Opinion

People v. Tarkington

Court: California Court of Appeal
Filed: Jun 2, 2020
Status: Published
Cited by: 0 cases
Authority: More cited than 11.8%

The opinion

Filed 6/2/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B296331

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. BA134487)

ANTHONY LYLE TARKINGTON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los

Angeles County, Robert J. Perry, Judge. Affirmed.

Heather J. Manolakas, under appointment by the Court of

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and

Susan Sullivan Pithey, Assistant Attorneys General, Paul M.

Roadarmel Jr., Stacy S. Schwartz, Idan Ivri, and Amanda V.

Lopez, Deputy Attorneys General, for Plaintiff and Respondent.

Jackie Lacey, Los Angeles County District Attorney, Phyllis

C. Asayama and Matthew Brown, Deputy District Attorneys;

Ricardo D. Garcia, Public Defender of Los Angeles County, Albert

J. Menaster, Deputy Public Defender; Erika C. Anzoategui,

Alternate Public Defender of Los Angeles County, Michael

Goodman, Deputy Alternate Public Defender; The Justice

Collaborative, Kate L. Chatfield, Senior Advisor for Legislation

and Policy, as Amici Curiae.

_________________________

In 1997, defendant and appellant Anthony Lyle Tarkington

was convicted by a jury of second degree murder, with a finding

that he personally used a dangerous and deadly weapon, a knife.

After passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.)

(Senate Bill 1437), Tarkington petitioned for resentencing under

Penal Code section 1170.95.1 The trial court summarily denied

the petition because Tarkington was the actual killer.

Tarkington contends that the court’s order must be reversed

because the court improperly denied his petition without

appointing counsel. We disagree and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND2

On June 22, 1996, Tarkington and the victim, Donald

Fitzpatrick, became embroiled in a fistfight as they were waiting

in line for free coffee and donuts in downtown Los Angeles.

Tarkington fatally stabbed Fitzpatrick in the shoulder and the

stomach. Consequently, Tarkington was charged with murder.

All further undesignated statutory references are to the

Penal Code.

We glean the facts from our unpublished opinion in

Tarkington’s direct appeal in case No. B117520, filed August 19,

1998, of which we have taken judicial notice at Tarkington’s

request. (Evid. Code, §§ 452, subd. (d), 459.)

On August 25, 1997, a jury found Tarkington guilty of

second degree murder. (§ 187, subd. (a).) It also found true the

allegation that he personally used a deadly and dangerous

weapon, a knife, in commission of the murder. (§ 12022,

subd. (b).) Pursuant to the Three Strikes law (§ 667, subds. (b)–

(i)), the trial court sentenced Tarkington to 46 years to life in

prison.

On January 28, 2019, after passage of Senate Bill 1437,

Tarkington filed a petition for resentencing under section

1170.95. Using a preprinted form, he checked boxes stating that

a charging document had been filed against him allowing the

prosecution to proceed under a felony murder theory or the

natural and probable consequences doctrine; he was convicted of

first or second degree murder under one of those theories; he

could not now be convicted of murder in light of changes to the

law wrought by Senate Bill 1437; he was not the actual killer, nor

did he aid and abet the actual killer with the intent to kill; and

he was not a major participant in the felony and did not act with

reckless indifference to human life. He also checked a box

stating, “I request that this court appoint counsel for me during

this re-sentencing process.”

On February 13, 2019, the trial court summarily denied the

petition. Tarkington was not present and the court did not

appoint counsel for him. The court’s order stated, “In 1997,

Tarkington was convicted of second degree murder for stabbing a

man to death on June 22, 1996. The victim was waiting [in] line

for free donuts and coffee in the Skid Row area of Los Angeles.

Tarkington was convicted in part when DNA confirmed a spot of

blood on his shoe was the victim’s. [¶] As the actual killer,

Tarkington is not entitled to relief under Penal Code § 1170.95.

[¶] The petition for resentencing is unmeritorious and is denied.”

Tarkington timely appealed.

DISCUSSION

Tarkington contends that the court erred by summarily

denying his petition without appointing counsel for him. He

urges that the failure to appoint counsel violated his statutory

and constitutional rights, amounted to structural error, and

requires reversal. We disagree.

1. Senate Bill 1437

Senate Bill 1437 was enacted to “amend 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.”

(Stats. 2018, ch. 1015, § 1, subd. (f).) “Senate Bill No. 1437

achieves 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.’ (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2,

3.)”3 (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review

granted Mar. 18, 2020, S260410 (Cornelius); People v. Verdugo

Section 189, subdivision (e), does not apply if the victim is a

peace officer under specified circumstances. (§ 1170.95, subd. (f).)

(2020) 44 Cal.App.5th 320, 326, review granted Mar. 18, 2020,

S260493 (Verdugo).)

Senate Bill 1437 also added section 1170.95, which permits

persons convicted of murder under a felony murder or natural

and probable consequences theory to petition in the sentencing

court for vacation of their convictions and resentencing. Section

1170.95 provides in pertinent part: “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).)

Section 1170.95 requires that the petition be filed in the

sentencing court, and must include the petitioner’s declaration

showing eligibility, the case number, the year of conviction, and

any request for counsel. (§ 1170.95, subd. (b); Verdugo, supra,

44 Cal.App.5th at p. 327, rev.gr.) Subdivision (c) of the statute

lists the next steps in the petition process thusly: “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 petitioner makes a prima

facie showing that he or she is entitled to relief, the court shall

issue an order to show cause.”

Verdugo recently clarified the parameters of the statutory

scheme, explaining that a court’s evaluation of a section 1170.95

petition requires a multi-step process: an initial review to

determine the facial sufficiency of the petition; a prebriefing,

“first prima facie review” to preliminarily determine whether the

petitioner is statutorily eligible for relief as a matter of law; and a

second, postbriefing prima facie review to determine whether the

petitioner has made a prima facie case that he or she is entitled

to relief. (Verdugo, supra, 44 Cal.App.5th at pp. 327–330, rev.gr.;

accord, People v. Torres (2020) 46 Cal.App.5th 1168, 1177–1178;

People v. Drayton (2020) 47 Cal.App.5th 965, 975–976 [§ 1170.95

provides for two separate prima facie reviews, with the first

focused on eligibility for relief and the second on entitlement to

relief].)

In its initial review, the court determines whether any of

the information required by section 1170.95, subdivision (b)(1) to

be included in the petition is missing and cannot readily be

ascertained by the court. If so, the court may deny the petition

without prejudice to the filing of another petition containing the

requisite information. (§ 1170.95, subd. (b)(2); Verdugo, supra,

44 Cal.App.5th at pp. 327–328, rev.gr.) “This initial review thus

determines the facial sufficiency of the petition.” (Verdugo, at

p. 328.)

The next step, a prebriefing “first prima facie review,” is a

“preliminary review of statutory eligibility for resentencing,” akin

to the procedure employed in a Proposition 36 or Proposition 47

context.4 (Verdugo, supra, 44 Cal.App.5th at pp. 328–329, rev.gr.;

People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review granted

Mar. 18, 2020, S260598 (Lewis).) The 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 based on a

charging document that permitted the prosecution to proceed

under the natural and probable consequences doctrine or a felony

murder theory. (Verdugo, at pp. 329–330.) If not, the court can

dismiss any petition filed by an ineligible individual. (Id. at

p. 330.) “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.” (Id. at p. 329.)

“Because the court is only evaluating whether there is a

prima facie showing the petitioner falls within the provisions of

the statute, . . . if the petitioner’s ineligibility for resentencing

under section 1170.95 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 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.” (Verdugo, supra, 44 Cal.App.5th at pp. 330,

328, rev.gr.) In this second prima facie evaluation, the court

Proposition 36, the Three Strikes Reform Act of 2012;

Proposition 47, the Safe Neighborhoods and Schools Act.

employs the familiar standard for issuance of an order to show

cause in a habeas corpus proceeding. That is, the court must

take petitioner’s factual allegations as true and make a

preliminary assessment regarding whether he or she would be

entitled to relief if the factual allegations were proved. (Id. at

p. 328; People v. Drayton, supra, 47 Cal.App.5th at p. 980 [when

evaluating whether petitioner has made a prima facie showing of

entitlement to relief, court cannot weigh evidence or make

credibility determinations, but need not credit factual assertions

that are untrue as a matter of law].)

