People v. King CA2/2

Filed 11/19/20 P. v. King 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B302319
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A350469)
v.
ALFRED KING,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kerry R. Bensinger, Judge. Affirmed.
Lenore De Vita, 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, Idan Ivri and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Alfred King (defendant) appeals the trial court’s summary
denial of his petition for resentencing under Penal Code section
1170.95.1 We conclude there was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
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I. Facts
A. The underlying crime
On April 25, 1979, defendant demanded $15 from Barry
Scoggins (Scoggins) owed to him as a result of a prior sale of PCP.
Scoggins refused, and defendant shot and killed him.
B. Prosecution, conviction and appeal
The People charged defendant with Scoggins’s murder
(§ 187, subd. (a)), and further alleged that he personally used a
firearm in committing the murder (§ 12022.5). At trial,
defendant admitted the shooting but claimed he was acting in
self-defense as he believed Scoggins was about to attack him with
a knife. A jury found defendant guilty of second degree murder
(§ 187) and found true the allegation that he used a firearm in
committing the murder. The trial court sentenced defendant to
prison for 17 years to life. Defendant appealed his conviction and
we affirmed in an unpublished opinion.
II. Procedural Background
On January 14, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. King (June 4,
1981, 2D Crim. No. 36980) [nonpub. opn.].)
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charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that his murder conviction would be invalid under
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” He also requested the appointment of counsel.
After appointing counsel for defendant and entertaining
further briefing, the trial court summarily denied the petition on
October 8, 2019 on the ground that defendant was “the actual
killer” and hence “ineligible for relief” under section 1170.95 “as a
matter of law.”
Defendant timely filed this appeal.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition. Because resolution of
defendant’s arguments turns on questions of statutory
construction and the application of law to undisputed facts, our
review is de novo. (People v. Blackburn (2015) 61 Cal. 4th 1113,
1123; Martinez v. Brownco Construction Co. (2013) 56 Cal. 4th
1014, 1018.)
A person filing a petition under section 1170.95 is entitled
to the appointment of counsel, the opportunity for further
briefing and a hearing if, in his petition, he “makes a prima facie
showing that he . . . is entitled to relief” under that section.
(§ 1170.95, subds. (c) & (d); People v. Lewis (2020) 43 Cal. App. 5th
1128, 1139-1140, review granted Mar. 18, 2020, S260598 (Lewis);
People v. Verdugo (2020) 44 Cal. App. 5th 320, 330, review granted
Mar. 18, 2020, S260493 (Verdugo).) A person is entitled to relief
under section 1170.95 if, as relevant here, (1) “[a] complaint,
information, or indictment was filed against [him] that allowed
the prosecution to proceed under a theory of felony murder or
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murder under the natural and probable consequences doctrine,”
(2) he “was convicted of . . . second degree murder following a
trial,” and (3) he “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 person may be
convicted of murder, even after the 2019 changes to sections 188
and 189, if he “was the actual killer.” (§ 189, subd. (e)(1).) A
“‘prima facie showing is one that is sufficient to support the
position of the party in question.’” (Lewis, at p. 1137, quoting
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 851.)
Where a defendant in his petition alleges each element
necessary to make out a prima facie case for relief under section
1170.95, a trial court evaluating whether a defendant has made a
prima facie showing in a section 1170.95 petition is not required
to accept those allegations at face value and may also examine
the record of conviction. (Lewis, supra, 43 Cal.App.5th at p. 1138;
Verdugo, supra, 44 Cal.App.5th at pp. 329-330; People v.
Tarkington (2020) 49 Cal. App. 5th 892, 899-900, 908-909, review
granted Aug. 12, 2020, S263219 (Tarkington); People v. Drayton
(2020) 47 Cal. App. 5th 965, 968 (Drayton); People v. Edwards
(2020) 48 Cal. App. 5th 666, 673-674, review granted July 8, 2020,
S262481 (Edwards); People v. Torres (2020) 46 Cal. App. 5th 1168,
1178, review granted June 24, 2020, S262011 (Torres).) However,
the contents of the record of conviction defeat a defendant’s prima
facie showing only when the record “show[s] as a matter of law
that the petitioner is not eligible for relief.” (Lewis, at p. 1138,
italics added; Verdugo, at p. 333; Torres, at p. 1177; Drayton, at p.
