that the petition be filed in the
sentencing court, and must include the petitioner’s declaration
showing eligibility, the case number, the year of conviction, and
any request for counsel. (§ 1170.95, subd. (b); Verdugo, supra,
44 Cal.App.5th at p. 327, rev.gr.) Subdivision (c) of the statute
lists the next steps in the petition process thusly: “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
5
petition and the petitioner may file and serve a reply within 30
days after the prosecutor[’s] 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.”
Verdugo recently clarified the parameters of the statutory
scheme, explaining that a court’s evaluation of a section 1170.95
petition requires a multi-step process: an initial review to
determine the facial sufficiency of the petition; a prebriefing,
“first prima facie review” to preliminarily determine whether the
petitioner is statutorily eligible for relief as a matter of law; and a
second, postbriefing prima facie review to determine whether the
petitioner has made a prima facie case that he or she is entitled
to relief. (Verdugo, supra, 44 Cal.App.5th at pp. 327–330, rev.gr.;
accord, People v. Torres (2020) 46 Cal.App.5th 1168, 1177–1178;
People v. Drayton (2020) 47 Cal.App.5th 965, 975–976 [§ 1170.95
provides for two separate prima facie reviews, with the first
focused on eligibility for relief and the second on entitlement to
relief].)
In its initial review, the court determines whether any of
the information required by section 1170.95, subdivision (b)(1) to
be included in the petition is missing and cannot readily be
ascertained by the court. If so, the court may deny the petition
without prejudice to the filing of another petition containing the
requisite information. (§ 1170.95, subd. (b)(2); Verdugo, supra,
44 Cal.App.5th at pp. 327–328, rev.gr.) “This initial review thus
determines the facial sufficiency of the petition.” (Verdugo, at
p. 328.)
The next step, a prebriefing “first prima facie review,” is a
“preliminary review of statutory eligibility for resentencing,” akin
6
to the procedure employed in a Proposition 36 or Proposition 47
context.4 (Verdugo, supra, 44 Cal.App.5th at pp. 328–329, rev.gr.;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review granted
Mar. 18, 2020, S260598 (Lewis).) The court must determine,
based upon its review of readily ascertainable information in the
record of conviction and the court file, whether the petitioner is
statutorily eligible for relief as a matter of law, i.e., whether he
was convicted of first or second degree murder based on a
charging document that permitted the prosecution to proceed
under the natural and probable consequences doctrine or a felony
murder theory. (Verdugo, at pp. 329–330.) If not, the court can
dismiss any petition filed by an ineligible individual. (Id. at
p. 330.) “The court’s role at this stage is simply to decide whether
the petitioner is ineligible for relief as a matter of law, making all
factual inferences in favor of the petitioner.” (Id. at p. 329.)
“Because the court is only evaluating whether there is a
prima facie showing the petitioner falls within the provisions of
the statute, . . . if the petitioner’s ineligibility for resentencing
under section 1170.95 is not established as a matter of law by the
record of conviction,” evaluation of the petition proceeds to the
“second prima facie review,” in which “the court must direct the
prosecutor to file a response to the petition, permit the petitioner
(through appointed counsel if requested) to file a reply and then
determine, with the benefit of the parties’ briefing and analysis,
whether the petitioner has made a prima facie showing he or she
is entitled to relief.” (Verdugo, supra, 44 Cal.App.5th at pp. 330,
328, rev.gr.) In this second prima facie evaluation, the court
4
Proposition 36, the Three Strikes Reform Act of 2012;
Proposition 47, the Safe Neighborhoods and Schools Act.
7
employs the familiar standard for issuance of an order to show
cause in a habeas corpus proceeding. That is, the court must
take petitioner’s factual allegations as true and make a
preliminary assessment regarding whether he or she would be
entitled to relief if the factual allegations were proved. (Id. at
p. 328; People v. Drayton, supra, 47 Cal.App.5th at p. 980 [when
evaluating whether petitioner has made a prima facie showing of
entitlement to relief, court cannot weigh evidence or make
credibility determinations, but need not credit factual assertions
that are untrue as a matter of law].)
After such an order to show cause issues, absent a waiver
and stipulation by the parties, the trial court must hold a hearing
“to determine whether to vacate the murder conviction and to
recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not
been previously . . . sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.” (§ 1170.95,
subd. (d)(1).) At that hearing, the prosecution has the burden to
prove beyond a reasonable doubt that the petitioner is ineligible
for resentencing. Both the prosecution and the petitioner may
rely on the record of conviction or may offer new or additional
evidence. (§ 1170.95, subd. (d)(3).)
2. The trial court correctly found Tarkington is ineligible
for section 1170.95 relief
Preliminarily, we observe that the record compels the
conclusion that the trial court correctly found Tarkington is
ineligible, as a matter of law, for relief under section 1170.95.
Tarkington was not prosecuted on a felony murder or natural and
probable consequences theory. Instead, he was the actual killer.
Our opinion in his direct appeal, which described the evidence
8
presented at trial, demonstrates that the murder involved a
single perpetrator, Tarkington; it was not a situation in which
multiple persons carried out the attack.5 The jury instructions
given in the case did not include any instruction on aiding and
abetting, the natural and probable consequences doctrine, or the
felony murder rule. The verdict form contains the jury’s finding
that Tarkington personally used a deadly and dangerous weapon,
a knife. In short, the record shows that as a matter of law,
Tarkington was the actual killer and was not tried using the
natural and probable consequences doctrine or the felony murder
rule; he was convicted on a theory that survives the changes to
sections 188 and 189. (See People v. Edwards (2020) 48
Cal.App.5th 666, 674 [where petitioner was not charged or
convicted under the felony murder rule or natural and probable
consequences doctrine, summary denial of petition was proper];
Verdugo, supra, 44 Cal.App.5th at p. 333, rev.gr.) Consideration
of the record to determine whether a petitioner has made the first
prima facie showing, i.e., whether he is eligible for relief, is
proper.6 (People v. Torres, supra, 46 Cal.App.5th at p. 1178;
Verdugo, supra, 44 Cal.App.5th at pp. 329–330, rev.gr.; Lewis,
5
The record includes our opinion resolving Tarkington’s
direct appeal. “A court of appeal opinion, whether or not
published, is part of the appellant’s record of conviction.
[Citations.]” (Verdugo, supra, 44 Cal.App.5th at p. 333, rev.gr.;
Lewis, supra, 43 Cal.App.5th at p. 1136, fn. 7, rev.gr.)
6
Our Supreme Court is currently considering whether
superior courts may consider the record of conviction in
determining whether a defendant has made a prima facie
showing of eligibility for relief under section 1170.95. (Lewis,
supra, S260598.)
9
supra, 43 Cal.App.5th at p. 1138, rev.gr.) Under no stretch of
imagination, therefore, could Tarkington be eligible for relief
under section 1170.95.
3. Tarkington was not entitled to appointed counsel at the
first prima facie review stage
Tarkington nonetheless contends that the superior court
was required to appoint counsel for him before denying the
petition, simply because he checked the right boxes on a
preprinted form. Our colleagues in Divisions One, Five, Six, and
Seven have rejected similar arguments. (Lewis, supra, 43
Cal.App.5th at pp. 1139–1140, rev.gr.; People v. Torres, supra,
46 Cal.App.5th at pp. 1173, 1178; Cornelius, supra,
44 Cal.App.5th at p. 58, rev.gr. [rejecting contention that trial
court was statutorily required to appoint counsel once petitioner
alleged he satisfied filing requirements, regardless of whether the
petition’s allegations were accurate]; Verdugo, supra, 44
Cal.App.5th at pp. 332–333, rev.gr.) Our Supreme Court is
currently considering when the right to appointed counsel arises
under section 1170.95, subdivision (c). (Lewis, supra, S260598.)
Pending further guidance from our Supreme Court, we agree
with the aforementioned authorities.
Tarkington maintains that the statutory language is plain
and unambiguous, requiring that counsel “shall” be appointed.
(§ 1170.95, subd. (c).) Thus, he contends, if the petition contains
the required information and averments—even if incorrect—an
attorney must be appointed at the outset.
When construing a statute, we must determine the
Legislature’s intent so as to effectuate the law’s purpose. (People
v. Ruiz (2018) 4 Cal.5th 1100, 1105–1106.) We begin with an
examination of the statute’s words, giving them their usual and
10
ordinary meaning. (People v. Colbert (2019) 6 Cal.5th 596, 603;
People v. Ruiz, at pp. 1105–1106; In re C.H. (2011) 53 Cal.4th 94,
100.) If not ambiguous, the plain meaning of the statutory
language controls, and we need go no further. (People v. Colbert,
at p. 603; People v. Ruiz, at p. 1106; In re C.H., at p. 100.) We
agree the statutory language requiring appointment of counsel is
mandatory, but the pertinent question is when such appointment
is required. On that point, when viewed in isolation, the
statutory language is ambiguous. However, when viewed in the
context of section 1170.95 as a whole, it is clear that counsel need
not be appointed before the court determines the petitioner is
eligible for relief. (Lewis, supra, 43 Cal.App.5th at pp. 1139–
1140, rev.gr.)