After such an order to show cause issues, absent a waiver

and stipulation by the parties, the trial court must hold a hearing

“to determine whether to vacate the murder conviction and to

recall the sentence and resentence the petitioner on any

remaining counts in the same manner as if the petitioner had not

been previously . . . sentenced, provided that the new sentence, if

any, is not greater than the initial sentence.” (§ 1170.95,

subd. (d)(1).) At that hearing, the prosecution has the burden to

prove beyond a reasonable doubt that the petitioner is ineligible

for resentencing. Both the prosecution and the petitioner may

rely on the record of conviction or may offer new or additional

evidence. (§ 1170.95, subd. (d)(3).)

2. The trial court correctly found Tarkington is ineligible

for section 1170.95 relief

Preliminarily, we observe that the record compels the

conclusion that the trial court correctly found Tarkington is

ineligible, as a matter of law, for relief under section 1170.95.

Tarkington was not prosecuted on a felony murder or natural and

probable consequences theory. Instead, he was the actual killer.

Our opinion in his direct appeal, which described the evidence

presented at trial, demonstrates that the murder involved a

single perpetrator, Tarkington; it was not a situation in which

multiple persons carried out the attack.5 The jury instructions

given in the case did not include any instruction on aiding and

abetting, the natural and probable consequences doctrine, or the

felony murder rule. The verdict form contains the jury’s finding

that Tarkington personally used a deadly and dangerous weapon,

a knife. In short, the record shows that as a matter of law,

Tarkington was the actual killer and was not tried using the

natural and probable consequences doctrine or the felony murder

rule; he was convicted on a theory that survives the changes to

sections 188 and 189. (See People v. Edwards (2020) 48

Cal.App.5th 666, 674 [where petitioner was not charged or

convicted under the felony murder rule or natural and probable

consequences doctrine, summary denial of petition was proper];

Verdugo, supra, 44 Cal.App.5th at p. 333, rev.gr.) Consideration

of the record to determine whether a petitioner has made the first

prima facie showing, i.e., whether he is eligible for relief, is

proper.6 (People v. Torres, supra, 46 Cal.App.5th at p. 1178;

Verdugo, supra, 44 Cal.App.5th at pp. 329–330, rev.gr.; Lewis,

The record includes our opinion resolving Tarkington’s

direct appeal. “A court of appeal opinion, whether or not

published, is part of the appellant’s record of conviction.

[Citations.]” (Verdugo, supra, 44 Cal.App.5th at p. 333, rev.gr.;

Lewis, supra, 43 Cal.App.5th at p. 1136, fn. 7, rev.gr.)

Our Supreme Court is currently considering whether

superior courts may consider the record of conviction in

determining whether a defendant has made a prima facie

showing of eligibility for relief under section 1170.95. (Lewis,

supra, S260598.)

supra, 43 Cal.App.5th at p. 1138, rev.gr.) Under no stretch of

imagination, therefore, could Tarkington be eligible for relief

under section 1170.95.

3. Tarkington was not entitled to appointed counsel at the

first prima facie review stage

Tarkington nonetheless contends that the superior court

was required to appoint counsel for him before denying the

petition, simply because he checked the right boxes on a

preprinted form. Our colleagues in Divisions One, Five, Six, and

Seven have rejected similar arguments. (Lewis, supra, 43

Cal.App.5th at pp. 1139–1140, rev.gr.; People v. Torres, supra,

46 Cal.App.5th at pp. 1173, 1178; Cornelius, supra,

44 Cal.App.5th at p. 58, rev.gr. [rejecting contention that trial

court was statutorily required to appoint counsel once petitioner

alleged he satisfied filing requirements, regardless of whether the

petition’s allegations were accurate]; Verdugo, supra, 44

Cal.App.5th at pp. 332–333, rev.gr.) Our Supreme Court is

currently considering when the right to appointed counsel arises

under section 1170.95, subdivision (c). (Lewis, supra, S260598.)

Pending further guidance from our Supreme Court, we agree

with the aforementioned authorities.

Tarkington maintains that the statutory language is plain

and unambiguous, requiring that counsel “shall” be appointed.

(§ 1170.95, subd. (c).) Thus, he contends, if the petition contains

the required information and averments—even if incorrect—an

attorney must be appointed at the outset.

When construing a statute, we must determine the

Legislature’s intent so as to effectuate the law’s purpose. (People

v. Ruiz (2018) 4 Cal.5th 1100, 1105–1106.) We begin with an

examination of the statute’s words, giving them their usual and

ordinary meaning. (People v. Colbert (2019) 6 Cal.5th 596, 603;

People v. Ruiz, at pp. 1105–1106; In re C.H. (2011) 53 Cal.4th 94,

100.) If not ambiguous, the plain meaning of the statutory

language controls, and we need go no further. (People v. Colbert,

at p. 603; People v. Ruiz, at p. 1106; In re C.H., at p. 100.) We

agree the statutory language requiring appointment of counsel is

mandatory, but the pertinent question is when such appointment

is required. On that point, when viewed in isolation, the

statutory language is ambiguous. However, when viewed in the

context of section 1170.95 as a whole, it is clear that counsel need

not be appointed before the court determines the petitioner is

eligible for relief. (Lewis, supra, 43 Cal.App.5th at pp. 1139–

1140, rev.gr.)

Verdugo explained: “The first sentence of section 1170.95,

subdivision (c), directs the court to review the petition and

determine if the petitioner has made the requisite prima facie

showing. The second sentence provides, if the petitioner has

requested counsel, the court must appoint counsel to represent

him or her. The third sentence requires the prosecutor to file and

serve a response to the petition within 60 days of service of the

petition and permits the petitioner to file a reply to the response.

The structure and grammar of this subdivision indicate the

Legislature intended to create a chronological sequence: first, a

prima facie showing; thereafter, appointment of counsel for

petitioner; then, briefing by the parties. [Citations.]” (Verdugo,

supra, 44 Cal.App.5th at p. 332, rev.gr.) “Nor would it make

sense as a practical matter to appoint counsel earlier in the

process since counsel’s first task is to reply to the prosecutor’s

response to the petition. If . . . the court concludes the petitioner

has failed to make the initial prima facie showing required by

subdivision (c), counsel need not be appointed. Of course, if the

petitioner appeals the superior court’s summary denial of a

resentencing petition, appointed counsel on appeal can argue the

court erred in concluding his or her client was ineligible for relief

as a matter of law.” (Id. pp. 332–333.) As Verdugo noted, the

“first prima facie review” of the petition “must be something more

than simply determining whether the petition is facially

sufficient; otherwise, given subdivision (b)(2), this portion of

subdivision (c) would be surplusage.” (Id. at pp. 328–329.)

Lewis came to the same conclusion. The court observed

that when “the statutory framework is, overall, chronological,

courts will construe the timing of particular acts” to occur in the

order they appear in the text. (Lewis, supra, 43 Cal.App.5th at

pp. 1139–1140, rev.gr.) Section 1170.95 is such a statute: it is

“organized chronologically from its first subdivision to its last.”

(Lewis, at p. 1140.) “Given the overall structure of the statute,

we construe the requirement to appoint counsel as arising in

accordance with the sequence of actions described in section

1170.95 subdivision (c); that is, after the court determines that

the petitioner has made a prima facie showing that petitioner

‘falls within the provisions’ of the statute, and before the

submission of written briefs and the court’s determination

whether petitioner has made ‘a prima facie showing that he or

she is entitled to relief.’ (§ 1170.95, subd. (c).) . . . [T]he trial

court’s duty to appoint counsel does not arise unless and until the

court makes the threshold determination that petitioner ‘falls

within the provisions’ of the statute.” (Id. at p. 1140, fn. omitted;

see Cornelius, supra, 44 Cal.App.5th at p. 58, rev.gr.)

Reading the law as Tarkington suggests would lead to

anomalous results. “ ‘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

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.’ ” (Lewis, supra, 43 Cal.App.5th at p. 1138, rev.gr.,

citing Couzens et al., Sentencing Cal. Crimes (The Rutter Group

2019) ¶ 23:51(H)(1), pp. 23-150 to 23-151.)

Such is the case here. The court summarily denied the

petition at the “first prima facie review” stage, based on its

finding that Tarkington is ineligible as a matter of law. That

finding is correct, as we have discussed. Accordingly, the

appointment of counsel was not statutorily required by section

1170.95. (Verdugo, supra, 44 Cal.App.5th at pp. 332–333, rev.gr.;

Lewis, supra, 43 Cal.App.5th at p. 1140, rev.gr. [“Because the

trial court denied defendant’s petition based upon his failure to

make a prima facie showing that the statute applies to his

murder conviction, defendant was not entitled to the

appointment of counsel”]; Cornelius, supra, 44 Cal.App.5th at

p. 58, rev.gr.)

