People v. Forch CA2/8 ( 2022 )

Filed 7/5/22 P. v. Forch CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, e xcept 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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B296637
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA030634)
v.
FRANKLIN LARANCE
FORCH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Kathleen Blanchard, Judge. Affirmed.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez,
Idan Ivri and Nancy Lii Ladner, Deputy Attorneys General, for
Plaintiff and Respondent.
**********
In January 2005, defendant and appellant Franklin
Larance Forch was charged with nine felonies, including one
count of murder, and two misdemeanor offenses arising from an
incident on September 26, 2004, in which defendant attacked his
mother and stepfather. His stepfather died from his injuries.
In 2009, pursuant to a negotiated plea agreement,
defendant pled no contest to the murder of his stepfather and
admitted a prior qualifying strike conviction, a felony
enhancement (Pen. Code, § 667, subd. (a)(1)), and four prison
priors (§ 667.5, subd. (b)). The court accepted defendant’s plea
and waivers on the record and counsel stipulated to a factual
basis for the plea. The remaining counts were dismissed.
Defendant was sentenced to state prison for a term of 23 years to
life and awarded 1,853 days presentence custody credits. This
court affirmed defendant’s conviction (People v. Forch (Feb. 7,
2011, B221505) [nonpub. opn.]).
In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was
passed. Penal Code section 1170.95 was enacted as part of the
legislative changes effected by Senate Bill 1437 and became
effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
On January 7, 2019, defendant filed a petition in propria
persona requesting resentencing pursuant to Penal Code
section 1170.95. The petition requested the appointment of
counsel and alleged defendant pled guilty because he believed he
could have been convicted of murder under a theory of felony
murder or the natural and probable consequences doctrine and
that he could not now be convicted in light of the amendments to
the murder statutes.
The trial court summarily denied the petition without
appointing counsel, finding defendant was ineligible as a matter
2
of law. In the court’s written denial order, the court explained:
“[T]he court takes judicial notice of the trial court records in this
case, including the Probation Report, which details the
underlying facts of the case. The record reveals the defendant
entered a plea to second degree murder. However, the People
never pursued either a felony-murder theory or a natural and
probable consequence theory of murder. Here, the defendant
chased his mother and stepfather down with a knife, then
proceeded to attack them both. His stepfather later died as a
result[.] [T]he theory of liability for murder was that the
defendant was the actual killer, who acted with malice
aforethought. [¶] Because the case involved neither a felony-
murder theory, nor natural and probable consequences theory,
the defendant has failed to make a prima facie case for relief.”
Defendant appealed.
In an unpublished decision, we affirmed the denial of
defendant’s resentencing petition based on the law as it existed
at that time. (People v. Forch (Jan. 10, 2020, B296637) [nonpub.
opn.].)
Defendant filed a petition seeking review in the Supreme
Court. In April 2020, the Supreme Court granted review and
deferred briefing pending its disposition of cases raising similar
issues.
While this case was pending in the Supreme Court, the
Court issued its decision in People v. Lewis (2021) 11 Cal.5th 952(Lewis) and the Legislature passed Senate Bill 775 (2021–2022
Reg. Sess.) which, among other things, amended the language of
Penal Code section 1170.95 (Stats. 2021, ch. 551, § 2).
On April 27, 2022, the Supreme Court transferred this case
to us with directions to vacate our decision and reconsider the
3
matter in light of Lewis. The parties submitted supplemental
briefs. Having vacated our original decision and reconsidered the
issues presented, we again affirm the denial of defendant’s
petition.
The Supreme Court concluded in Lewis “that the statutory
language and legislative intent of [Penal Code] section 1170.95
make clear that petitioners are entitled to the appointment of
counsel upon the filing of a facially sufficient petition (see
§ 1170.95, subds. (b), (c)) and that only after the appointment of
counsel and the opportunity for briefing may the superior court
consider the record of conviction to determine whether ‘the
petitioner makes a prima facie showing that he or she is entitled
to relief.’ (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at
p. 957, italics omitted.)
Lewis also instructs that the failure to appoint counsel
upon the filing of a facially compliant petition is “state law error
only,” subject to harmless error analysis under People v. Watson
(1956) 46 Cal.2d 818. (Lewis, supra, 11 Cal.5th at pp. 957–958,
972–973.) “[A] petitioner ‘whose petition is denied before an
order to show cause issues has the burden of showing “it is
reasonably probable that if [he or she] had been afforded
assistance of counsel his [or her] petition would not have been
summarily denied without an evidentiary hearing.” ’ ” (Id. at
p. 974.)
Our task is to determine whether the trial court’s summary
denial without appointing counsel was harmless. We conclude
that it was.
The record of conviction demonstrates that defendant was
charged and convicted as the actual killer. There is nothing in
the record indicating any other individuals were involved in the
4
attack on defendant’s mother and stepfather, or that the theory of
the prosecution was felony murder or the natural and probable
consequences doctrine. Where the record of conviction,
“ ‘including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified
in making a credibility determination adverse to the
petitioner.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) The trial
court was justified in denying the petition as a matter of law.
Defendant did not present any basis for finding that if he had
been afforded counsel, there was a reasonable probability his
petition would not have been summarily denied.
DISPOSITION
The order denying the petition for resentencing is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
WILEY, J.
5