People v. Green CA2/2 ( 2020 )

Filed 9/16/20 P. v. Green CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B298835
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA235363)
v.
MICHAEL RAY GREEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Rufo Espinoza, Jr., Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Kristen J. Inberg
and Nathan Guttman, Deputy Attorneys General, for Plaintiff
and Respondent.
Defendant and appellant Michael Ray Green (defendant)
appeals from the summary denial of his petition for resentencing
pursuant to Penal Code section 1170.95.1 Defendant contends
that the trial court failed to follow the mandated procedures. He
also contends that because the court did not expressly find a
procedural defect in the petition, the court erred in finding him
ineligible for relief under the statute and in failing to appoint
counsel as requested in the petition. We find no merit to
defendant’s claims and as defendant has failed to demonstrate
prejudicial error, we affirm the trial court’s order.
BACKGROUND2
Defendant’s 2003 murder conviction
A jury convicted defendant of first degree murder and
found that a principal intentionally and personally used and
discharged a firearm, causing death. (See §§ 187, subd. (a),
12022.53, subds. (b), (c), (d), (e)(1).) The jury further found that
the offense was committed for the benefit of a criminal street
gang within the meaning of section 186.22, subdivision (b)(1).
Since the trial court found that defendant had suffered a prior
serious or violent felony conviction with the meaning of the Three
Strikes Law (§§ 1170.12, subds. (a)-(d, 667, subds. (b)-(i)),
1 All further statutory references are to the Penal Code,
unless otherwise indicated. All references to subdivisions
without reference to a code section are to subdivisions of section
1170.95.
2 Like the parties, we take our summary from the appellate
decision affirming defendant’s 2003 judgment. (See People v.
Green (June 1, 2004, B168254 [nonpub. opn.].)
2
defendant was sentenced to a term of 75 years to life in prison.
The appellate court opinion summarized the relevant facts in
evidence at trial as follows:
At approximately 7:00 p.m. on June 12, 2002, two men, one
armed with a handgun, entered the courtyard of the apartment
complex on South Broadway in Los Angeles in which defendant,
an admitted member of the 69 East Coast Crips gang, lived and
sold drugs. The men asked someone in the courtyard to get
defendant. As defendant walked down the stairs, the man with
the gun asked, “Is that him?” Defendant said, “It’s that fool,”
pointing at Michael Millage, who was in the courtyard selling
drugs. The man with the gun fired three or four shots at Millage.
Millage died as a result of three gunshot wounds.
Earlier that day, defendant had been informed by one of his
roommates that a member of the Bloods gang was in the
apartment complex. Defendant made a telephone call and then
told his girlfriend, Joyce Harris, to go to the East Coast Crips
hangout and tell his fellow gang members that a member of the
Bloods was at his apartment complex. At the hangout, Harris
saw several members of the Crips gang get into two vehicles.
Two of the men had guns they had obtained from defendant’s
brother’s car. As Harris returned to the South Broadway
apartment, she saw four or five of the gang members getting out
of a car, and she witnessed the shooting of Millage. Defendant
later told her that he had “masterminded a murder.”
A Los Angeles police detective testifying as a gang expert
stated that he believed the murder was committed for the benefit
of the Crips gang. The victim was believed by defendant to be a
member of a rival Blood gang and was selling drugs in an area
considered Crips territory in which defendant sold drugs.
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In defense, a friend of defendant’s testified that defendant
was with her at her residence across the street from where
Millage was killed when they heard the shots that killed Millage.
Senate Bill No. 1437
In 2018, the Legislature passed Senate Bill No. 1437 (S.B.
1437) in order to “revise the felony murder rule to prohibit a
participant in the commission or attempted commission of a
felony that has been determined as inherently dangerous to
human life to be imputed to have acted with implied malice,
unless he or she personally committed the homicidal act.”
(Senate Rules Com., Off. Of Senate Floor Analysis, Rep. on Sen.
Bill No. 1437 (2017-2018 Reg. Sess.), as amended Aug. 20, 2018,
p. 6.) S.B. 1437 amended sections 188 and 189, effective January
1, 2019. As amended, section 188 limits a finding of malice as
follows: “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 shall not be imputed to a
person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).) Subdivision (e) of section 189 now requires
that for a participant in the perpetration of a felony listed in
section 189, subdivision (a) in which a death occurs, to be liable
for murder, one of the following must be proven:
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with
the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the
first degree.
“(3) The person was a major participant in the
underlying felony and acted with reckless
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indifference to human life, as described in subdivision
(d) of Section 190.2.”
Pleading requirements
Section 1170.95 was added by S.B. 1437 to provide a
procedure by which those convicted of murder can seek
retroactive relief if the changes in sections 188 or 189 would
affect their previously affirmed convictions. (People v. Martinez
(2019) 31 Cal.App.5th 719, 722.) A petition under section
1170.95 must include the following:
“(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.”
In addition, the petition must include the petitioner’s
declaration showing eligibility for relief under this section, the
superior court case number and year of conviction, and any
requests for the appointment of counsel. (§ 1170.95, subd. (b)(1).)