Verdugo explained: “The first sentence of section 1170.95,
subdivision (c), directs the court to review the petition and
determine if the petitioner has made the requisite prima facie
showing. The second sentence provides, if the petitioner has
requested counsel, the court must appoint counsel to represent
him or her. The third sentence requires the prosecutor to file and
serve a response to the petition within 60 days of service of the
petition and permits the petitioner to file a reply to the response.
The structure and grammar of this subdivision indicate the
Legislature intended to create a chronological sequence: first, a
prima facie showing; thereafter, appointment of counsel for
petitioner; then, briefing by the parties. [Citations.]” (Verdugo,
supra, 44 Cal.App.5th at p. 332, rev.gr.) “Nor would it make
sense as a practical matter to appoint counsel earlier in the
process since counsel’s first task is to reply to the prosecutor’s
response to the petition. If . . . the court concludes the petitioner
has failed to make the initial prima facie showing required by
11
subdivision (c), counsel need not be appointed. Of course, if the
petitioner appeals the superior court’s summary denial of a
resentencing petition, appointed counsel on appeal can argue the
court erred in concluding his or her client was ineligible for relief
as a matter of law.” (Id. pp. 332–333.) As Verdugo noted, the
“first prima facie review” of the petition “must be something more
than simply determining whether the petition is facially
sufficient; otherwise, given subdivision (b)(2), this portion of
subdivision (c) would be surplusage.” (Id. at pp. 328–329.)
Lewis came to the same conclusion. The court observed
that when “the statutory framework is, overall, chronological,
courts will construe the timing of particular acts” to occur in the
order they appear in the text. (Lewis, supra, 43 Cal.App.5th at
pp. 1139–1140, rev.gr.) Section 1170.95 is such a statute: it is
“organized chronologically from its first subdivision to its last.”
(Lewis, at p. 1140.) “Given the overall structure of the statute,
we construe the requirement to appoint counsel as arising in
accordance with the sequence of actions described in section
1170.95 subdivision (c); that is, after the court determines that
the petitioner has made a prima facie showing that petitioner
‘falls within the provisions’ of the statute, and before the
submission of written briefs and the court’s determination
whether petitioner has made ‘a prima facie showing that he or
she is entitled to relief.’ (§ 1170.95, subd. (c).) . . . [T]he trial
court’s duty to appoint counsel does not arise unless and until the
court makes the threshold determination that petitioner ‘falls
within the provisions’ of the statute.” (Id. at p. 1140, fn. omitted;
see Cornelius, supra, 44 Cal.App.5th at p. 58, rev.gr.)
Reading the law as Tarkington suggests would lead to
anomalous results. “ ‘It would be a gross misuse of judicial
12
resources to require the issuance of an order to show cause or
even appointment of counsel based solely on the allegations of the
petition, which frequently are erroneous, when even a cursory
review of the court file would show as a matter of law that the
petitioner is not eligible for relief. For example, if the petition
contains sufficient summary allegations that would entitle the
petitioner to relief, but a review of the court file shows the
petitioner was convicted of murder without instruction or
argument based on the felony murder rule or [the natural and
probable consequences doctrine], . . . it would be entirely
appropriate to summarily deny the petition based on petitioner’s
failure to establish even a prima facie basis of eligibility for
resentencing.’ ” (Lewis, supra, 43 Cal.App.5th at p. 1138, rev.gr.,
citing Couzens et al., Sentencing Cal. Crimes (The Rutter Group
2019) ¶ 23:51(H)(1), pp. 23-150 to 23-151.)
Such is the case here. The court summarily denied the
petition at the “first prima facie review” stage, based on its
finding that Tarkington is ineligible as a matter of law. That
finding is correct, as we have discussed. Accordingly, the
appointment of counsel was not statutorily required by section
1170.95. (Verdugo, supra, 44 Cal.App.5th at pp. 332–333, rev.gr.;
Lewis, supra, 43 Cal.App.5th at p. 1140, rev.gr. [“Because the
trial court denied defendant’s petition based upon his failure to
make a prima facie showing that the statute applies to his
murder conviction, defendant was not entitled to the
appointment of counsel”]; Cornelius, supra, 44 Cal.App.5th at
p. 58, rev.gr.)
13
4. Senate Bill 1437’s legislative history
The dissent opines that examination of successive drafts of
Senate Bill 1437 demonstrates the Legislature always intended
that a petitioner would be represented by appointed counsel
immediately upon filing a complete petition. (Dis. opn., post, at
pp. 12, 14–15.) To the contrary, comparison of the bill’s final and
preliminary versions suggests the opposite.
As we have described, section 1170.95 requires that the
court make two distinct determinations on a resentencing
petition: one regarding eligibility (whether the petitioner “falls
within the provisions of this section”), and the second regarding
entitlement (whether petitioner has made a prima facie showing
he or she is “entitled to relief”). The Legislature’s use of these
different phrases mandates this conclusion. “ ‘Ordinarily, where
the Legislature uses a different word or phrase in one part of a
statute than it does in other sections or in a similar statute
concerning a related subject, it must be presumed that
the Legislature intended a different meaning.’ ” (Rashidi v.
Moser (2014) 60 Cal.4th 718, 725; In re C.H., supra, 53 Cal.4th at
p. 107; People v. White (2016) 3 Cal.App.5th 433, 447.) And, we
must accord significance to every word in a statute and avoid a
construction that renders words surplusage. (Kulshrestha v.
First Union Commercial Corp. (2004) 33 Cal.4th 601, 611 [we
assume each term has meaning and appears for a reason, and
may not excise words from a statute]; People v. Johnson (2002)
28 Cal.4th 240, 246–247; People v. Kareem A. (2020) 46
Cal.App.5th 58, 71.)
The Legislature used this same phrasing in earlier versions
of Senate Bill 1437. Senate Bill 1437 was introduced on
February 16, 2018, and was amended twice before its enactment.
14
Both as introduced and as first amended, the bill required that
upon receipt of the petition, the trial court would provide notice of
the petition’s filing to defense counsel and the prosecutor.7 Both
versions further mandated that the court request or require a
response from these attorneys as to whether the petitioner was
“entitled to relief” (italics added).8 Both versions also provided
that if the court found there was “sufficient evidence that the
petitioner falls within the provisions of this section,” it should hold
a resentencing hearing. (Sen. Bill No. 1437, as introduced Feb.
16, 2018, § 6, italics added; id., as amended in the Senate, May
25, 2018, § 6.) Thus, defense counsel and the prosecutor were
always intended to brief only the question of the petitioner’s
entitlement to relief; the court was to determine eligibility—
whether the petitioner “falls within the provisions of this
section”—on its own, without briefing on the question from the
parties.
7
As introduced, the bill required that the court give notice to
“the attorney who represented the petitioner in the superior court
and to the district attorney in the county in which petitioner was
prosecuted.” (Sen. Bill No. 1437, as introduced Feb. 16, 2018,
§ 6.) As amended in the Senate, the bill added that the court
should give notice to “the public defender if the attorney of record
is no longer available.” (Id., as amended May 25, 2018, § 6.) For
ease of reference, we here use the shorthand terms “defense
counsel” and “the prosecutor.”
8 The first version of the bill required that the court request
a response from both parties with no time frame specified. (Sen.
Bill No. 1437, as introduced Feb. 16, 2018, § 6.) The second
version required that each party file a response within 60 days.
(Id., as amended May 25, 2018, § 6.)
15
The bill was amended to its final form in the Assembly on
August 20, 2018. That amendment did away with the
requirement that the court give notice and require or request a
response from the attorneys as the first step in the process.
Instead, the Legislature put into place the sequential procedure
described in Lewis and Verdugo. (Sen. Bill No. 1437, as amended
Aug. 20, 2018, § 4; Lewis, supra, 43 Cal.App.5th at p. 1140,
rev.gr.; Verdugo, supra, 44 Cal.App.5th at p. 332, rev.gr.) Using
the same language employed in the earlier versions, the August
20 amendment made explicit that two, distinct prima facie
showings were required. (Sen. Bill No. 1437, as amended Aug.
20, 2018, § 4; § 1170.95, subd. (c).)
Thus, the dissent’s position that “[e]very version of [Senate
Bill] 1437 contemplated that petitioners would be represented by
counsel upon filing a sufficient petition” is not accurate. (Dis.
opn., post, at p. 12.) Senate Bill 1437 never contemplated that
counsel would be involved in the inquiry as to whether the
petitioner “falls within the provisions of this section,” i.e.,
eligibility. Counsel was always expected to weigh in only on the
question of entitlement to relief, i.e., the question that the bill’s
final version made clear comes after the court determines
eligibility. In short, all three versions of the bill limited counsel’s
involvement to the entitlement, not the eligibility, inquiry.