4. Senate Bill 1437’s legislative history

The dissent opines that examination of successive drafts of

Senate Bill 1437 demonstrates the Legislature always intended

that a petitioner would be represented by appointed counsel

immediately upon filing a complete petition. (Dis. opn., post, at

pp. 12, 14–15.) To the contrary, comparison of the bill’s final and

preliminary versions suggests the opposite.

As we have described, section 1170.95 requires that the

court make two distinct determinations on a resentencing

petition: one regarding eligibility (whether the petitioner “falls

within the provisions of this section”), and the second regarding

entitlement (whether petitioner has made a prima facie showing

he or she is “entitled to relief”). The Legislature’s use of these

different phrases mandates this conclusion. “ ‘Ordinarily, where

the Legislature uses a different word or phrase in one part of a

statute than it does in other sections or in a similar statute

concerning a related subject, it must be presumed that

the Legislature intended a different meaning.’ ” (Rashidi v.

Moser (2014) 60 Cal.4th 718, 725; In re C.H., supra, 53 Cal.4th at

p. 107; People v. White (2016) 3 Cal.App.5th 433, 447.) And, we

must accord significance to every word in a statute and avoid a

construction that renders words surplusage. (Kulshrestha v.

First Union Commercial Corp. (2004) 33 Cal.4th 601, 611 [we

assume each term has meaning and appears for a reason, and

may not excise words from a statute]; People v. Johnson (2002)

28 Cal.4th 240, 246–247; People v. Kareem A. (2020) 46

Cal.App.5th 58, 71.)

The Legislature used this same phrasing in earlier versions

of Senate Bill 1437. Senate Bill 1437 was introduced on

February 16, 2018, and was amended twice before its enactment.

Both as introduced and as first amended, the bill required that

upon receipt of the petition, the trial court would provide notice of

the petition’s filing to defense counsel and the prosecutor.7 Both

versions further mandated that the court request or require a

response from these attorneys as to whether the petitioner was

“entitled to relief” (italics added).8 Both versions also provided

that if the court found there was “sufficient evidence that the

petitioner falls within the provisions of this section,” it should hold

a resentencing hearing. (Sen. Bill No. 1437, as introduced Feb.

16, 2018, § 6, italics added; id., as amended in the Senate, May

25, 2018, § 6.) Thus, defense counsel and the prosecutor were

always intended to brief only the question of the petitioner’s

entitlement to relief; the court was to determine eligibility—

whether the petitioner “falls within the provisions of this

section”—on its own, without briefing on the question from the

parties.

As introduced, the bill required that the court give notice to

“the attorney who represented the petitioner in the superior court

and to the district attorney in the county in which petitioner was

prosecuted.” (Sen. Bill No. 1437, as introduced Feb. 16, 2018,

§ 6.) As amended in the Senate, the bill added that the court

should give notice to “the public defender if the attorney of record

is no longer available.” (Id., as amended May 25, 2018, § 6.) For

ease of reference, we here use the shorthand terms “defense

counsel” and “the prosecutor.”

8 The first version of the bill required that the court request

a response from both parties with no time frame specified. (Sen.

Bill No. 1437, as introduced Feb. 16, 2018, § 6.) The second

version required that each party file a response within 60 days.

(Id., as amended May 25, 2018, § 6.)

The bill was amended to its final form in the Assembly on

August 20, 2018. That amendment did away with the

requirement that the court give notice and require or request a

response from the attorneys as the first step in the process.

Instead, the Legislature put into place the sequential procedure

described in Lewis and Verdugo. (Sen. Bill No. 1437, as amended

Aug. 20, 2018, § 4; Lewis, supra, 43 Cal.App.5th at p. 1140,

rev.gr.; Verdugo, supra, 44 Cal.App.5th at p. 332, rev.gr.) Using

the same language employed in the earlier versions, the August

20 amendment made explicit that two, distinct prima facie

showings were required. (Sen. Bill No. 1437, as amended Aug.

20, 2018, § 4; § 1170.95, subd. (c).)

Thus, the dissent’s position that “[e]very version of [Senate

Bill] 1437 contemplated that petitioners would be represented by

counsel upon filing a sufficient petition” is not accurate. (Dis.

opn., post, at p. 12.) Senate Bill 1437 never contemplated that

counsel would be involved in the inquiry as to whether the

petitioner “falls within the provisions of this section,” i.e.,

eligibility. Counsel was always expected to weigh in only on the

question of entitlement to relief, i.e., the question that the bill’s

final version made clear comes after the court determines

eligibility. In short, all three versions of the bill limited counsel’s

involvement to the entitlement, not the eligibility, inquiry.

Given this, section 1170.95, subdivision (c) is most logically

construed as providing for appointment of counsel only when the

entitlement inquiry arises in the second prima facie review. As

Verdugo explained: “Unlike the May 25, 2018 version of the bill,

which directed the court to initiate the briefing process upon

receipt of the petition without any review at all, even for the

petition’s completeness, this final iteration, which authorizes the

court both to dismiss the petition if it lacks any required

information and to determine if there is a prima facie showing

the petitioner falls within the provisions of the statute before

ordering briefing, indicates the Legislature’s intent that the

superior court perform a substantive gatekeeping function,

screening out clearly ineligible petitioners before devoting

additional resources to the resentencing process.” (Verdugo,

supra, 44 Cal.App.5th at p. 331, rev.gr.) Thus, contrary to the

dissent’s analysis, the legislative history of the bill does not

support the conclusion that counsel must be immediately

appointed.9

Tarkington and the dissent point to two letters appended to

an amicus curiae brief filed by The Justice Collaborative, which

purportedly demonstrate the Legislature’s intent to require

appointment of counsel before a court summarily denies a section

1170.95 petition. (Dis. opn., post, at pp. 16–19.) In the two

documents offered—an August 28, 2018 letter from the Judicial

The dissent also argues that if the Legislature intended the

court to evaluate the petition before appointing counsel, the

briefing deadlines would run from the date of the court’s

eligibility finding, not from the date the petition was filed. (Dis.

opn., post, at p. 15; see § 1170.95, subd. (c) [“[t]he 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].) We see no contradiction. It is

reasonable to infer that the Legislature simply intended to

ensure that the petition is evaluated, from start to finish, in an

expeditious fashion. It is to be expected that the superior court

will promptly rule on eligibility; running the briefing period from

the date of the petition’s filing ensures that this is so, absent good

cause for a longer period.

Council of California to the bill’s author, and a September 13,

2018 letter from the Judicial Council to former Governor Edmund

G. Brown, Jr.—the Judicial Council opined that Senate Bill 1437

should be amended to allow for summary dismissal of petitions

that do not make a prima facie case, and for appointment of

counsel once a prima facie showing is made. Based on these

letters, the dissent makes the mistaken pronouncement that the

Legislature “rejected a request to allow courts to deny petitions

summarily without appointing counsel.” (Dis. opn., post, at

p. 16.)

But the two letters in question do not demonstrate that the

Legislature rejected a proposed change to the bill. For one thing,

the letters are not cognizable legislative history, because there is

no indication they were considered by the Legislature as a whole.

As “a general rule[,] in order to be cognizable, legislative history

must shed light on the collegial view of the Legislature as a

whole. [Citation.] . . . [O]ur Supreme Court has said, ‘We have

frequently stated . . . that the statements of an individual

legislator, including the author of a bill, are generally not

considered in construing a statute, as the court’s task is to

ascertain the intent of the Legislature as a whole in adopting a

piece of legislation. [Citations.]’ [Citation.]” (Kaufman & Broad

Communities, Inc. v. Performance Plastering, Inc. (2005) 133

Cal.App.4th 26, 30 (Kaufman), quoting Quintano v. Mercury

Casualty Co. (1995) 11 Cal.4th 1049, 1062.) Therefore, unless

there is a showing that particular materials were part of the

debate on the legislation and were communicated to the

Legislature as a whole before passage of the bill, they are not

cognizable legislative history. (See, e.g., People v. Garcia (2002)

28 Cal.4th 1166, 1175–1176, fn. 5 [“ ‘In construing a statute we

do not consider the objective of an authoring legislator when

there is no reliable indication that the Legislature as a whole was

aware of that objective and believed the language of the proposal

would accomplish it.’ ”]; People v. Johnson, supra, 28 Cal.4th at

p. 247 [memorandum prepared by Office of the Attorney

General—the source of legislation—was irrelevant absent

showing awareness by Legislature as a whole]; Quelimane Co. v.

Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45–46, fn. 9

[“the views of individual legislators as to the meaning of a statute

rarely, if ever, are relevant”]; Cequel III Communications I, LLC

v. Local Agency Formation Com. of Nevada County (2007) 149

Cal.App.4th 310, 326, fn. 3 [“Letters to individual legislators,

including the bill’s author, are not matters constituting

cognizable legislative history if they were not communicated to

the Legislature as a whole.”]; Kaufman, at p. 38 [letters to

particular legislators, including bill’s author; letters to Governor

urging signing of bill; subjective intent reflected by statements of

interested parties and individual legislators, including bill’s

author, not communicated to Legislature as a whole; and “State

Bar’s view of the meaning of proposed legislation,” do not

constitute legislative history].)10

Other authorities are in accord. (See, e.g., People v. Wade

(2016) 63 Cal.4th 137, 143; Sierra Club v. Superior Court (2013)

57 Cal.4th 157, 173 [memorandum from city that sponsored

legislation, indicating its intent to exclude certain data bases

from definition of public record, did not reliably indicate

Legislature as a whole was aware of that objective]; Cummins,

Inc. v. Superior Court (2005) 36 Cal.4th 478, 492, fn. 11; In re

Donovan L. (2016) 244 Cal.App.4th 1075, 1088, fn. 11 [“As a

general rule, ‘legislative history must shed light on the collegial

view of the Legislature as a whole’ ”]; Raef v. Appellate Division of

Here, we do not have even a statement of the author’s

intent; instead, we have a letter opining that the law should be

amended, and the bill’s author’s inaction in response. If the

views of particular legislators are not cognizable legislative

history, certainly letters written to them in an attempt to

influence their views must be disregarded. (People v. Patterson

(1999) 72 Cal.App.4th 438, 443–444.) There is no showing that

the concerns expressed in the Judicial Council’s letter were ever

communicated to, contemplated by, or debated by the Legislature

as a whole. There is certainly no showing that the Legislature

ever considered and voted against amending the bill as

suggested.11 Thus, there is no basis to conclude that the

Legislature expressly declined to amend the bill.

The letter to the Governor was sent after Senate Bill 1437

was enacted by the Legislature, and consequently cannot shed

Superior Court (2015) 240 Cal.App.4th 1112, 1131 [views of

interested persons are not cognizable evidence of the

Legislature’s intent]; People v. Johnson (2015) 234 Cal.App.4th

1432, 1444, fn. 6; PaintCare v. Mortensen (2015) 233 Cal.App.4th

1292, 1309–1310, fn. 11; People v. Carroll (2014) 222 Cal.App.4th

1406, 1409, fn. 2; Slocum v. State Bd. of Equalization (2005) 134

Cal.App.4th 969, 980 [letter and memorandum from county

administrator to bill’s author not cognizable legislative history;

at most they reflected individual views or understandings of the

author and county officials].)

Indeed, even if the letter were cognizable, we could only

speculate about the reason for the author’s inaction. It is entirely

possible that the author believed amendment was unnecessary

because the statute as written already provided for summary

dismissal and appointment of counsel after the first prima facie

review, as multiple appellate courts have since held.

any light on the Legislature’s intent.12 (See People v. Fuhrman

(1997) 16 Cal.4th 930, 939, fn. 8 [memorandum analyzing

assembly bill, prepared by Judicial Council subcommittee after

Governor signed bill into law, was not “within the class of

documents that traditionally has been considered in determining

legislative intent”]; Kahan v. City of Richmond (2019) 35

Cal.App.5th 721, 734; California Highway Patrol v. Superior

Court (2006) 135 Cal.App.4th 488, 501; Witt Home Ranch, Inc. v.

County of Sonoma (2008) 165 Cal.App.4th 543, 558, fn. 8

[opinions of Legislative Analyst and Attorney General prepared

after passage of bill could not be considered because they

provided no evidence of legislative intent].)13

The dissent ignores these well-settled principles by arguing

that the letter to the Governor, at least, should be treated as an

enrolled bill report. (Dis. opn., post, at pp. 20–21.) (See Elsner v.

Uveges (2004) 34 Cal.4th 915, 934, fn. 19 [“we have routinely

found enrolled bill reports, prepared by a responsible agency

contemporaneous with passage and before signing, instructive on

matters of legislative intent”]; People v. Ruiz, supra, 4 Cal.5th at

p. 1111, fn. 3.) But the letter to the Governor is simply not an

Because they are not proper subjects of judicial notice, we

decline to judicially notice the documents attached as exhibits to

the amicus curiae brief filed by The Justice Collaborative, i.e., the

two letters and a guidebook prepared to assist defendants and

their families in understanding Senate Bill 1437.

For the same reasons, and because opinions of interested

parties not communicated to the Legislature as a whole do not

cast light on the Legislature’s intent, the dissent’s reliance on a

letter from the San Diego District Attorney to the Governor after

Senate Bill 1437’s passage is unavailing.

enrolled bill report or its equivalent. (See Chino MHC, LP v. City

of Chino (2012) 210 Cal.App.4th 1049, 1067 [an enrolled bill

report “ ‘ “is prepared by a department or agency in the executive

branch that would be affected by the legislation” ’ ” and is

forwarded to the Governor before he or she decides whether to

sign the enrolled bill]; Kaufman, supra, 133 Cal.App.4th at p. 40.)

The letter in question was not a “report” to the Governor by an

executive agency, nor is it analogous to such.14

Other cases cited by the dissent are no more help. The

dissent avers that Pacific Bell v. Public Utilities Com. (2000)

79 Cal.App.4th 269, “cit[ed] correspondence from the Judicial

Council to the bill’s author as evidence of legislative intent in

successive drafts of legislation.” (Dis. opn., post, at p. 21.) It did

not. Pacific Bell noted that the Judicial Council dropped its

opposition to a bill after the bill was amended, as reflected in a

letter from a Judicial Council legislative policy analyst to the

chairman of the Assembly Appropriations committee, not the

bill’s author. (Pacific Bell, at p. 279.) And the Judicial Council’s

change in position was conveyed in a report by the Assembly

Committee on the Judiciary in preparation for a hearing. (Id. at

pp. 279–280.) Thus, unlike in the present case, the Judicial

Council’s views were communicated to various legislative

committees. (See Kaufman, supra, 133 Cal.App.4th at p. 39

[committee reports are routinely available to the Legislature as a

whole].) Contrary to the dissent’s characterization, we do not

suggest that letters to committee chairpersons are necessarily

cognizable legislative history. (Dis. opn., post, at p. 21, fn. 10.)

The determinative fact is whether the material was shared with

and considered by the Legislature as a whole. Ghanooni v. Super

Shuttle (1992) 2 Cal.App.4th 380, also cited by the dissent (Dis.

opn., post, at p. 21), observed that language in a particular

statute could be traced to a proposed amendment by the Judicial

Council that was “circulated” to interested parties and redrafted

after the council received comments; ultimately, both versions of

The dissent also implies that because the Judicial Council

is the judicial branch’s policymaking body, its views are

significant. (Dis. opn., post, at p. 20.) But this misses the point.

Whether the Judicial Council’s—or any governmental body’s—

views assist with an interpretation of legislative intent turns not

on the importance or prestige of that body, but on whether

circumstances show its objections or requests were considered by

the Legislature, as opposed to a single legislator. It is one thing to

say the Legislature rejected a proposed amendment after

considering it; it is quite another to assume that the Legislature

as a whole rejected a proposal that, as far as we can tell, was

never shared with anyone other than the author.

5. Tarkington’s other arguments lack merit

Tarkington argues the statute should be read to require

counsel at the outset for several reasons. He asserts that Senate

Bill 1437 gave him a liberty interest, presumably in having

counsel appointed, of which he could not be deprived. But

Tarkington is categorically ineligible for relief under section

1170.95, as we have explained. Therefore, it follows ipso facto

that he could have had no liberty interest in the appointment of

counsel, and could have had no expectation that counsel would be

appointed for him.

the council’s proposals were reflected in the law passed.

