People v. Lallis CA2/2

Filed 1/26/21 P. v. Lallis 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B300926
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA006473)
v.
RICHARD CHARLES LALLIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Cynthia L. Ulfig, Judge. Affirmed.
Lori A. Quick, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Christopher G. Sanchez,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In 1991, Richard C. Lallis (appellant) pleaded guilty to
second degree murder after admitting to the police that he
strangled a woman to death. Almost three decades later, he filed
a petition pursuant to Penal Code section 1170.951—which was
added by Senate Bill No. 1437 (2017-2018 Reg. Sess.) and
effective January 1, 2019—seeking to vacate his conviction and
be resentenced on the grounds, inter alia, that he was not the
actual killer. The trial court denied the petition because the
record of conviction and court file established that he was the
actual killer and, therefore, he was ineligible for relief. On
appeal, he contends: (1) the trial court erred by failing to appoint
counsel pursuant to section 1170.95, subdivision (c) before
making a prima facie eligibility finding; and (2) the trial court
violated his federal and state due process rights.
We find no error and affirm.
FACTS
The Crime and Plea
When police entered an apartment to investigate a report of
a death, they found appellant lying on the floor and the body of a
26-year-old woman inside a closet. Appellant admitted that he
had strangled her.
The Los Angeles District Attorney’s Office charged
appellant with first degree murder. (§ 187, subd. (a).) He
pleaded guilty to second degree murder and was sentenced to 15
years to life in prison.
The Petition for Resentencing; Denial of the Petition
Appellant filed a section 1170.95 petition for resentencing
using a nongovernmental form. He checked the boxes stating:
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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(1) he pleaded guilty or no contest to first or second degree
murder in lieu of going to trial because he believed he could have
been convicted of first or second degree murder at trial pursuant
to the felony murder rule or the natural and probable
consequences doctrine; and (2) he could not now be convicted of
first or second degree murder because of the amendments to
sections 188 and 189 by Senate Bill No. 1437. He requested that
the trial court appoint counsel.
The trial court reviewed the record of conviction as well as
the court file. It found that appellant was ineligible for
resentencing because he was the actual killer and summarily
denied the petition. In addition, it denied the request for
appointment of counsel.
This appeal followed.
DISCUSSION
I. Senate Bill No. 1437 and Section 1170.95.
Senate Bill No. 1437 amended “‘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.’ [Citation.]
‘Senate Bill No. 1437 achieve[d] 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.”’ [Citation.]” (People v. Tarkington
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(2020) 49 Cal. App. 5th 892, 896 (Tarkington), review granted
Aug. 12, 2020, S263219.)
Section 1170.95 was added by Senate Bill No. 1437
(Tarkington, supra, 49 Cal.App.5th at pp. 896–897) and provides:
“‘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).)” The petition must include the petitioner’s declaration
showing eligibility, the case number, the year of conviction, and
any request for counsel. (§ 1170.95, subd. (b)(1); Tarkington,
supra, at pp. 896–897.)
Subdivision (c) of section 1170.95 provides: “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
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petitioner makes a prima facie showing that he or she is entitled
to relief, the court shall issue an order to show cause.”
II. Current Case Law.
Court of Appeal decisions interpreting Senate Bill No. 1437
have held that a trial court can consider the record of conviction
and court file when conducting a multi-step review process to
determine prima facie eligibility for section 1170.95 relief, and
that counsel need not be appointed if the record of conviction and
court file defeat eligibility. (See People v. Lewis (2020) 43
Cal. App. 5th 1128 (Lewis), review granted Mar. 18, 2020,
S260598; People v. Cornelius (2020) 44 Cal. App. 5th 54, review
granted Mar. 18, 2020, S260410; People v. Verdugo (2020) 44
Cal. App. 5th 320, review granted Mar. 18, 2020, S260493;
Tarkington, supra, 49 Cal. App. 5th 892; People v. Edwards (2020)
48 Cal. App. 5th 666, review granted July 8, 2020, S262481.)
Review is pending in each of these cases. Until our
Supreme Court provides further guidance, we adopt the
reasoning of these cases as our own.
The current state of the law establishes the following
procedure. Initially, the trial court determines whether any of
the information required by section 1170.95, subdivision (b)(1) is
missing. If so, “the court may deny the petition without prejudice
to the filing of another petition containing the requisite
information. [Citations.]” (Tarkington, supra, 49 Cal.App.5th at
p. 897.) The next step is a preliminary review of statutory
eligibility for resentencing. At this phase, the trial 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
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based on a charging document that permitted the prosecution to
proceed under the natural and probable consequences doctrine or
a felony-murder theory. [Citation.] If not, the court can dismiss
any petition filed by an ineligible individual. [Citation.] ‘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.’ [Citation.]” (Id. at
p. 898.) If the petitioner’s ineligibility 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
[trial] 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.’
[Citation.]” (Ibid.) If the requisite showing is made, the trial
court must issue an order to show cause and then hold a hearing
to determine whether to vacate the murder conviction, recall the
sentence, and resentence the petitioner on any remaining counts,
provided that the new sentence is not greater than the initial
sentence. “At that hearing, the prosecution has the burden to
prove beyond a reasonable doubt that the petitioner is ineligible
for resentencing.” (Ibid.)
III. Appellant was not Entitled to Appointment of
Counsel.
Lewis observed, “‘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 file would show as a matter of law that the
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petitioner is not eligible for relief.’” (Lewis, supra, 43 Cal. App. 5th
1138.) This observation is applicable here because appellant
admitted he was the actual killer. As a matter of law, he was
ineligible for relief under section 1170.95. (Tarkington, supra, 49
Cal.App.5th at p. 896.) Appointing counsel in the trial court
would serve no legitimate purpose; rather, it would waste limited
judicial resources.
IV. The Trial Court did not Violate Appellant’s Rights to
Due Process.
Appellant posits that the denial of counsel arbitrarily
deprived him of a state-created liberty interest in being
resentenced, and that this deprivation violated his federal right
to due process. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [a
state cannot arbitrarily deprive a defendant of a state-created
liberty interest].) This argument fails. Because he was not
eligible for resentencing, appellant was not arbitrarily deprived
of resentencing. (See Tarkington, supra, 49 Cal.App.5th at p. 908
[appellant had no liberty interest in appointment of counsel
because he was categorially ineligible for relief under section
1170.95].)
Alternatively, appellant argues that under the due process
clause of section 7, article I of the California Constitution, he had
a right to counsel after he checked the appropriate boxes in his
section 1170.95 petition. He concedes that there is no case on
point. His theory is that due process requires a meaningful
opportunity to be heard, and that he did not receive that
opportunity because he did not have an attorney. But he filed his
petition, so he had as meaningful an opportunity as possible to be
heard during the initial prima facie review. Further, case law
explains that when a defendant seeks postconviction relief, a
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state can condition appointment of counsel on a showing that the
defendant has a prima facie case. (In re Barnett (2003) 31
Cal. 4th 466, 475 [habeas corpus]; People v. Shipman (1965) 62
Cal. 2d 226, 232–233 [coram nobis].) This rule defeats invidious
discrimination between rich defendants and poor defendants
while allowing the state to avoid the waste of resources that
would occur if counsel had to be appointed in meritless cases.
(Ibid.) We conclude that the state Constitution allows the denial
of counsel when the record of conviction and/or the court file
irrefutably establishes that a defendant is ineligible for section
1170.95 relief.
DISPOSITION
The order denying appellant’s section 1170.95 petition for
resentencing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
_______________________, J.
HOFFSTADT
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