Given this, section 1170.95, subdivision (c) is most logically
construed as providing for appointment of counsel only when the
entitlement inquiry arises in the second prima facie review. As
Verdugo explained: “Unlike the May 25, 2018 version of the bill,
which directed the court to initiate the briefing process upon
receipt of the petition without any review at all, even for the
petition’s completeness, this final iteration, which authorizes the
16
court both to dismiss the petition if it lacks any required
information and to determine if there is a prima facie showing
the petitioner falls within the provisions of the statute before
ordering briefing, indicates the Legislature’s intent that the
superior court perform a substantive gatekeeping function,
screening out clearly ineligible petitioners before devoting
additional resources to the resentencing process.” (Verdugo,
supra, 44 Cal.App.5th at p. 331, rev.gr.) Thus, contrary to the
dissent’s analysis, the legislative history of the bill does not
support the conclusion that counsel must be immediately
appointed.9
Tarkington and the dissent point to two letters appended to
an amicus curiae brief filed by The Justice Collaborative, which
purportedly demonstrate the Legislature’s intent to require
appointment of counsel before a court summarily denies a section
1170.95 petition. (Dis. opn., post, at pp. 16–19.) In the two
documents offered—an August 28, 2018 letter from the Judicial
9
The dissent also argues that if the Legislature intended the
court to evaluate the petition before appointing counsel, the
briefing deadlines would run from the date of the court’s
eligibility finding, not from the date the petition was filed. (Dis.
opn., post, at p. 15; see § 1170.95, subd. (c) [“[t]he 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’s response].) We see no contradiction. It is
reasonable to infer that the Legislature simply intended to
ensure that the petition is evaluated, from start to finish, in an
expeditious fashion. It is to be expected that the superior court
will promptly rule on eligibility; running the briefing period from
the date of the petition’s filing ensures that this is so, absent good
cause for a longer period.
17
Council of California to the bill’s author, and a September 13,
2018 letter from the Judicial Council to former Governor Edmund
G. Brown, Jr.—the Judicial Council opined that Senate Bill 1437
should be amended to allow for summary dismissal of petitions
that do not make a prima facie case, and for appointment of
counsel once a prima facie showing is made. Based on these
letters, the dissent makes the mistaken pronouncement that the
Legislature “rejected a request to allow courts to deny petitions
summarily without appointing counsel.” (Dis. opn., post, at
p. 16.)
But the two letters in question do not demonstrate that the
Legislature rejected a proposed change to the bill. For one thing,
the letters are not cognizable legislative history, because there is
no indication they were considered by the Legislature as a whole.
As “a general rule[,] in order to be cognizable, legislative history
must shed light on the collegial view of the Legislature as a
whole. [Citation.] . . . [O]ur Supreme Court has said, ‘We have
frequently stated . . . that the statements of an individual
legislator, including the author of a bill, are generally not
considered in construing a statute, as the court’s task is to
ascertain the intent of the Legislature as a whole in adopting a
piece of legislation. [Citations.]’ [Citation.]” (Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2005) 133
Cal.App.4th 26, 30 (Kaufman), quoting Quintano v. Mercury
Casualty Co. (1995) 11 Cal.4th 1049, 1062.) Therefore, unless
there is a showing that particular materials were part of the
debate on the legislation and were communicated to the
Legislature as a whole before passage of the bill, they are not
cognizable legislative history. (See, e.g., People v. Garcia (2002)
28 Cal.4th 1166, 1175–1176, fn. 5 [“ ‘In construing a statute we
18
do not consider the objective of an authoring legislator when
there is no reliable indication that the Legislature as a whole was
aware of that objective and believed the language of the proposal
would accomplish it.’ ”]; People v. Johnson, supra, 28 Cal.4th at
p. 247 [memorandum prepared by Office of the Attorney
General—the source of legislation—was irrelevant absent
showing awareness by Legislature as a whole]; Quelimane Co. v.
Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45–46, fn. 9
[“the views of individual legislators as to the meaning of a statute
rarely, if ever, are relevant”]; Cequel III Communications I, LLC
v. Local Agency Formation Com. of Nevada County (2007) 149
Cal.App.4th 310, 326, fn. 3 [“Letters to individual legislators,
including the bill’s author, are not matters constituting
cognizable legislative history if they were not communicated to
the Legislature as a whole.”]; Kaufman, at p. 38 [letters to
particular legislators, including bill’s author; letters to Governor
urging signing of bill; subjective intent reflected by statements of
interested parties and individual legislators, including bill’s
author, not communicated to Legislature as a whole; and “State
Bar’s view of the meaning of proposed legislation,” do not
constitute legislative history].)10
10
Other authorities are in accord. (See, e.g., People v. Wade
(2016) 63 Cal.4th 137, 143; Sierra Club v. Superior Court (2013)
57 Cal.4th 157, 173 [memorandum from city that sponsored
legislation, indicating its intent to exclude certain data bases
from definition of public record, did not reliably indicate
Legislature as a whole was aware of that objective]; Cummins,
Inc. v. Superior Court (2005) 36 Cal.4th 478, 492, fn. 11; In re
Donovan L. (2016) 244 Cal.App.4th 1075, 1088, fn. 11 [“As a
general rule, ‘legislative history must shed light on the collegial
view of the Legislature as a whole’ ”]; Raef v. Appellate Division of
19
Here, we do not have even a statement of the author’s
intent; instead, we have a letter opining that the law should be
amended, and the bill’s author’s inaction in response. If the
views of particular legislators are not cognizable legislative
history, certainly letters written to them in an attempt to
influence their views must be disregarded. (People v. Patterson
(1999) 72 Cal.App.4th 438, 443–444.) There is no showing that
the concerns expressed in the Judicial Council’s letter were ever
communicated to, contemplated by, or debated by the Legislature
as a whole. There is certainly no showing that the Legislature
ever considered and voted against amending the bill as
suggested.11 Thus, there is no basis to conclude that the
Legislature expressly declined to amend the bill.
The letter to the Governor was sent after Senate Bill 1437
was enacted by the Legislature, and consequently cannot shed
Superior Court (2015) 240 Cal.App.4th 1112, 1131 [views of
interested persons are not cognizable evidence of the
Legislature’s intent]; People v. Johnson (2015) 234 Cal.App.4th
1432, 1444, fn. 6; PaintCare v. Mortensen (2015) 233 Cal.App.4th
1292, 1309–1310, fn. 11; People v. Carroll (2014) 222 Cal.App.4th
1406, 1409, fn. 2; Slocum v. State Bd. of Equalization (2005) 134
Cal.App.4th 969, 980 [letter and memorandum from county
administrator to bill’s author not cognizable legislative history;
at most they reflected individual views or understandings of the
author and county officials].)
11
Indeed, even if the letter were cognizable, we could only
speculate about the reason for the author’s inaction. It is entirely
possible that the author believed amendment was unnecessary
because the statute as written already provided for summary
dismissal and appointment of counsel after the first prima facie
review, as multiple appellate courts have since held.
20
any light on the Legislature’s intent.12 (See People v. Fuhrman
(1997) 16 Cal.4th 930, 939, fn. 8 [memorandum analyzing
assembly bill, prepared by Judicial Council subcommittee after
Governor signed bill into law, was not “within the class of
documents that traditionally has been considered in determining
legislative intent”]; Kahan v. City of Richmond (2019) 35
Cal.App.5th 721, 734; California Highway Patrol v. Superior
Court (2006) 135 Cal.App.4th 488, 501; Witt Home Ranch, Inc. v.
County of Sonoma (2008) 165 Cal.App.4th 543, 558, fn. 8
[opinions of Legislative Analyst and Attorney General prepared
after passage of bill could not be considered because they
provided no evidence of legislative intent].)13
The dissent ignores these well-settled principles by arguing
that the letter to the Governor, at least, should be treated as an
enrolled bill report. (Dis. opn., post, at pp. 20–21.) (See Elsner v.
Uveges (2004) 34 Cal.4th 915, 934, fn. 19 [“we have routinely
found enrolled bill reports, prepared by a responsible agency
contemporaneous with passage and before signing, instructive on
matters of legislative intent”]; People v. Ruiz, supra, 4 Cal.5th at
p. 1111, fn. 3.) But the letter to the Governor is simply not an
12
Because they are not proper subjects of judicial notice, we
decline to judicially notice the documents attached as exhibits to
the amicus curiae brief filed by The Justice Collaborative, i.e., the
two letters and a guidebook prepared to assist defendants and
their families in understanding Senate Bill 1437.
13
For the same reasons, and because opinions of interested
parties not communicated to the Legislature as a whole do not
cast light on the Legislature’s intent, the dissent’s reliance on a
letter from the San Diego District Attorney to the Governor after
Senate Bill 1437’s passage is unavailing.
21
enrolled bill report or its equivalent. (See Chino MHC, LP v. City
of Chino (2012) 210 Cal.App.4th 1049, 1067 [an enrolled bill
report “ ‘ “is prepared by a department or agency in the executive
branch that would be affected by the legislation” ’ ” and is
forwarded to the Governor before he or she decides whether to
sign the enrolled bill]; Kaufman, supra, 133 Cal.App.4th at p. 40.)
The letter in question was not a “report” to the Governor by an
executive agency, nor is it analogous to such.14
14
Other cases cited by the dissent are no more help. The
dissent avers that Pacific Bell v. Public Utilities Com. (2000)
79 Cal.App.4th 269, “cit[ed] correspondence from the Judicial
Council to the bill’s author as evidence of legislative intent in
successive drafts of legislation.” (Dis. opn., post, at p. 21.) It did
not. Pacific Bell noted that the Judicial Council dropped its
opposition to a bill after the bill was amended, as reflected in a
letter from a Judicial Council legislative policy analyst to the
chairman of the Assembly Appropriations committee, not the
bill’s author. (Pacific Bell, at p. 279.) And the Judicial Council’s
change in position was conveyed in a report by the Assembly
Committee on the Judiciary in preparation for a hearing. (Id. at
pp. 279–280.) Thus, unlike in the present case, the Judicial
Council’s views were communicated to various legislative
committees. (See Kaufman, supra, 133 Cal.App.4th at p. 39
[committee reports are routinely available to the Legislature as a
whole].) Contrary to the dissent’s characterization, we do not
suggest that letters to committee chairpersons are necessarily
cognizable legislative history. (Dis. opn., post, at p. 21, fn. 10.)