(Ghanooni, at pp. 384–385.) Thus, in that case the Judicial

Council’s input was not limited to a letter to the bill’s author

alone, as are the materials relied upon by the dissent. In Kelly v.

Methodist Hospital of So. California (2000) 22 Cal.4th 1108,

1116, the court relied on successive versions of a bill as an

indication of legislative intent, not on a letter sent solely to a

bill’s author.

Next, Tarkington avers that the appointment of counsel at

the outset is necessary because implementation of section

1170.95 is “complicated” and, without counsel to advocate for a

petitioner, petitions are likely to be erroneously denied. He

worries that the “record of conviction” is not clearly defined by

the statute and may be voluminous; and in older cases, where the

record may be unavailable, the court may not have “the time and

resources” to uncover adequate information. Without counsel, he

maintains, there is “no guarantee” the trial court will review

sufficient information to give it a “full understanding” of the case.

These concerns are unfounded. Verdugo explained what

information a court should examine in making the threshold

eligibility determination: “Although subdivision (c) does not

define the process by which the court is to make this threshold

determination, subdivisions (a) and (b) of section 1170.95 provide

a clear indication of the Legislature’s intent. . . . [S]ubdivision

(b)(2) directs the court in considering the facial sufficiency of the

petition to access readily ascertainable information. The same

material that may be evaluated under subdivision (b)(2)—that is,

documents in the court file or otherwise part of the record of

conviction that are readily ascertainable—should similarly be

available to the court in connection with the first prima facie

determination required by subdivision (c). In particular, because

a petitioner is not eligible for relief under section 1170.95 unless

he or she was convicted of first or second degree murder based on

a charging document that permitted the prosecution to proceed

under a theory of felony murder or murder under the natural and

probable consequences doctrine [citation], the court must at least

examine 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. Based on a

threshold review of these documents, the court can dismiss any

petition filed by an individual who was not actually convicted of

first or second degree murder. The record of conviction might

also include other information that establishes the petitioner is

ineligible for relief as a matter of law because he or she was

convicted on a ground that remains valid notwithstanding Senate

Bill 1437’s amendments to sections 188 and 189 [citation]—for

example, a petitioner who admitted being the actual killer as part

of a guilty plea or who was found to have personally and

intentionally discharged a firearm causing great bodily injury or

death in a single victim homicide within the meaning of section

12022.53, subdivision (d). [Citation.]” (Verdugo, supra, 44

Cal.App.5th at pp. 329–330, rev.gr.; People v. Edwards, supra,

48 Cal.App.5th at pp. 673–674; People v. Torres, supra, 46

Cal.App.5th at p. 1178; Lewis, supra, 43 Cal.App.5th at pp. 1137–

1138, rev.gr. [as with analogous determinations of eligibility

under Propositions 36 and 47, court considering a section 1170.95

petition is permitted to examine the record of conviction when

evaluating a petitioner’s prima facie showing of eligibility].)

Contrary to Tarkington’s arguments, the preliminary

determination that a petitioner is ineligible will generally be

straightforward and uncomplicated. In most or at least many

cases, the information necessary to make the first prima facie

eligibility determination will be readily ascertainable based on

clear and indisputable portions of the record. A court can

determine whether the defendant was convicted of a qualifying

crime, was the actual killer, or was tried under the felony murder

or natural and probable consequences doctrines, by a simple

examination of the record, including, inter alia, the charging

document, the verdict (or plea) forms, the jury instructions, and

any appellate opinion in the case. (See Verdugo, supra, 44

Cal.App.5th at p. 333, rev.gr. [an appellate opinion is part of the

record of conviction; trial court may properly consider it when

determining whether petitioner made a prima facie showing of

eligibility under section 1170.95]; accord, People v. Edwards,

supra, 48 Cal.App.5th at pp. 674–675.)

At this stage, a court must make all factual inferences in

the petitioner’s favor (Verdugo, supra, 44 Cal.App.5th at p. 329,

rev.gr.); thus, there is no danger the court will find ineligibility

based upon an unclear or missing record. Unless the record

conclusively shows that the defendant is ineligible as a matter of

law, the court should move to the next step and appoint counsel.

As the district attorney states in her amicus curiae brief: “the

prima facie showing is very low. The court reviews only whether

the defendant could have been convicted under a theory of

murder that is now invalid after [Senate Bill] 1437. This would

normally require looking only at the jury instructions or the

appellate opinion to see if the defendant was convicted as an

accomplice, as opposed to being the direct perpetrator. The court

should only decline to find a prima facie case where the defendant

is ineligible as a matter of law and there is no contested issue of

law or fact for the court’s resolution.” (Italics added.) If there is

any issue, the court should proceed to the second prima facie

review. At that point, the appointment of counsel, where

requested, is mandatory.

Tarkington next expresses concern that if requested

counsel is not appointed immediately upon the filing of a petition,

the result will be a plethora of erroneous ineligibility findings

and resultant appeals. In its amicus brief, the alternate public

defender states that more than 100 summary denials of section

1170.95 petitions have occurred and are being appealed.

Tarkington and the alternate public defender fear that in such

cases, “an adequate record” will not have been developed below.

But the mere existence of summary denials is not evidence of

error; it is, of course, entirely possible that the trial courts in

these cases correctly found the petitioners ineligible. As the

instant matter demonstrates, it has not been the case that only

defendants convicted of qualifying crimes under qualifying

theories have petitioned. (See, e.g., People v. Cervantes (2020)

44 Cal.App.5th 884, 886 [petitioner who was convicted of

voluntary manslaughter was ineligible for relief under section

1170.95]; accord, People v. Flores (2020) 44 Cal.App.5th 985, 989;

People v. Turner (2020) 45 Cal.App.5th 428, 438; People v.

Sanchez (May 7, 2020, E072647) __ Cal.App.5th __ [2020

Cal.App.Lexis 389].) And, where ineligibility is ascertainable

based on the record of conviction, no additional record need be

“developed”; to do so would be a waste of resources. Here, for

example, no further record development could change the fact

that Tarkington was the only perpetrator, was the actual killer,

and was not tried under the natural and probable consequences

or felony murder doctrines.

Nor do we detect any possibility that counsel’s absence

could prejudice a petitioner in a significant way, or that counsel’s

presence at this stage is necessary to preserve his or her rights.

The instant case provides an apt illustration of why this is so.

The court’s ruling turned on one simple, easily ascertainable, and

undisputed fact: Tarkington was the actual killer. It is unclear

how appointed counsel could have assisted Tarkington in any

meaningful way. Tarkington is ineligible as a matter of law, pure

and simple; counsel’s representation could have done nothing to

change that fact.

6. Reversal is not required

To the extent Tarkington intends to argue that the court’s

order must be reversed because the court failed to specify what

portions of the record it relied upon, we disagree. To facilitate

appellate review and ensure a clear record, a court ruling on a

section 1170.95 petition should indicate on the record, and in its

order or in a minute order, what materials it reviewed and relied

upon to make its ineligibility finding. The court did not do so

here. But the omission is of no moment.

As noted, in making the threshold determination of

eligibility, a court may rely upon readily ascertainable materials

in the court file and record of conviction.15 (Verdugo, supra, 44

Cal.App.5th at pp. 329–330, rev.gr.; Lewis, supra, 43 Cal.App.5th

at pp. 1137–1138, rev.gr.) Certainly, it would not have been

difficult to glean from the record here that Tarkington was

ineligible. That the court did examine the record is evident from

its description of the case in its written order. We have taken

The dissent frames the issue before us as whether a court,

prior to the appointment of counsel or briefing, may “examine its

records or its memory” to determine whether the prima facie

showing was met. (Dis. opn., post, at p. 10, italics added.) This is

a red herring. We do not hold that a court can simply rely on its

memory of a case to make an eligibility or entitlement finding,

the parties do not so argue, we are unaware of any court that has

so held, and—as the dissent seems to acknowledge—the trial

court did not do so here. (Dis. opn., post, at p. 23.) Memory is

fallible, and obviously does not suffice. A court’s ruling on the

first prima facie eligibility showing must be based on the record

in the case.

judicial notice—at Tarkington’s request—of the record in his

case.16 As discussed, it indisputably shows Tarkington is

ineligible. This is not a case in which the court may have made a

factually erroneous finding. Thus, the trial court’s failure to

sufficiently identify the portions of the record upon which it relied

does not warrant reversal.