968; see also People v. Cornelius (2020) 44 Cal. App. 5th 54, 58,
review granted Mar. 18, 2020, S260410 (Cornelius) [record must
show defendant is “indisputably ineligible for relief”].)
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Here, the trial court correctly concluded that defendant did
not make out a prima facie case for relief because the record of
conviction establishes, as a matter of law, that he is not eligible
for relief. That is because the jury found defendant guilty of
second degree murder, and further found true that defendant
personally used a firearm in committing that murder. The jury’s
findings of fact necessarily label defendant as the “actual killer”
and hence ineligible for relief under section 1170.95. (E.g.,
Cornelius, supra, 44 Cal.App.5th at p. 58 [so holding];
Tarkington, supra, 49 Cal.App.5th at pp. 899, 910 [same].)
Defendant resists this conclusion with two arguments.
First, he argues that the trial court erred in not accepting
his allegation that he “could not now be convicted of 1st or 2nd
degree murder because of changes made to Penal Code §§ 188
3
and 189, effective January 1, 2019,” even though the jury at his
trial found that he was the actual killer (and hence could still be
convicted of murder under the as-amended sections 188 and 189)
because section 1170.95’s plain language prohibits trial courts
from summarily dismissing petitions even if prior jury findings
foreclose relief under section 1170.95 as a matter of law. In the
same vein, he adds that section 1170.95’s status as a “special
proceeding” requires strict adherence to the procedures set forth
in that statute. In so arguing, defendant is effectively asserting
that Lewis, Verdugo, Cornelius, Drayton, Edwards, Torres and
Tarkington are all “incorrect[].” These decisions have rejected
every argument defendant now advances. Although our Supreme
3 Curiously, defendant did not check the box on his petition
indicating that he “was not the actual killer,” even though the
form petition clearly indicates that he is not entitled to relief
unless he could check that box.
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Court has granted review in Lewis, Verdugo, Cornelius, Edwards,
Torres and Tarkington, we continue to find them persuasive
unless and until the Supreme Court rules otherwise.
Second, defendant more narrowly contends that, even if a
trial court may consider some parts of the record of conviction in
evaluating eligibility for relief under section 1170.95, it may not
consider the facts set forth in a prior appellate decision (which, he
says, set forth the facts in the light most favorable to the People).
We need not confront the totality of this argument because the
summary denial of defendant’s section 1170.95 petition in this
case rests not on the facts regarding the offense that are recited in
the prior appellate decision, but rather on the facts setting forth
the jury’s findings recited in that decision—namely, the fact that
the jury found defendant guilty of second degree murder and
found true that defendant had personally “used a deadly weapon
in committing the offense.” Those latter facts are a proper
subject of judicial notice as an “accurate[]” “reflect[ion of] what is
in the trial record” and are properly admitted for “the nonhearsay
purpose of determining the basis of the conviction.” (People v.
Woodell (1998) 17 Cal. 4th 448, 456-457, 459-461; Lockley v. Law
Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal. App. 4th 875, 885 [“an appellate opinion can be admitted to
prove . . . that the court made orders, factual findings, judgments
and conclusions of law”]; People v. Franklin (2016) 63 Cal. 4th
261, 280 [same]; Kilroy v. State of California (2004) 119
Cal. App. 4th 140, 147 [“findings of fact” may be judicially noticed];
Sosinsky v. Grant (1992) 6 Cal. App. 4th 1548, 1565 [“it may be
proper to take judicial notice that [a trial judge] did in fact make
[a] particular finding” of fact “after hearing a factual dispute”],
italics omitted.)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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