The determinative fact is whether the material was shared with
and considered by the Legislature as a whole. Ghanooni v. Super
Shuttle (1992) 2 Cal.App.4th 380, also cited by the dissent (Dis.
opn., post, at p. 21), observed that language in a particular
statute could be traced to a proposed amendment by the Judicial
Council that was “circulated” to interested parties and redrafted
after the council received comments; ultimately, both versions of
22
The dissent also implies that because the Judicial Council
is the judicial branch’s policymaking body, its views are
significant. (Dis. opn., post, at p. 20.) But this misses the point.
Whether the Judicial Council’s—or any governmental body’s—
views assist with an interpretation of legislative intent turns not
on the importance or prestige of that body, but on whether
circumstances show its objections or requests were considered by
the Legislature, as opposed to a single legislator. It is one thing to
say the Legislature rejected a proposed amendment after
considering it; it is quite another to assume that the Legislature
as a whole rejected a proposal that, as far as we can tell, was
never shared with anyone other than the author.
5. Tarkington’s other arguments lack merit
Tarkington argues the statute should be read to require
counsel at the outset for several reasons. He asserts that Senate
Bill 1437 gave him a liberty interest, presumably in having
counsel appointed, of which he could not be deprived. But
Tarkington is categorically ineligible for relief under section
1170.95, as we have explained. Therefore, it follows ipso facto
that he could have had no liberty interest in the appointment of
counsel, and could have had no expectation that counsel would be
appointed for him.
the council’s proposals were reflected in the law passed.
(Ghanooni, at pp. 384–385.) Thus, in that case the Judicial
Council’s input was not limited to a letter to the bill’s author
alone, as are the materials relied upon by the dissent. In Kelly v.
Methodist Hospital of So. California (2000) 22 Cal.4th 1108,
1116, the court relied on successive versions of a bill as an
indication of legislative intent, not on a letter sent solely to a
bill’s author.
23
Next, Tarkington avers that the appointment of counsel at
the outset is necessary because implementation of section
1170.95 is “complicated” and, without counsel to advocate for a
petitioner, petitions are likely to be erroneously denied. He
worries that the “record of conviction” is not clearly defined by
the statute and may be voluminous; and in older cases, where the
record may be unavailable, the court may not have “the time and
resources” to uncover adequate information. Without counsel, he
maintains, there is “no guarantee” the trial court will review
sufficient information to give it a “full understanding” of the case.
These concerns are unfounded. Verdugo explained what
information a court should examine in making the threshold
eligibility determination: “Although subdivision (c) does not
define the process by which the court is to make this threshold
determination, subdivisions (a) and (b) of section 1170.95 provide
a clear indication of the Legislature’s intent. . . . [S]ubdivision
(b)(2) directs the court in considering the facial sufficiency of the
petition to access readily ascertainable information. The same
material that may be evaluated under subdivision (b)(2)—that is,
documents in the court file or otherwise part of the record of
conviction that are readily ascertainable—should similarly be
available to the court in connection with the first prima facie
determination required by subdivision (c). In particular, because
a petitioner is not eligible for relief under section 1170.95 unless
he or she was convicted of first or second degree murder based on
a charging document that permitted the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine [citation], the court must at least
examine the complaint, information or indictment filed against
the petitioner; the verdict form or factual basis documentation for
24
a negotiated plea; and the abstract of judgment. Based on a
threshold review of these documents, the court can dismiss any
petition filed by an individual who was not actually convicted of
first or second degree murder. The record of conviction might
also include other information that establishes the petitioner is
ineligible for relief as a matter of law because he or she was
convicted on a ground that remains valid notwithstanding Senate
Bill 1437’s amendments to sections 188 and 189 [citation]—for
example, a petitioner who admitted being the actual killer as part
of a guilty plea or who was found to have personally and
intentionally discharged a firearm causing great bodily injury or
death in a single victim homicide within the meaning of section
12022.53, subdivision (d). [Citation.]” (Verdugo, supra, 44
Cal.App.5th at pp. 329–330, rev.gr.; People v. Edwards, supra,
48 Cal.App.5th at pp. 673–674; People v. Torres, supra, 46
Cal.App.5th at p. 1178; Lewis, supra, 43 Cal.App.5th at pp. 1137–
1138, rev.gr. [as with analogous determinations of eligibility
under Propositions 36 and 47, court considering a section 1170.95
petition is permitted to examine the record of conviction when
evaluating a petitioner’s prima facie showing of eligibility].)
Contrary to Tarkington’s arguments, the preliminary
determination that a petitioner is ineligible will generally be
straightforward and uncomplicated. In most or at least many
cases, the information necessary to make the first prima facie
eligibility determination will be readily ascertainable based on
clear and indisputable portions of the record. A court can
determine whether the defendant was convicted of a qualifying
crime, was the actual killer, or was tried under the felony murder
or natural and probable consequences doctrines, by a simple
examination of the record, including, inter alia, the charging
25
document, the verdict (or plea) forms, the jury instructions, and
any appellate opinion in the case. (See Verdugo, supra, 44
Cal.App.5th at p. 333, rev.gr. [an appellate opinion is part of the
record of conviction; trial court may properly consider it when
determining whether petitioner made a prima facie showing of
eligibility under section 1170.95]; accord, People v. Edwards,
supra, 48 Cal.App.5th at pp. 674–675.)
At this stage, a court must make all factual inferences in
the petitioner’s favor (Verdugo, supra, 44 Cal.App.5th at p. 329,
rev.gr.); thus, there is no danger the court will find ineligibility
based upon an unclear or missing record. Unless the record
conclusively shows that the defendant is ineligible as a matter of
law, the court should move to the next step and appoint counsel.
As the district attorney states in her amicus curiae brief: “the
prima facie showing is very low. The court reviews only whether
the defendant could have been convicted under a theory of
murder that is now invalid after [Senate Bill] 1437. This would
normally require looking only at the jury instructions or the
appellate opinion to see if the defendant was convicted as an
accomplice, as opposed to being the direct perpetrator. The court
should only decline to find a prima facie case where the defendant
is ineligible as a matter of law and there is no contested issue of
law or fact for the court’s resolution.” (Italics added.) If there is
any issue, the court should proceed to the second prima facie
review. At that point, the appointment of counsel, where
requested, is mandatory.
Tarkington next expresses concern that if requested
counsel is not appointed immediately upon the filing of a petition,
the result will be a plethora of erroneous ineligibility findings
and resultant appeals. In its amicus brief, the alternate public
26
defender states that more than 100 summary denials of section
1170.95 petitions have occurred and are being appealed.
Tarkington and the alternate public defender fear that in such
cases, “an adequate record” will not have been developed below.
But the mere existence of summary denials is not evidence of
error; it is, of course, entirely possible that the trial courts in
these cases correctly found the petitioners ineligible. As the
instant matter demonstrates, it has not been the case that only
defendants convicted of qualifying crimes under qualifying
theories have petitioned. (See, e.g., People v. Cervantes (2020)
44 Cal.App.5th 884, 886 [petitioner who was convicted of
voluntary manslaughter was ineligible for relief under section
1170.95]; accord, People v. Flores (2020) 44 Cal.App.5th 985, 989;
People v. Turner (2020) 45 Cal.App.5th 428, 438; People v.
Sanchez (May 7, 2020, E072647) __ Cal.App.5th __ [2020
Cal.App.Lexis 389].) And, where ineligibility is ascertainable
based on the record of conviction, no additional record need be
“developed”; to do so would be a waste of resources. Here, for
example, no further record development could change the fact
that Tarkington was the only perpetrator, was the actual killer,
and was not tried under the natural and probable consequences
or felony murder doctrines.
Nor do we detect any possibility that counsel’s absence
could prejudice a petitioner in a significant way, or that counsel’s
presence at this stage is necessary to preserve his or her rights.
The instant case provides an apt illustration of why this is so.
The court’s ruling turned on one simple, easily ascertainable, and
undisputed fact: Tarkington was the actual killer. It is unclear
how appointed counsel could have assisted Tarkington in any
meaningful way. Tarkington is ineligible as a matter of law, pure
27
and simple; counsel’s representation could have done nothing to
change that fact.
6. Reversal is not required
To the extent Tarkington intends to argue that the court’s
order must be reversed because the court failed to specify what
portions of the record it relied upon, we disagree. To facilitate
appellate review and ensure a clear record, a court ruling on a
section 1170.95 petition should indicate on the record, and in its
order or in a minute order, what materials it reviewed and relied
upon to make its ineligibility finding. The court did not do so
here. But the omission is of no moment.