Given that we have taken judicial notice of the record in

this case at Tarkington’s request, the dissent’s criticism that our

holding rests on our “independent review of the record,” is

curious. (Dis. opn., post, at p. 25.) And, contrary to the dissent’s

assertion that review of the record is likely to be a time-

consuming task that the Legislature hoped to spare the courts,

we can confirm that the time required to review the relevant

portions of the record in this case—i.e., the jury instructions, the

verdict forms, and our prior opinion in the case—did not prove to

be onerous.

DISPOSITION

The order is affirmed.

CERTIFIED FOR PUBLICATION

EDMON, P. J.

I concur:

EGERTON, J.

LAVIN, J., Dissenting:

Defendant Anthony Lyle Tarkington filed a petition for

resentencing under Penal Code section 1170.95 that was

complete, filed in the correct court, served on the right parties,

and alleged eligibility under the statute. He also requested the

appointment of counsel. This appeal presents the following

question: May a trial court summarily deny a statutorily-

compliant resentencing petition without appointing counsel if it

determines that the petitioner was the actual killer and,

therefore, not entitled to statutory relief? I would hold that the

answer to that question is “no,” and reverse. Therefore, I

respectfully dissent.

PROCEDURAL BACKGROUND

By information dated December 18, 1996, Tarkington was

charged with one count of murder (Pen. Code,1 § 187, subd. (a);

count 1) with a knife (§ 12022, subd. (b)). The information also

alleged Tarkington had been convicted of three prior strikes in

1982 (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)). After a trial,

a jury convicted him of second degree murder and found the

personal-use and strike allegations true. The court imposed a

third-strike sentence of 46 years to life—three times the required

term of 15 years to life for count 1 plus one year for the personal-

use allegation. (See § 1170.12, subd. (c)(2)(A)(i).)

On January 28, 2019, Tarkington filed a petition for

resentencing under section 1170.95. The petition asked the court

to appoint counsel to represent him during the resentencing

process.

All undesignated statutory references are to the Penal Code.

On February 13, 2019, the court issued the following order

denying the petition:

“The Court has considered the petition for

resentencing filed by defendant Anthony

Tarkington on January 28, 2019.

“In 1997, Tarkington was convicted of second degree

murder for stabbing a man to death on June 22,

1996. The victim was waiting on line for free donuts

and coffee in the skid row area of Los Angeles.

Tarkington was convicted in part when DNA

confirmed a spot of blood on his shoe was the

victim’s.

“As the actual killer, Tarkington is not entitled to

relief under Penal Code § 1170.95.

“The petition for resentencing is unmeritorious and

is denied.”

The minute order of that date noted that Tarkington was

not present and was not represented by counsel. The record does

not reveal the basis for the court’s factual conclusions.

Tarkington filed a timely notice of appeal.

DISCUSSION

Tarkington contends the trial court erred by summarily

denying his resentencing petition without appointing an attorney

to represent him or receiving briefing from the prosecution. The

People argue that because Tarkington was the actual killer,

section 1170.95 does not apply to him, and he cannot receive any

benefit from it, including the appointment of counsel; they do not

explain what process the court should use to reach that

conclusion. The majority holds that the trial court may review the

record of conviction to determine whether it “conclusively shows

that the defendant is ineligible as a matter of law” before

appointing counsel or receiving a responsive brief from the

prosecution; if so, it may summarily deny the petition. (Maj. opn.

ante, p. 26.)

I agree with Tarkington.

1. Senate Bill No. 1497

Murder is “the unlawful killing of a human being … with

malice aforethought.” (§ 187, subd. (a).) Malice may be express or

implied. (§ 188.) Express malice is the intent to kill, whereas

implied malice exists “where the defendant … acted with

conscious disregard that the natural and probable consequences

of [his] act or actions were dangerous to human life. [Citation.]”

(People v. Gonzalez (2018) 5 Cal.5th 186, 197.)

“Not all murder requires the People to prove the defendant

killed intentionally or with conscious disregard for life,” however.

(People v. Rios (2000) 23 Cal.4th 450, 460, fn. 6.) A killing may

also become murder by operation of the felony-murder rule.

“Under the felony-murder rule, a homicide is murder when it

occurs in the course of certain serious and inherently dangerous

felonies. [Citations.] In such cases, the intent to commit a

dangerous felony that actually results in death is substituted for

malice, thus establishing the extent of culpability appropriate to

murder. [Citations.]” (Ibid.) “Felony-murder liability,” therefore,

“does not require an intent to kill, or even implied malice, but

merely an intent to commit the underlying felony. [Citation.]”

(People v. Gonzalez (2012) 54 Cal.4th 643, 654.)

“Murder is divided into first and second degree murder.

(§ 189.) ‘Second degree murder is the unlawful killing of a human

being with malice … .’ ” (People v. Chun (2009) 45 Cal.4th 1172,

1181.) “If the … killing was also deliberate and premeditated, the

jury could convict the defendant of first degree murder.” (People

v. Gonzalez, supra, 5 Cal.5th at p. 197.) Felony murder, on the

other hand, was formerly divided into degrees based on the felony

committed. “If the felony [was] listed in section 189, the murder

[was] of the first degree; if not, the murder [was] of the second

degree. [Citations.]” (People v. Gonzalez, supra, 54 Cal.4th at

p. 654.)

Senate Bill No. 1437 (S.B. 1437), which took effect on

January 1, 2019, changed these rules to ensure a “person’s

culpability for murder [is] premised upon that person’s own

actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1,

subd. (g).)

First, S.B. 1437 limited accomplice liability for murder.

Under prior California law, every accomplice to an enumerated

felony could be convicted of first degree murder if a death

occurred during the commission of that felony—regardless of

whether the accused killed or intended to kill. (See People v.

Dillon (1983) 34 Cal.3d 441, 462–472.) Similarly, “a defendant

who aided and abetted a crime, the natural and probable

consequence of which was murder, could be convicted not only of

the target crime but also of the resulting murder”—regardless of

whether he acted with malice aforethought. (In re R.G. (2019) 35

Cal.App.5th 141, 144.)

Now, however, a person may be convicted of first degree

murder only if: he was the actual killer; or with the intent to kill,

he aided and abetted the actual killer’s commission of first degree

murder; or he acted as a “major participant” in a felony listed in

section 189 and with “reckless indifference to human life.” (§ 189,

subd. (e), as amended by Stats. 2018, ch. 1015, § 2; § 188,

subd. (a)(3) [“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 may not be imputed to a person

based solely on his or her participation in a crime.”], as amended

by Stats. 2018, ch. 1015, §3.)2

Second, S.B. 1437 abolished second degree felony murder.

(Stats. 2018, ch. 1015, §2, amending § 188, subd. (e)(3).) Thus, the

felony murder doctrine now applies only to those felonies listed in

section 189, subdivision (a), and to accomplices who meet the

requirements in section 189, subdivision (e).

In addition to changing the law of murder prospectively,

S.B. 1437 gave people who had been convicted under one of the

now-invalid theories the opportunity to petition for resentencing

under newly-enacted section 1170.95. (Stats. 2018, ch. 1015, § 4.)

Section 1170.95, subdivision (a),3 describes who may petition for

resentencing under the statute. Subdivision (b) explains what

information the petition must contain, where the petitioner must

file it, who the petitioner must serve, and what the court should

do if it’s incomplete. Subdivision (c)—the section at issue here—

describes the process the court uses to determine whether the

petitioner is entitled to an evidentiary hearing. Finally,

subdivisions (d)–(g) describe the procedures for holding an

evidentiary hearing, the type of evidence that may be admitted,

In addition, an accomplice may be still be convicted of first

degree felony murder if the victim was a peace officer engaged in

the performance of his duties, and the accomplice knew or

reasonably should have known this. (§ 189, subd. (f).)

All undesignated subdivision references are to section 1170.95.

the burden of proof, and the requirements for resentencing an

eligible petitioner.

2. Standard of Review

Section 1170.95’s procedural requirements are a

“question[ ] of statutory interpretation that we must consider de

novo.” (People v. Prunty (2015) 62 Cal.4th 59, 71.) As with any

case involving statutory interpretation, our primary goal is to

ascertain and effectuate the lawmakers’ intent. (People v. Park

(2013) 56 Cal.4th 782, 796.) To determine intent, we first

examine the statutory language and give the words their

ordinary meaning. (Ibid.)

