People v. Timothy Russell Law CA2/8

Filed 10/6/22 P. v. Timothy Russell Law CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B319301
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA044324
v.
TIMOTHY RUSSELL LAW,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa Mangay Chung, Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________
Timothy Russell Law appeals the trial court’s denial of his
resentencing petition. We affirm. Statutory citations are to the
Penal Code.
We draw the facts from Law’s direct appeal. (See People v.
Law (Oct. 12, 2011, B224654) [nonpub. opn.].) In 2007, Law
fatally shot his roommate. He maintained the shooting was
accidental. A jury convicted Law of second degree murder (§ 187)
and found firearm allegations true (§ 12022.53, subds. (b) & (c)).
The court imposed a sentence of 35 years to life, composed of 15
years to life for the murder and a consecutive 20 years for a
firearm enhancement.
In January 2022, Law filed a petition for resentencing
under former section 1170.95 (now § 1172.6) alleging he had been
convicted under the felony-murder rule or natural and probable
consequences doctrine and requesting appointment of counsel.
(Effective June 30, 2022, § 1170.95 was renumbered § 1172.6
with no change in text (Stats 2022, ch. 58, § 10).) The trial court
found the jury had not convicted Law under the felony-murder
rule or the natural and probable consequences doctrine. It held
Law failed to state a prima facie case for relief and summarily
denied his petition without appointing counsel.
Law filed a notice of appeal on March 24, 2022.
Conforming to People v. Wende (1979) 25 Cal.3d 436, Law’s
counsel filed an opening brief containing a statement of facts but
raising no issues. Counsel asked this court to review the record
independently and to determine whether any arguable issues
exist on appeal. Counsel also advised Law he had 30 days to file
a supplemental brief. Law did not file a response.
We have examined the entire record of the proceedings and
have found the trial court did not appoint counsel for Law. Law
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filed a facially sufficient petition and requested counsel. Section
1172.6, subdivision (b)(3) required the court to appoint counsel at
this stage.
We review a denial of the right to counsel during the
petition process for prejudice under People v. Watson (1956) 46
Cal.2d 818, 836. (People v. Lewis (2021) 11 Cal.5th 952, 973–
974.) To establish prejudice, Law must demonstrate that with
counsel, it was reasonably probable the court would not have
summarily denied his petition without an evidentiary hearing.
(See id. at p. 974.)
Even with counsel, Law could not make a prima facie case
of eligibility for resentencing under section 1172.6. Law admitted
to shooting the victim himself, albeit accidentally. The
prosecution did not proceed under a theory of felony murder,
murder under the natural and probable consequences doctrine, or
other theory of imputed malice based on participation in a crime.
(See § 1172.6, subd. (a).) Because Law is not eligible for relief
under this statute as a matter of law, the trial court’s error was
harmless.
DISPOSITION
We affirm the order.
WILEY, J.
We concur:
STRATTON, P. J. GRIMES, J.
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