As noted, in making the threshold determination of
eligibility, a court may rely upon readily ascertainable materials
in the court file and record of conviction.15 (Verdugo, supra, 44
Cal.App.5th at pp. 329–330, rev.gr.; Lewis, supra, 43 Cal.App.5th
at pp. 1137–1138, rev.gr.) Certainly, it would not have been
difficult to glean from the record here that Tarkington was
ineligible. That the court did examine the record is evident from
its description of the case in its written order. We have taken
15
The dissent frames the issue before us as whether a court,
prior to the appointment of counsel or briefing, may “examine its
records or its memory” to determine whether the prima facie
showing was met. (Dis. opn., post, at p. 10, italics added.) This is
a red herring. We do not hold that a court can simply rely on its
memory of a case to make an eligibility or entitlement finding,
the parties do not so argue, we are unaware of any court that has
so held, and—as the dissent seems to acknowledge—the trial
court did not do so here. (Dis. opn., post, at p. 23.) Memory is
fallible, and obviously does not suffice. A court’s ruling on the
first prima facie eligibility showing must be based on the record
in the case.
28
judicial notice—at Tarkington’s request—of the record in his
case.16 As discussed, it indisputably shows Tarkington is
ineligible. This is not a case in which the court may have made a
factually erroneous finding. Thus, the trial court’s failure to
sufficiently identify the portions of the record upon which it relied
does not warrant reversal.
16
Given that we have taken judicial notice of the record in
this case at Tarkington’s request, the dissent’s criticism that our
holding rests on our “independent review of the record,” is
curious. (Dis. opn., post, at p. 25.) And, contrary to the dissent’s
assertion that review of the record is likely to be a time-
consuming task that the Legislature hoped to spare the courts,
we can confirm that the time required to review the relevant
portions of the record in this case—i.e., the jury instructions, the
verdict forms, and our prior opinion in the case—did not prove to
be onerous.
29
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION
EDMON, P. J.
I concur:
EGERTON, J.
30
LAVIN, J., Dissenting:
Defendant Anthony Lyle Tarkington filed a petition for
resentencing under Penal Code section 1170.95 that was
complete, filed in the correct court, served on the right parties,
and alleged eligibility under the statute. He also requested the
appointment of counsel. This appeal presents the following
question: May a trial court summarily deny a statutorily-
compliant resentencing petition without appointing counsel if it
determines that the petitioner was the actual killer and,
therefore, not entitled to statutory relief? I would hold that the
answer to that question is “no,” and reverse. Therefore, I
respectfully dissent.
PROCEDURAL BACKGROUND
By information dated December 18, 1996, Tarkington was
charged with one count of murder (Pen. Code,1 § 187, subd. (a);
count 1) with a knife (§ 12022, subd. (b)). The information also
alleged Tarkington had been convicted of three prior strikes in
1982 (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). After a trial,
a jury convicted him of second degree murder and found the
personal-use and strike allegations true. The court imposed a
third-strike sentence of 46 years to life—three times the required
term of 15 years to life for count 1 plus one year for the personal-
use allegation. (See § 1170.12, subd. (c)(2)(A)(i).)
On January 28, 2019, Tarkington filed a petition for
resentencing under section 1170.95. The petition asked the court
to appoint counsel to represent him during the resentencing
process.
1
All undesignated statutory references are to the Penal Code.
On February 13, 2019, the court issued the following order
denying the petition:
“The Court has considered the petition for
resentencing filed by defendant Anthony
Tarkington on January 28, 2019.
“In 1997, Tarkington was convicted of second degree
murder for stabbing a man to death on June 22,
1996. The victim was waiting on line for free donuts
and coffee in the skid row area of Los Angeles.
Tarkington was convicted in part when DNA
confirmed a spot of blood on his shoe was the
victim’s.
“As the actual killer, Tarkington is not entitled to
relief under Penal Code § 1170.95.
“The petition for resentencing is unmeritorious and
is denied.”
The minute order of that date noted that Tarkington was
not present and was not represented by counsel. The record does
not reveal the basis for the court’s factual conclusions.
Tarkington filed a timely notice of appeal.
DISCUSSION
Tarkington contends the trial court erred by summarily
denying his resentencing petition without appointing an attorney
to represent him or receiving briefing from the prosecution. The
People argue that because Tarkington was the actual killer,
section 1170.95 does not apply to him, and he cannot receive any
benefit from it, including the appointment of counsel; they do not
explain what process the court should use to reach that
2
conclusion. The majority holds that the trial court may review the
record of conviction to determine whether it “conclusively shows
that the defendant is ineligible as a matter of law” before
appointing counsel or receiving a responsive brief from the
prosecution; if so, it may summarily deny the petition. (Maj. opn.
ante, p. 26.)
I agree with Tarkington.
1. Senate Bill No. 1497
Murder is “the unlawful killing of a human being … with
malice aforethought.” (§ 187, subd. (a).) Malice may be express or
implied. (§ 188.) Express malice is the intent to kill, whereas
implied malice exists “where the defendant … acted with
conscious disregard that the natural and probable consequences
of [his] act or actions were dangerous to human life. [Citation.]”
(People v. Gonzalez (2018) 5 Cal.5th 186, 197.)
“Not all murder requires the People to prove the defendant
killed intentionally or with conscious disregard for life,” however.
(People v. Rios (2000) 23 Cal.4th 450, 460, fn. 6.) A killing may
also become murder by operation of the felony-murder rule.
“Under the felony-murder rule, a homicide is murder when it
occurs in the course of certain serious and inherently dangerous
felonies. [Citations.] In such cases, the intent to commit a
dangerous felony that actually results in death is substituted for
malice, thus establishing the extent of culpability appropriate to
murder. [Citations.]” (Ibid.) “Felony-murder liability,” therefore,
“does not require an intent to kill, or even implied malice, but
merely an intent to commit the underlying felony. [Citation.]”
(People v. Gonzalez (2012) 54 Cal.4th 643, 654.)
“Murder is divided into first and second degree murder.
(§ 189.) ‘Second degree murder is the unlawful killing of a human
3
being with malice … .’ ” (People v. Chun (2009) 45 Cal.4th 1172,
1181.) “If the … killing was also deliberate and premeditated, the
jury could convict the defendant of first degree murder.” (People
v. Gonzalez, supra, 5 Cal.5th at p. 197.) Felony murder, on the
other hand, was formerly divided into degrees based on the felony
committed. “If the felony [was] listed in section 189, the murder
[was] of the first degree; if not, the murder [was] of the second
degree. [Citations.]” (People v. Gonzalez, supra, 54 Cal.4th at
p. 654.)
Senate Bill No. 1437 (S.B. 1437), which took effect on
January 1, 2019, changed these rules to ensure a “person’s
culpability for murder [is] premised upon that person’s own
actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1,
subd. (g).)
First, S.B. 1437 limited accomplice liability for murder.
Under prior California law, every accomplice to an enumerated
felony could be convicted of first degree murder if a death
occurred during the commission of that felony—regardless of
whether the accused killed or intended to kill. (See People v.
Dillon (1983) 34 Cal.3d 441, 462–472.) Similarly, “a defendant
who aided and abetted a crime, the natural and probable
consequence of which was murder, could be convicted not only of
the target crime but also of the resulting murder”—regardless of
whether he acted with malice aforethought. (In re R.G. (2019) 35
Cal.App.5th 141, 144.)
Now, however, a person may be convicted of first degree
murder only if: he was the actual killer; or with the intent to kill,
he aided and abetted the actual killer’s commission of first degree
murder; or he acted as a “major participant” in a felony listed in
section 189 and with “reckless indifference to human life.” (§ 189,
4
subd. (e), as amended by Stats. 2018, ch. 1015, § 2; § 188,
subd. (a)(3) [“Except as stated in subdivision (e) of section 189, in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice may not be imputed to a person
based solely on his or her participation in a crime.”], as amended
by Stats. 2018, ch. 1015, §3.)2
Second, S.B. 1437 abolished second degree felony murder.
(Stats. 2018, ch. 1015, §2, amending § 188, subd. (e)(3).) Thus, the
felony murder doctrine now applies only to those felonies listed in
section 189, subdivision (a), and to accomplices who meet the
requirements in section 189, subdivision (e).
In addition to changing the law of murder prospectively,
S.B. 1437 gave people who had been convicted under one of the
now-invalid theories the opportunity to petition for resentencing
under newly-enacted section 1170.95. (Stats. 2018, ch. 1015, § 4.)
Section 1170.95, subdivision (a),3 describes who may petition for
resentencing under the statute. Subdivision (b) explains what
information the petition must contain, where the petitioner must
file it, who the petitioner must serve, and what the court should
do if it’s incomplete. Subdivision (c)—the section at issue here—
describes the process the court uses to determine whether the
petitioner is entitled to an evidentiary hearing. Finally,
subdivisions (d)–(g) describe the procedures for holding an
evidentiary hearing, the type of evidence that may be admitted,
2
In addition, an accomplice may be still be convicted of first
degree felony murder if the victim was a peace officer engaged in
the performance of his duties, and the accomplice knew or
reasonably should have known this. (§ 189, subd. (f).)
3
All undesignated subdivision references are to section 1170.95.
5
the burden of proof, and the requirements for resentencing an
eligible petitioner.