Defendant’s section 1170.95 petition
In January 2019, defendant filed a petition for resentencing
under the amended statutes. His preprinted petition consisted of
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boxes to be checked next to applicable allegations. Defendant
checked two boxes which allege the following:
“1. A complaint, information, or indictment
was filed against me that allowed the prosecution to
proceed under a theory of felony murder or murder
under the natural and probable consequences
doctrine.
“2a. At trial, I was convicted of 1st or 2nd
degree murder pursuant to the felony murder rule or
the natural and probable consequences doctrine.”
The only other boxes checked on the form were No. 4, requesting
appointment of counsel and No. 8, the proof of service allegation.
On March 29, 2019, the trial court issued a memorandum
decision summarily denying the petition, without appointing
counsel. After reviewing the petition and the court’s file,
including jury instructions, the court found that the jury was not
instructed on either the felony murder rule or the natural and
probable consequences theory, and that the prosecution had
instead relied upon the theory that defendant was a direct aider
and abettor. The court concluded that defendant was thus
ineligible for resentencing.
Defendant filed a timely notice of appeal from the trial
court’s order.
DISCUSSION
Defendant contends that the trial court erred in reviewing
the court file to find him ineligible for relief under section
1170.95.
Missing from defendant’s petition was the section 1170.95,
subdivision (b)(1)(A) requirement that the petition include “[a]
declaration by the petitioner that he or she is eligible for relief
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under this section, based on all the requirements of subdivision
(a).” Subdivision (a)(3) requires an allegation that “[t]he
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January
1, 2019.” Defendant’s petition failed to include this allegation. In
addition, the boxes on the form petition alleging that defendant
could not be convicted of first or second degree murder under the
amended statutes, were left blank. Thus, the petition is
inadequate.
Defendant suggests that because the court did not expressly
find any defect in the petition, the court was required to
immediately appoint counsel and proceed as though the petition
was not deficient on its face. We have found no language in the
statute requiring express findings, or a presumption of
sufficiency when a petition is clearly lacking.
The trial court’s initial determination of the facial
sufficiency of the petition is governed by section 1170.95,
subdivision (b)(2). (People v. Verdugo (2020) 44 Cal.App.5th 320,
328, review granted Mar. 18, 2020, S260493 (Verdugo).)
Subdivision (b)(2) states: “If any of the information required by
[subdivision (b)] is missing from the petition and cannot be
readily ascertained by the court, the court may deny the petition
without prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.” (Italics added.) Thus, as there were
required allegations which were missing from defendant’s
petition, subdivision (b)(2) permitted the court either to deny the
petition without prejudice or look to readily ascertainable
information to make an initial determination of the sufficiency of
the petition. Readily ascertainable information may be in court
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file’s record of conviction, such as the “complaint, information or
indictment filed against the petitioner; the verdict form or factual
basis documentation for a negotiated plea; and the abstract of
judgment.” (Verdugo, at pp. 329-330.) The record of conviction
may also include jury instructions and any appellate opinion in
the case. (See People v. Lewis (2020) 43 Cal.App.5th 1128, 1138-
1139, review granted Mar. 18, 2020, S260598 (Lewis).) Here, the
trial court’s review of the jury instructions to find the information
missing from defendant’s petition was tantamount to an express
ruling that the petition was in fact deficient on its face.
Even if the trial court had determined in its initial review
that defendant’s petition was sufficient, it would not have been
required to immediately appoint counsel. Once the initial review
shows that the petition is facially sufficient, the court proceeds to
section 1170.95, subdivision (c) to determine whether the
petitioner has made a prima facie showing of eligibility for relief.
Section 1170.95, subdivision (c) “requires the trial court to make
two assessments. The first is whether the petitioner has made a
prima facie showing of eligibility for relief.” (People v. Drayton
(2020) 47 Cal.App.5th 965, 975.) “In [the] second step, the trial
[court] considers whether the petitioner has made a prima facie
showing of entitlement to (rather than eligibility for) relief.” (Id.
at p. 976; see Verdugo, supra, 44 Cal.App.5th at p. 330.) The first
assessment is described in subdivision (c) as follows: “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. . . .” The right to counsel does not
attach until the petitioner makes this the first-stage prima facie
showing of eligibility under the statute. (Lewis, supra, 43
Cal.App.5th at pp. 1139-1140; cf. Verdugo, at p. 328.)
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At the first, or eligibility prima facie stage, the trial court
may look to the record of conviction, and may summarily deny
the petition when the record “show[s] as a matter of law that the
petitioner is not eligible for relief.” (Lewis, supra, 43 Cal.App.5th
at p. 1138; see also Verdugo, at p. 330; People v. Cornelius (2020)
44 Cal.App.5th 54, 57-58, review granted Mar. 18, 2020, S260410
(Cornelius).) Thus, even facially sufficient allegations may be
refuted as a matter of law. Defendant disagrees, and making a
comparison to habeas corpus procedure, he argues that the court
must look only to the face of the petition to determine whether a
prima facie showing of eligibility has been made, and if so, the
court must appoint counsel. However, such a comparison is not
helpful. A habeas petition alleging only “pro forma allegations” is
inadequate. (In re Reno (2012) 55 Cal.4th 428, 488.) “‘Conclusory
allegations made without any explanation of the basis for the
allegations do not warrant relief, let alone an evidentiary
hearing.’ [Citation.]” (People v. Duvall (1995) 9 Cal.4th 464,
474.) In determining whether a habeas petition has made a
prima facie showing of entitlement to relief, the court takes
petitioner’s factual allegations as true (Cal. Rules of Court, rule
4.551(c)(1)); however, the court is not required to assume the
allegations are true if they are directly contradicted by the court’s
own records. (In re Serrano (1995) 10 Cal.4th 447, 456.)