If the statutory language is unambiguous, its plain

meaning controls; if the statutory language is ambiguous, “ ‘ “we

may resort to extrinsic sources, including the ostensible objects to

be achieved and the legislative history.” [Citation.] Ultimately we

choose the construction that comports most closely with the

apparent intent of the lawmakers, with a view to promoting

rather than defeating the general purpose of the statute.

[Citations.]’ ” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313,

321.)

3. Section 1170.95

Section 1170.95 establishes a four-step resentencing

process: the petition, the prima facie review, an evidentiary

hearing, and the resentencing.

The court uses the first two steps to evaluate whether the

petitioner is entitled to an evidentiary hearing: First, the court

assesses the petition’s sufficiency. That is, did the petitioner

comply with the requirements of section 1170.95, subdivision (b)?

If the answer is yes, the court proceeds to step two, in which,

using the process laid out in subdivision (c), the court determines

whether the petitioner has made a prima facie showing that he or

she is entitled to relief. If so, the court must issue an order to

show cause why relief should not be granted and proceed to step

three, the evidentiary hearing. If not, the court may deny the

petition.

3.1. Does the petition comply with subdivision (b)?

The process begins when the petitioner files and serves a

petition that complies with the requirements of section 1170.95,

subdivision (b)(1). Subdivision (b)(1) states:

“The petition shall be filed with the court that

sentenced the petitioner and served by the

petitioner on the district attorney, or on the agency

that prosecuted the petitioner, and on the attorney

who represented the petitioner in the trial court or

on the public defender of the county where the

petitioner was convicted. If the judge that originally

sentenced the petitioner is not available to

resentence the petitioner, the presiding judge shall

designate another judge to rule on the petition. The

petition shall include all of the following:

“(A) A declaration by the petitioner that he or

she is eligible for relief under this section,

based on all the requirements of

subdivision (a).

“(B) The superior court case number and year of

the petitioner’s conviction.

“(C) Whether the petitioner requests the

appointment of counsel.”

(§ 1170.95, subd. (b)(1).) To comply with subdivision (b)(1)(A), the

petitioner must declare that “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).)

A petition is sufficient if it meets the requirements of

subdivision (b)(1). On the other hand, if the petitioner does not

comply with subdivision (b)(1), and the court cannot readily

supply any missing information, the court may summarily deny

the petition under subdivision (b)(2):

“If any of the information required by this

subdivision 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.”

(§ 1170.95, subd. (b)(2), italics added.)

The court’s review at this stage is narrow: Did the

petitioner check the correct boxes? Does the case number exist?

Was the petition filed in the right county? Were the necessary

parties served? Nevertheless, subdivision (b)(2) demonstrates

that the Legislature knew how to give the courts power to deny

petitions summarily. It did so in subdivision (b)(2). But it did not

do so anywhere else in the statute.

3.2 Is the petitioner entitled to an evidentiary

hearing?

If the petition is sufficient—that is, if it complies with the

requirements in section 1170.95, subdivision (b)—the court

moves on to the briefing stage, described in subdivision (c), in

which it tests the allegations in the petition:

“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 petitioner makes a prima facie showing that he

or she is entitled to relief, the court shall issue an

order to show cause.”

(§ 1170.95, subd. (c).)

This court is asked to interpret subdivision (c) to decide the

exceedingly narrow question of what must occur—and in what

order—after the court receives a complying petition but before it

issues an order to show cause. Specifically, does the first sentence

of subdivision (c) allow the court—before appointing counsel or

receiving responsive briefs—to examine its records or its memory,

determine the petitioner has not made the required prima facie

showing, and summarily deny the petition? I conclude it does not.

4. Plain Meaning

At first blush, subdivision (c) seems clear. The first

sentence states the rule: “The court shall review the petition and

determine if the petitioner has made a prima facie showing that

[he or she] falls within the provisions of this section.” (§ 1170.95,

subd. (c).) The rest of the subdivision establishes the process for

complying with that rule: Appoint counsel, if requested. Wait for

the prosecutor’s required response and the petitioner’s optional

reply. If the petitioner makes a prima facie showing, issue an

order to show cause.

Nevertheless, the majority points to a tension between

subdivision (c)’s use of prima facie in both the first sentence4 and

the last sentence.5 (Maj. opn. ante, at pp. 10–11.)

5. Legislative History

The majority “agree[s] the statutory language requiring

appointment of counsel is mandatory,” but concludes “the

statutory language is ambiguous” as to “when such appointment

is required.” (Maj. opn. ante, at pp. 10–11.)6 Likewise, the District

“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.” (§ 1170.95, subd. (c),

italics added.)

“If the petitioner makes a prima facie showing that he or she is

entitled to relief, the court shall issue an order to show cause.”

(§ 1170.95, subd. (c), italics added.)

Following People v. Lewis (2020) 43 Cal.App.5th 1128 (Lewis)

(rev. granted Mar. 18, 2020, S260598), the majority concludes

that the sentences in subdivision (c) are organized

“chronologically” and, because “prima facie” appears twice, the

petitioner must make two prima facie showings. (Maj. opn. ante,

at pp. 11–12.) That is, the first sentence of subdivision (c)

requires the court to determine whether the petitioner has made

a prima facie showing that he falls within the provisions of the

statute. (§ 1170.95, subd. (c).) The requirement to appoint counsel

appears in the second sentence. (Ibid.) Because the first sentence

appears before the second sentence, the court must make a “first”

prima facie determination before appointing counsel. (Lewis, at

pp. 1139–1140.)

But Lewis’s holding rests on a false premise. Certainly, as that

opinion notes, the subdivisions in section 1170.95 proceed

chronologically. (Lewis, supra, 43 Cal.App.5th at p. 1140.) But it

does not follow, as Lewis assumes, that the sentences within each

subdivision are likewise chronological. To the contrary, they

Attorney, as amicus curiae, suggests that “the statutory language

is ambiguous about whether the court must appoint counsel in all

petitions or only after the court finds a prima facie case.” To

resolve the question of whether subdivision (c) contemplates one

prima facie showing or two, I turn to the legislative history.

5.1. Every version of S.B. 1437 contemplated that

petitioners would be represented by counsel

upon filing a sufficient petition.

S.B. 1437’s textual history clarifies that the Legislature

contemplated a petitioner would be represented by counsel upon

filing a sufficient petition, and counsel would help the court

determine whether to hold a resentencing hearing. (See, e.g.,

Pacific Bell v. Public Utilities Com. (2000) 79 Cal.App.4th 269,

279, fn. 4 [“Successive drafts before the Legislature may be

helpful in interpreting a statute when its meaning is unclear.”].)

S.B. 1437 was introduced on February 16, 2018, and

amended twice—once in the Senate, on May 25, 2018, and once in

the Assembly, on August 20, 2018. (S.B. 1437, Sen. Final Hist.

(2017–2018 Reg. Sess.) p. 664.) The August 20, 2018 version of

plainly are not. Take subdivision (b) for example. Subdivision

(b)(1) starts by explaining that the petition must be filed in the

sentencing court. Then, it lists the people and agencies that must

be served. Next, it circles back to note that if the original

sentencing judge is not available, the presiding judge can appoint

someone else to rule on the petition. Only after addressing filing,

service, and the decision-maker does it mention what the petition

should say. Then, its focus returns to the decision-maker, who

may deny the petition if it is missing required information. I see

no reason to assume subdivision (c) proceeds chronologically

when subdivision (b) clearly does not.

the bill was then passed by the Senate and signed into law.

(Ibid.)

As introduced, S.B. 1437 required the court, upon receipt of

a complying petition, to assemble various documents,7 notify

counsel that a petition had been filed, and request a written

response. The notice section stated:

“The court shall also provide notice to the attorney

who represented the petitioner in the superior court

and to the district attorney in the county in which

petitioner was prosecuted. Notice shall inform each

that a petition has been filed pursuant to this

section and shall request that a response be filed

from both parties as to whether the petitioner is

entitled to relief.”

(S.B. 1437 (2017–2018 Reg. Sess.) as introduced Feb. 16, 2018,

§ 6.)