2. Standard of Review
Section 1170.95’s procedural requirements are a
“question[ ] of statutory interpretation that we must consider de
novo.” (People v. Prunty (2015) 62 Cal.4th 59, 71.) As with any
case involving statutory interpretation, our primary goal is to
ascertain and effectuate the lawmakers’ intent. (People v. Park
(2013) 56 Cal.4th 782, 796.) To determine intent, we first
examine the statutory language and give the words their
ordinary meaning. (Ibid.)
If the statutory language is unambiguous, its plain
meaning controls; if the statutory language is ambiguous, “ ‘ “we
may resort to extrinsic sources, including the ostensible objects to
be achieved and the legislative history.” [Citation.] Ultimately we
choose the construction that comports most closely with the
apparent intent of the lawmakers, with a view to promoting
rather than defeating the general purpose of the statute.
[Citations.]’ ” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313,
321.)
3. Section 1170.95
Section 1170.95 establishes a four-step resentencing
process: the petition, the prima facie review, an evidentiary
hearing, and the resentencing.
The court uses the first two steps to evaluate whether the
petitioner is entitled to an evidentiary hearing: First, the court
assesses the petition’s sufficiency. That is, did the petitioner
comply with the requirements of section 1170.95, subdivision (b)?
If the answer is yes, the court proceeds to step two, in which,
6
using the process laid out in subdivision (c), the court determines
whether the petitioner has made a prima facie showing that he or
she is entitled to relief. If so, the court must issue an order to
show cause why relief should not be granted and proceed to step
three, the evidentiary hearing. If not, the court may deny the
petition.
3.1. Does the petition comply with subdivision (b)?
The process begins when the petitioner files and serves a
petition that complies with the requirements of section 1170.95,
subdivision (b)(1). Subdivision (b)(1) states:
“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.
7
“(C) Whether the petitioner requests the
appointment of counsel.”
(§ 1170.95, subd. (b)(1).) To comply with subdivision (b)(1)(A), the
petitioner must declare that “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.”
(§ 1170.95, subd. (a).)
A petition is sufficient if it meets the requirements of
subdivision (b)(1). On the other hand, if the petitioner does not
comply with subdivision (b)(1), and the court cannot readily
supply any missing information, the court may summarily deny
the petition under subdivision (b)(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
8
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.”
(§ 1170.95, subd. (b)(2), italics added.)
The court’s review at this stage is narrow: Did the
petitioner check the correct boxes? Does the case number exist?
Was the petition filed in the right county? Were the necessary
parties served? Nevertheless, subdivision (b)(2) demonstrates
that the Legislature knew how to give the courts power to deny
petitions summarily. It did so in subdivision (b)(2). But it did not
do so anywhere else in the statute.
3.2 Is the petitioner entitled to an evidentiary
hearing?
If the petition is sufficient—that is, if it complies with the
requirements in section 1170.95, subdivision (b)—the court
moves on to the briefing stage, described in subdivision (c), in
which it tests the allegations in the petition:
“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’s response is served.
These deadlines shall be extended for good cause. If
the petitioner makes a prima facie showing that he
9
or she is entitled to relief, the court shall issue an
order to show cause.”
(§ 1170.95, subd. (c).)
This court is asked to interpret subdivision (c) to decide the
exceedingly narrow question of what must occur—and in what
order—after the court receives a complying petition but before it
issues an order to show cause. Specifically, does the first sentence
of subdivision (c) allow the court—before appointing counsel or
receiving responsive briefs—to examine its records or its memory,
determine the petitioner has not made the required prima facie
showing, and summarily deny the petition? I conclude it does not.
4. Plain Meaning
At first blush, subdivision (c) seems clear. The first
sentence states the rule: “The court shall review the petition and
determine if the petitioner has made a prima facie showing that
[he or she] falls within the provisions of this section.” (§ 1170.95,
subd. (c).) The rest of the subdivision establishes the process for
complying with that rule: Appoint counsel, if requested. Wait for
the prosecutor’s required response and the petitioner’s optional
reply. If the petitioner makes a prima facie showing, issue an
order to show cause.
10
Nevertheless, the majority points to a tension between
subdivision (c)’s use of prima facie in both the first sentence4 and
the last sentence.5 (Maj. opn. ante, at pp. 10–11.)
5. Legislative History
The majority “agree[s] the statutory language requiring
appointment of counsel is mandatory,” but concludes “the
statutory language is ambiguous” as to “when such appointment
is required.” (Maj. opn. ante, at pp. 10–11.)6 Likewise, the District
4
“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.” (§ 1170.95, subd. (c),
italics added.)
5
“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.”
(§ 1170.95, subd. (c), italics added.)
6
Following People v. Lewis (2020) 43 Cal.App.5th 1128 (Lewis)
(rev. granted Mar. 18, 2020, S260598), the majority concludes
that the sentences in subdivision (c) are organized
“chronologically” and, because “prima facie” appears twice, the
petitioner must make two prima facie showings. (Maj. opn. ante,
at pp. 11–12.) That is, the first sentence of subdivision (c)
requires the court to determine whether the petitioner has made
a prima facie showing that he falls within the provisions of the
statute. (§ 1170.95, subd. (c).) The requirement to appoint counsel
appears in the second sentence. (Ibid.) Because the first sentence
appears before the second sentence, the court must make a “first”
prima facie determination before appointing counsel. (Lewis, at
pp. 1139–1140.)
But Lewis’s holding rests on a false premise. Certainly, as that
opinion notes, the subdivisions in section 1170.95 proceed
chronologically. (Lewis, supra, 43 Cal.App.5th at p. 1140.) But it
does not follow, as Lewis assumes, that the sentences within each
subdivision are likewise chronological. To the contrary, they
11
Attorney, as amicus curiae, suggests that “the statutory language
is ambiguous about whether the court must appoint counsel in all
petitions or only after the court finds a prima facie case.” To
resolve the question of whether subdivision (c) contemplates one
prima facie showing or two, I turn to the legislative history.
5.1. Every version of S.B. 1437 contemplated that
petitioners would be represented by counsel
upon filing a sufficient petition.
S.B. 1437’s textual history clarifies that the Legislature
contemplated a petitioner would be represented by counsel upon
filing a sufficient petition, and counsel would help the court
determine whether to hold a resentencing hearing. (See, e.g.,
Pacific Bell v. Public Utilities Com. (2000) 79 Cal.App.4th 269,
279, fn. 4 [“Successive drafts before the Legislature may be
helpful in interpreting a statute when its meaning is unclear.”].)
S.B. 1437 was introduced on February 16, 2018, and
amended twice—once in the Senate, on May 25, 2018, and once in
the Assembly, on August 20, 2018. (S.B. 1437, Sen. Final Hist.
(2017–2018 Reg. Sess.) p. 664.) The August 20, 2018 version of
plainly are not. Take subdivision (b) for example. Subdivision
(b)(1) starts by explaining that the petition must be filed in the
sentencing court. Then, it lists the people and agencies that must
be served. Next, it circles back to note that if the original
sentencing judge is not available, the presiding judge can appoint
someone else to rule on the petition. Only after addressing filing,
service, and the decision-maker does it mention what the petition
should say. Then, its focus returns to the decision-maker, who
may deny the petition if it is missing required information. I see
no reason to assume subdivision (c) proceeds chronologically
when subdivision (b) clearly does not.
12
the bill was then passed by the Senate and signed into law.
(Ibid.)
As introduced, S.B. 1437 required the court, upon receipt of
a complying petition, to assemble various documents,7 notify
counsel that a petition had been filed, and request a written
response. The notice section stated:
“The court shall also provide notice to the attorney
who represented the petitioner in the superior court
and to the district attorney in the county in which
petitioner was prosecuted. Notice shall inform each
that a petition has been filed pursuant to this
section and shall request that a response be filed
from both parties as to whether the petitioner is
entitled to relief.”
(S.B. 1437 (2017–2018 Reg. Sess.) as introduced Feb. 16, 2018,
§ 6.)
Apparently realizing that petitioners’ trial attorneys might
not still be available, on May 25, 2018, the Senate amended the
bill to allow the court to provide notice either “to the attorney
who represented the petitioner in the superior court, or to the
public defender if the attorney of record is no longer
available … .” (S.B. 1437 (2017–2018 Reg. Sess.) as amended May
7
The court was required to obtain: a copy of the charging
document; the abstract of judgment; if the conviction was by plea,
a copy of the reporter’s transcript of the plea; if a trial was held,
the verdict forms; the sentencing transcript; and “[a]ny other
information the court finds relevant to its decision, including
information related to the charging, conviction, and sentencing of
the petitioner’s codefendants in the trial court.” (S.B. 1437 (2017–
2018 Reg. Sess.) as introduced Feb. 16, 2018, § 6.)
13
25, 2018, § 6, italics omitted, bold added.) It also upgraded the
briefing requirement from a “request that a response be filed
from both parties” to an order “that a response from both
parties … is required to be filed within 60 days.” (S.B. 1437
(2017–2018 Reg. Sess.) as introduced Feb. 16, 2018, § 6; id., as
amended May 25, 2018, § 6.)