Here, defendant’s petition was not facially adequate.
Defendant failed to check even those boxes that would have
provided conclusory explanations for his claim of eligibility. “‘It
would be a gross misuse of judicial 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
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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.’ [Citation.]” (Lewis,
supra, 43 Cal.App.5th at p. 1138, quoting Couzens et al.,
Sentencing Cal. Crimes (The Rutter Group 2019) 23:51(H)(1), pp.
23-150 to 23-151.)
We conclude that the trial court correctly reviewed its file
regarding defendant’s murder conviction to find, as a matter of
law, that the prosecution did not proceed against defendant
under the felony murder rule or the natural and probable
consequences doctrine. As defendant’s petition did not establish
a prima facie showing of eligibility, the court was not required to
proceed to the second stage assessment of section 1170.95,
subdivision (c) to determine whether defendant had made a
prima facie showing of entitlement to relief under the statute.
The trial court’s order is presumed correct and it is
defendant’s burden as the appellant to demonstrate error.
(People v. Garza (2005) 35 Cal.4th 866, 881.) Moreover, it is
defendant’s burden to provide an adequate record to support his
claim. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We
granted defendant’s request for judicial notice of the entire
appellate record filed in his 2004 appeal, People v. Green, supra,
B168254. However, defendant did not lodge any part of that
record, and the only portion of the 2004 record to which
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defendant has referred is the appellate decision. Other than
urging the belief that the trial court failed to properly follow the
procedure under section 1170.95, a claim we have rejected,
defendant cites no portion of the 2004 record that might show
that the trial court misinterpreted the jury instructions or
otherwise erred in finding defendant ineligible as a matter of law.
We thus agree with respondent that defendant has not met his
burdens.
Moreover, defendant has not shown prejudice from the
asserted errors. It is defendant’s burden as appellant to show
that any claimed error was prejudicial and to provide an
adequate record. (Denham v. Superior Court, supra, 2 Cal.3d at
p. 564.) Defendant counters that it is not his burden to show
prejudice because he had the right to appointed counsel under
the Fifth and Sixth Amendments to the federal constitution, and
summary denial without the appointment of counsel violated his
right to due process.
Contrary to defendant’s reasoning, prisoners have no
“constitutional right to counsel when mounting collateral attacks
upon their convictions [citation].” (Pennsylvania v. Finley (1987)
481 U.S. 551, 555.) Under the federal constitution, the right to
appointed counsel extends only to trial and the first appeal; and
when states enact statutes to provide other postconviction relief,
they have substantial discretion to develop and implement such
programs. (Id. at pp. 557-559.) In California, examples can be
found in the rules governing petitions for writ of habeas corpus
and coram nobis which require the petition to state a prima facie
showing of entitlement to relief before the court appoints counsel.
(People v. Fryhaat (2019) 35 Cal.App.5th 969, 982.)
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Defendant also contends that his petition reached a
“critical stage” of the criminal process, requiring the appointment
of counsel, and that the trial court’s failure to appoint counsel
was “structural error” which relieved him of showing of prejudice.
Defendant relies on a comparison to People v. Rouse (2016) 245
Cal.App.4th 292, 296-297, which held that resentencing under
section 1170.18 (Prop. 47) is a critical stage of the criminal
process requiring the appointment of counsel. Rouse does not
help defendant, as its holding was limited to petitioners who had
passed the initial eligibility stage and had been found eligible
under the statute. (Rouse, at pp. 299-300.) The court compared
the procedure to habeas corpus and coram nobis, where once “a
postconviction petition by an incarcerated defendant ‘attacking
the validity of a judgment states a prima facie case leading to
issuance of an order to show cause, the appointment of counsel is
demanded by due process concerns.’ [Citations.]” (Id. at p. 300,
italics added, citing In re Clark (1993) 5 Cal.4th 750, 780 [habeas
corpus], and People v. Shipman (1965) 62 Cal.2d 226, 232-233
[coram nobis].) Defendant did not get to that stage. He failed to
make a prima facie showing that he came within the provisions of
section 1170.95, which would have triggered a statutory right to
counsel. (§ 1170.95, subd. (c); see Cornelius, supra, 44
Cal.App.5th at p. 58; Verdugo, supra, 44 Cal.App.5th at pp. 332-
333; Lewis, supra, 43 Cal.App.5th at p. 1140.)
Defendant was thus not excused from his burden to
demonstrate both error and prejudice, and as he has done
neither, his claims do not warrant reversal.
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DISPOSITION
The order of the superior court denying defendant’s section
1170.95 petition is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
HOFFSTADT
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