On August 20, 2018, the Assembly amended S.B. 1437 to
relieve the trial courts of most of these tasks. As amended, the
bill no longer required the court to compile records, notify the
parties, or request briefing. (S.B. 1437 (2017–2018 Reg. Sess.) as
amended Aug. 20, 2018, § 4.) Instead, the amended bill required
the petitioner to notify the prosecutor and either his trial attorney
or the public defender by serving them with copies of the petition.
(Ibid.) It also required him to state whether he requested the
appointment of counsel. (Ibid.) This provision became section
1170.95, subdivision (b).
Similarly, in the Assembly version, the court no longer had
to order the prosecutor and defense counsel to respond to the
petition within 60 days. Instead, only the prosecutor had to
respond—and the deadline was automatic. The court still had to
appoint counsel to represent the petitioner, but that requirement
was made explicit and only upon request. This amendment also
offered greater flexibility: The court could appoint a new lawyer if
trial counsel were no longer available, and petitioners could
retain private counsel or represent themselves if they wished to
do so. This provision became section 1170.95, subdivision (c).
In sum, the first two versions of S.B. 1437 assumed that
once he filed a sufficient petition, the petitioner would be
represented by counsel—either because he was already
represented or because the court would issue any order necessary
14
to effectuate the representation; the final version of the bill
explicitly requires the court to appoint counsel on request. But
there is no indication the Legislature’s views about timing
changed.
To the contrary, if the Legislature had anticipated that the
court would undertake its own review of the merits of the petition
as an intermediate step before appointing counsel, it would have
calculated the deadlines not from the date of service of the
petition but instead from the date the court completed its initial
review. And though the Legislature required the prosecution to
respond within 60 days of being served with the petition, it did
not create a deadline for the court to conduct an intermediate
review. Nor is there any provision allowing the court to relieve
the parties of these statutory requirements.8
By omitting those steps, the Legislature signaled it did not
intend for the court and prosecutors to duplicate their efforts by
conducting the same review of the same documents at the same
time. Instead, it appears from the history outlined above that the
bill was revised to ensure every petitioner who wanted a lawyer
would have one—not to impose a barrier where none had existed.
8
Significantly, this differs from habeas corpus proceedings, in
which filing the petition triggers a deadline for the court—not for
the parties. (Cal. Rules of Court, rule 4.551(a)(3)(A).) Likewise, in
habeas proceedings, a response need only be filed if the court
requests one, and it’s the court’s request that triggers the
deadline for the response. (Id., rules 4.551(a)(4)(C), 4.551(b).)
15
5.2. The Legislature rejected a request to allow courts
to deny petitions summarily without appointing
counsel.
Certainly, that is the procedure the bill’s author, justice
community stakeholders, and the Governor believed was being
enacted. Perhaps the clearest expression of the Legislature’s
intent on this point is its decision to reject the typical
postconviction procedure. (See, e.g., Kelly v. Methodist Hospital of
So. California (2000) 22 Cal.4th 1108, 1116 [relying on rejection
of proposed amendment to interpret statute].)
On August 20, 2018, the Assembly passed what would
become the final version of S.B. 1437, and returned the bill to the
Senate. As relevant here, the Assembly’s amendments shifted
responsibility for gathering documents from the court to
prosecutors, shifted responsibility for serving counsel from the
court to the petitioner, clarified that the court must, upon
request, appoint counsel to represent the petitioner, and clarified
the showing a petitioner must make to qualify for a resentencing
hearing.9 (Compare S.B. 1437 (2017–2018 Reg. Sess.) as amended
May 25, 2018, with id., as amended Aug. 20, 2018.)
On August 28, 2018, shortly after the Assembly passed the
amended version of S.B. 1437, the Judicial Council wrote to
Senator Nancy Skinner, chairwoman of the Senate Public Safety
Committee and the bill’s author, to request additional changes.
The letter explained that the “council appreciate[d] the
9
As first introduced in the Senate, S.B. 1437 required the court
to hold a resentencing hearing if it found there was “sufficient
evidence that the petitioner falls within the provisions of this
section … .” (S.B. 1437 (2017–2018 Reg. Sess.) as introduced Feb.
16, 2018, § 6, italics added.)
16
August 20, 2018 amendments, which include[d] the majority of
the amendments requested by the council.” (Sharon Reilly, Jud.
Council of Cal., letter to Sen. Nancy Skinner (2017–2018 Reg.
Sess.) Aug. 28, 2018, p. 1, available at
[as of May 26, 2020], archived at
[hereafter Jud. Council letter].)
Nevertheless, the Council stressed, “the bill should be amended
to authorize courts to summarily dismiss petitions that do not
make a prima facie case without a hearing consistent with
petitions for writs of habeas corpus and for resentencing under
Proposition 36 and Proposition 47.” (Id. at pp. 1–2, fn. omitted.)
The letter continued:
“Consistent with these other provisions of law, the
council believes that it is more efficient for courts to
have the ability to deny petitions filed pursuant to
SB 1437 early in the process when they do not make
a prima facie showing. …
“[T]he council is concerned that appointing counsel
and involving the prosecution in the petition process
before an initial review by the court will place
unnecessary burdens on courts and on the
prosecutors and public defenders to review and
respond to petitions that the judge will ultimately
summarily deny at a hearing because the petition
does not make a prima facie showing.”
(Jud. Council letter, supra, p. 2.)
17
Thus, the Judicial Council asked Senator Skinner to amend
S.B. 1437 to adopt the following procedure:
1. Upon receiving the petition, “the court shall
determine whether the petitioner has made a
prima facie showing that [he or she] falls
within the provision of the bill …”; “before
making that determination,” “the court may”—
but is not required to—“request an informal
response from the prosecutor”;
2. “if the court determines that the petitioner” has
made “a prima facie showing, the court shall
issue an order to show cause (OSC)”;
3. only then must the court appoint counsel to
represent the petitioner;
4. within 60 days of service of the OSC, rather
than from service of the petition, the prosecutor
must file and serve a response; the petitioner
may reply within 30 days after that; and
5. the court shall hold a hearing 60 days after
briefing is complete.
(Jud. Council letter, supra, p. 2, italics added.) In short, the
Judicial Council urged the Legislature to adopt the procedure the
majority suggests the statute already requires—the procedure
used in this case.
The Senate passed S.B. 1437 as amended on August 30,
2018. On September 13, 2018, the Judicial Council sent a similar
letter to the Governor, urging him to veto the bill. (Cory T.
Jasperson, Jud. Council of Cal., letter to Governor Edmund G.
18
Brown, Jr. (2017–2018 Reg. Sess.) Sept. 13, 2018, available at
[as of May 26, 2020], archived at
.)
Other groups opposed the bill for similar reasons. For
example, the San Diego District Attorney urged the Governor to
veto the legislation because, among other reasons:
“To petition for resentencing, SB 1437 requires that
a person seeking resentencing merely submit a
request indicating that he or she was convicted of
murder; that the prosecution theory for murder
could have included felony murder, or murder by
natural and probable consequences; that [the
petitioner] could not have been convicted [of
murder] under current law; and the superior court
case number, the year of conviction, and whether
the petitioner requests the appointment of counsel.
“The prosecutor would be required in each and
every case in which a petition has been filed,
to research the facts and theories upon which a
murder conviction was based, and respond
accordingly.”
(Summer Stephan, San Diego Dist. Atty., letter to Governor
Edmund G. Brown, Jr. (2017–2018 Reg. Sess.) Sept. 4, 2018,
Governor’s chaptered bill files, ch. 1015, p. 2, bold added; see id.
at p. 3 [S.B. 1437 “does not provide an adequate mechanism to
deter frivolous petitions”].)
Ultimately, however, although the Judicial Council and
other stakeholders had urged it to adopt procedures “consistent
19
with petitions for writs of habeas corpus and for resentencing
under Proposition 36 and Proposition 47,” the Legislature
rejected that approach. (Jud. Council letter, supra, p. 2, fns.
omitted.) Instead, it created new, different rules. Under those
new rules, when the court receives a sufficient petition, it must
appoint counsel if the petitioner has requested it; the prosecutor
must take a position on whether the petitioner is eligible for a
resentencing hearing; and the court must give the petitioner,
represented by counsel, a chance to respond. I assume that choice
was intentional.
Nevertheless, the majority declines to consider the Judicial
Council’s views because, it insists, letters to the Governor are
“not cognizable legislative history.” (Maj. opn. ante, p. 18.) The
majority is mistaken: This was not just any letter; it was a letter
from the Judicial Council of California.
“The Judicial Council is the policymaking body of the
California courts, the largest court system in the nation. Under
the leadership of the Chief Justice and in accordance with the
California Constitution, the council is responsible for ensuring
the consistent, independent, impartial, and accessible
administration of justice. Judicial Council staff help implement
the council’s policies.” ( [as of May 26, 2020], archived at .) Broadly, the Judicial Council is to the Chief Justice as
executive agencies are to the Governor.
As such, reports from the Judicial Council to the Governor
are official statements from the judicial branch, and are
analogous to the enrolled bill reports executive agencies present
to the Governor after a bill’s passage and before the Governor
signs it. And enrolled bill reports are proper legislative history.
20
(See, e.g., People v. Ruiz (2018) 4 Cal.5th 1100, 1111, fn. 3 [“We
have often found enrolled bill reports to be ‘ “instructive” ’ as to
the Legislature’s intent, purpose, and understanding in enacting
a statute, because they are ‘generally prepared within days after’
the statute’s passage and are written by ‘governmental
department[s] charged with informing the Governor about the
[statute] so that he can decide whether to sign it, thereby
completing the legislative process.’ [Citation.]”]; see also Pacific
Bell v. Public Utilities Com., supra, 79 Cal.App.4th at p. 279
[citing correspondence from the Judicial Council to the bill’s
author as evidence of legislative intent in successive drafts of
legislation]; Ghanooni v. Super Shuttle (1992) 2 Cal.App.4th 380,
387–388 [considering unadopted Judicial Council proposals as
indicators of legislative intent].)10
6. Appointment of counsel is not an absurd result.
Nor is appointment of counsel for all petitioners who file
complying petitions an absurd result the Legislature could not
possibly have intended. (See People v. Escarcega (2019) 32
Cal.App.5th 362, 381.)
To be sure, the Public Defender and Alternate Public
Defender, as amici curiae, acknowledge there may be scenarios in
which, as a practical matter, the court would be able, summarily
10
The majority attempts to distinguish these cases on the ground
that the Judicial Council letters were communicated to the
various committee chairs rather than to the bill’s author. (Maj.
opn. ante, pp. 22–23, fn. 14.) Yet they appear to agree that letters
communicated to committee chairs are proper legislative history.
(Ibid.) Here, the letter was written to Senator Skinner, who not
only authored S.B. 1437, but was also the chairwoman of the
Senate Public Safety Committee.
21
and without controversy, to deny a complying petition under
section 1170.95 without the benefit of briefing. But both amici
express concerns about the contours of such a rule and urge that
it should not apply if the petitioner was convicted of a potentially
qualifying offense or in cases in which “there is any legally
cognizable theory that might be advanced as to why a petitioner
might be entitled to relief … .” Similarly, the District Attorney
suggests the court should appoint counsel unless “the petition
and any reasonably available court records … conclusively show
that the defendant is ineligible as a matter of law … .”
Against these amorphous standards, appointment of
counsel upon filing of a facially valid petition presents a clear,
easy-to-apply rule. The question, then, is whether the Legislature
could not possibly have intended the consequences of such a
bright-line rule. I see no absurdity.
First, the majority has not persuaded me that summarily
denying petitions without appointing counsel would further
judicial economy. As amicus curiae Professor Kate Chatfield
notes, clear-cut “cases can be addressed expeditiously while still
complying with the statute and providing a petitioner the process
he or she is due.” If, based on the record of conviction or the facts
of the case, a petition is clearly meritless, the prosecutor can
submit a simple brief summarizing why the petitioner is not
entitled to a resentencing hearing. Such a brief need be no longer
than the order the court prepared in this case. In response,
counsel for petitioner may simply submit on the record.
Reviewing such filings places a de minimis extra burden on trial
courts.
22
On the other hand, assembling and reviewing the record to
spot potential claims itself, as the court may have done here,11
rather than relying on counsel to do it, as the statute
contemplates, creates more work for the trial courts, not less—
especially in cases in which the superior court has destroyed
records that the prosecution may still have.12
But even assuming the practice leads to short-term
efficiencies, those savings are a false economy that shifts work
from trial counsel to appellate counsel and from the trial courts
to the appellate courts. As the Public Defender explains:
11
Contrary to the majority’s apparent belief, the record does not
reveal what documents, if any, the trial court reviewed before
concluding that as the actual killer, Tarkington was ineligible for
relief. (Maj. opn. ante, at p. 28, fn. 15.) I note, however, that a
trial court should not resort to information never offered in open
court without affording the parties a reasonable opportunity to
meet such information before judicial notice is taken. (Evid. Code,
§ 455, subd. (b).) One of the corollaries of canon 3 of the Code of
Judicial Conduct (“A Judge Should Perform the Duties of Judicial
Office Impartially, Competently, and Diligently”) is that a judge
must not independently investigate facts in a case and must
consider only the evidence presented, unless otherwise
authorized by law. (Code Jud. Conduct, commentary to canon
3B(7).) Any factual inquiry independently undertaken by the trial
court in this case without affording Tarkington a reasonable
opportunity to meet such information is, in my view,
uncharacteristic of an impartial judge.
12
Indeed, as discussed above, the Legislature removed the
requirement that the courts assume the record-assembly burden
that the majority now places on them. It seems clear that the
Legislature’s intent was for the prosecution to assemble the
records instead of the courts rather than in addition to them.
23
“In cases where judges have denied the petitions
without appointment of counsel, Amicus’s Office has
ended up filing motions to vacate those denials. The
refusals to do so have resulted in our filing Notices
of Appeal, which are wending their way to this
court. We expect a substantial volume of appeals in
this posture. It is likely that this court will remand
for evidentiary hearings in many such cases. If
relief is then denied, yet another appeal will result.”
Similarly, the Alternate Public Defender notes that since
section 1170.95’s effective date, her office “has experienced more
than 100 summary denials” of sufficient petitions “without ever
appointing the A.P.D. and without ever providing an opportunity
to be heard, based solely on the court’s in camera review of the
petition.” As with the Public Defender’s cases, “Notices of appeal
have been filed in virtually all of these cases, but no opportunity
to be heard to flesh out the issues or to develop a record was ever
permitted by the summary denial. This is problematic because
the issues that would have been raised and the facts that would
have been presented had the petitioner been given an
opportunity to be heard have not been resolved by appellate
courts at the time of the denial. As a result, many of these cases
will often need to be remanded to the trial courts in order to
develop that record. The refusal by the superior court to appoint
counsel will likely generate entirely avoidable appellate litigation
which could be avoided by appointing counsel.”
This court’s own experience bears this out: When the court
does not give the parties an opportunity to flesh out the issues,
raise facts not previously before any court, or otherwise develop a
record below, the appellate record we receive is incomplete and
24
difficult to review. Cases in which the prosecution assembles the
record below and writes a short explanatory brief before defense
counsel submits on the record are much less time-consuming on
appeal than cases like this one, in which we cannot even
determine the basis for the trial court’s decision. That is true
even when, as the majority suggests, the court’s ultimate denial
of the petition is correct. (Maj. opn. ante, at pp. 26–27.) Indeed, in
this case, the majority’s conclusion that the court correctly
determined Tarkington was not eligible for resentencing
apparently rests on its independent review of the record in
Tarkington’s prior appeal—a time-consuming task the
Legislature attempted to spare it. (Id. at pp. 27–28.) And its
ability to do so rested on mere luck: Tarkington’s case is recent
enough that we still had the record in our archives. That is not
always true.
Second, because section 1170.95 requires appointment of
counsel, briefing by the prosecutor, the opportunity for
petitioner’s counsel to present a reply brief, and an evidentiary
hearing when necessary, the Legislature understood there would
be costs to local agencies. (Stats. 2018, ch. 1015, p. 95 [“By
requiring the participation of district attorneys and public
defenders in the resentencing process, this bill would impose a
state-mandated local program.”].) Thus, S.B. 1497 provided: “If
the Commission on State Mandates determines that this act
contains costs mandated by the state, reimbursement to local
agencies … for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.” (Stats. 2018, ch. 1015, § 5.)
Third, the judiciary’s resources are not the Legislature’s
only concern. The Legislature can—and apparently did—conclude
25
that the risk courts would erroneously deny petitions by
unrepresented litigants and the substantial cost of continuing to
house those litigants in prison outweighed any efficiencies to be
gained by appointing counsel at a later stage of proceedings. I can
infer the Legislature’s view on this subject because, as discussed
in detail above, the Judicial Council made that very argument to
support its rejected amendment. (Jud. Council letter, supra, p. 2.)
In any event, the question is not, as the Lewis court
appears to suggest, whether “[a]llowing the trial court to consider
its file and the record of conviction” before appointing counsel is
“sound policy.” (Lewis, supra, 43 Cal.App.5th at p. 1138.) The
question is whether it is absurd to believe the Legislature
adopted a different one. (See, e.g., California School Employees
Assn. v. Governing Bd. of South Orange County Community
College Dist. (2004) 124 Cal.App.4th 574, 588 [“We must exercise
caution using the ‘absurd result’ rule; otherwise, the judiciary
risks acting as a ‘ “super-Legislature” ’ by rewriting statutes to
find an unexpressed legislative intent.”]; Austin v. Medicis (2018)
21 Cal.App.5th 577, 597, fn. 7 [“Certainly, as [appellant] argues,
there are compelling policy reasons to support a different rule,
and if the Legislature wishes to apply the tolling rules more
broadly, it may do so. But it is up to the Legislature, and not the
courts, to rewrite this statute—and until it does, we must apply
[the statute] as written.”].)
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7. Conclusion
In this case, Tarkington submitted a petition under
section 1170.95 in which he complied with all the requirements in
subdivision (b) and requested the appointment of counsel. The
trial court was therefore required to appoint counsel to represent
him and await the prosecution’s mandatory response and
Tarkington’s optional reply before deciding whether to issue an
order to show cause. It did not. Therefore, I would remand for the
court to comply with the requirements in section 1170.95,
subdivision (c).
LAVIN, J.
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