Apparently realizing that petitioners’ trial attorneys might

not still be available, on May 25, 2018, the Senate amended the

bill to allow the court to provide notice either “to the attorney

who represented the petitioner in the superior court, or to the

public defender if the attorney of record is no longer

available … .” (S.B. 1437 (2017–2018 Reg. Sess.) as amended May

The court was required to obtain: a copy of the charging

document; the abstract of judgment; if the conviction was by plea,

a copy of the reporter’s transcript of the plea; if a trial was held,

the verdict forms; the sentencing transcript; and “[a]ny other

information the court finds relevant to its decision, including

information related to the charging, conviction, and sentencing of

the petitioner’s codefendants in the trial court.” (S.B. 1437 (2017–

2018 Reg. Sess.) as introduced Feb. 16, 2018, § 6.)

25, 2018, § 6, italics omitted, bold added.) It also upgraded the

briefing requirement from a “request that a response be filed

from both parties” to an order “that a response from both

parties … is required to be filed within 60 days.” (S.B. 1437

(2017–2018 Reg. Sess.) as introduced Feb. 16, 2018, § 6; id., as

amended May 25, 2018, § 6.)

On August 20, 2018, the Assembly amended S.B. 1437 to

relieve the trial courts of most of these tasks. As amended, the

bill no longer required the court to compile records, notify the

parties, or request briefing. (S.B. 1437 (2017–2018 Reg. Sess.) as

amended Aug. 20, 2018, § 4.) Instead, the amended bill required

the petitioner to notify the prosecutor and either his trial attorney

or the public defender by serving them with copies of the petition.

(Ibid.) It also required him to state whether he requested the

appointment of counsel. (Ibid.) This provision became section

1170.95, subdivision (b).

Similarly, in the Assembly version, the court no longer had

to order the prosecutor and defense counsel to respond to the

petition within 60 days. Instead, only the prosecutor had to

respond—and the deadline was automatic. The court still had to

appoint counsel to represent the petitioner, but that requirement

was made explicit and only upon request. This amendment also

offered greater flexibility: The court could appoint a new lawyer if

trial counsel were no longer available, and petitioners could

retain private counsel or represent themselves if they wished to

do so. This provision became section 1170.95, subdivision (c).

In sum, the first two versions of S.B. 1437 assumed that

once he filed a sufficient petition, the petitioner would be

represented by counsel—either because he was already

represented or because the court would issue any order necessary

to effectuate the representation; the final version of the bill

explicitly requires the court to appoint counsel on request. But

there is no indication the Legislature’s views about timing

changed.

To the contrary, if the Legislature had anticipated that the

court would undertake its own review of the merits of the petition

as an intermediate step before appointing counsel, it would have

calculated the deadlines not from the date of service of the

petition but instead from the date the court completed its initial

review. And though the Legislature required the prosecution to

respond within 60 days of being served with the petition, it did

not create a deadline for the court to conduct an intermediate

review. Nor is there any provision allowing the court to relieve

the parties of these statutory requirements.8

By omitting those steps, the Legislature signaled it did not

intend for the court and prosecutors to duplicate their efforts by

conducting the same review of the same documents at the same

time. Instead, it appears from the history outlined above that the

bill was revised to ensure every petitioner who wanted a lawyer

would have one—not to impose a barrier where none had existed.

Significantly, this differs from habeas corpus proceedings, in

which filing the petition triggers a deadline for the court—not for

the parties. (Cal. Rules of Court, rule 4.551(a)(3)(A).) Likewise, in

habeas proceedings, a response need only be filed if the court

requests one, and it’s the court’s request that triggers the

deadline for the response. (Id., rules 4.551(a)(4)(C), 4.551(b).)

5.2. The Legislature rejected a request to allow courts

to deny petitions summarily without appointing

counsel.

Certainly, that is the procedure the bill’s author, justice

community stakeholders, and the Governor believed was being

enacted. Perhaps the clearest expression of the Legislature’s

intent on this point is its decision to reject the typical

postconviction procedure. (See, e.g., Kelly v. Methodist Hospital of

So. California (2000) 22 Cal.4th 1108, 1116 [relying on rejection

of proposed amendment to interpret statute].)

On August 20, 2018, the Assembly passed what would

become the final version of S.B. 1437, and returned the bill to the

Senate. As relevant here, the Assembly’s amendments shifted

responsibility for gathering documents from the court to

prosecutors, shifted responsibility for serving counsel from the

court to the petitioner, clarified that the court must, upon

request, appoint counsel to represent the petitioner, and clarified

the showing a petitioner must make to qualify for a resentencing

hearing.9 (Compare S.B. 1437 (2017–2018 Reg. Sess.) as amended

May 25, 2018, with id., as amended Aug. 20, 2018.)

On August 28, 2018, shortly after the Assembly passed the

amended version of S.B. 1437, the Judicial Council wrote to

Senator Nancy Skinner, chairwoman of the Senate Public Safety

Committee and the bill’s author, to request additional changes.

The letter explained that the “council appreciate[d] the

As first introduced in the Senate, S.B. 1437 required the court

to hold a resentencing hearing if it found there was “sufficient

evidence that the petitioner falls within the provisions of this

section … .” (S.B. 1437 (2017–2018 Reg. Sess.) as introduced Feb.

16, 2018, § 6, italics added.)

August 20, 2018 amendments, which include[d] the majority of

the amendments requested by the council.” (Sharon Reilly, Jud.

Council of Cal., letter to Sen. Nancy Skinner (2017–2018 Reg.

Sess.) Aug. 28, 2018, p. 1, available at

<https://www.courts.ca.gov/documents/ga-position-letter-senate-

sb1437-skinner.pdf> [as of May 26, 2020], archived at

<https://perma.cc/6GKB-BNQM> [hereafter Jud. Council letter].)

Nevertheless, the Council stressed, “the bill should be amended

to authorize courts to summarily dismiss petitions that do not

make a prima facie case without a hearing consistent with

petitions for writs of habeas corpus and for resentencing under

Proposition 36 and Proposition 47.” (Id. at pp. 1–2, fn. omitted.)

The letter continued:

“Consistent with these other provisions of law, the

council believes that it is more efficient for courts to

have the ability to deny petitions filed pursuant to

SB 1437 early in the process when they do not make

a prima facie showing. …

“[T]he council is concerned that appointing counsel

and involving the prosecution in the petition process

before an initial review by the court will place

unnecessary burdens on courts and on the

prosecutors and public defenders to review and

respond to petitions that the judge will ultimately

summarily deny at a hearing because the petition

does not make a prima facie showing.”

(Jud. Council letter, supra, p. 2.)

Thus, the Judicial Council asked Senator Skinner to amend

S.B. 1437 to adopt the following procedure:

1. Upon receiving the petition, “the court shall

determine whether the petitioner has made a

prima facie showing that [he or she] falls

within the provision of the bill …”; “before

making that determination,” “the court may”—

but is not required to—“request an informal

response from the prosecutor”;

2. “if the court determines that the petitioner” has

made “a prima facie showing, the court shall

issue an order to show cause (OSC)”;

3. only then must the court appoint counsel to

represent the petitioner;

4. within 60 days of service of the OSC, rather

than from service of the petition, the prosecutor

must file and serve a response; the petitioner

may reply within 30 days after that; and

5. the court shall hold a hearing 60 days after

briefing is complete.

(Jud. Council letter, supra, p. 2, italics added.) In short, the

Judicial Council urged the Legislature to adopt the procedure the

majority suggests the statute already requires—the procedure

used in this case.

The Senate passed S.B. 1437 as amended on August 30,

2018. On September 13, 2018, the Judicial Council sent a similar

letter to the Governor, urging him to veto the bill. (Cory T.

Jasperson, Jud. Council of Cal., letter to Governor Edmund G.

Brown, Jr. (2017–2018 Reg. Sess.) Sept. 13, 2018, available at

<https://www.courts.ca.gov/documents/ga-position-letter-senate-

sb1437-skinner.pdf> [as of May 26, 2020], archived at

<https://perma.cc/6GKB-BNQM>.)

Other groups opposed the bill for similar reasons. For

example, the San Diego District Attorney urged the Governor to

veto the legislation because, among other reasons:

“To petition for resentencing, SB 1437 requires that

a person seeking resentencing merely submit a

request indicating that he or she was convicted of

murder; that the prosecution theory for murder

could have included felony murder, or murder by

natural and probable consequences; that [the

petitioner] could not have been convicted [of

murder] under current law; and the superior court

case number, the year of conviction, and whether

the petitioner requests the appointment of counsel.

“The prosecutor would be required in each and

every case in which a petition has been filed,

to research the facts and theories upon which a

murder conviction was based, and respond

accordingly.”

(Summer Stephan, San Diego Dist. Atty., letter to Governor

Edmund G. Brown, Jr. (2017–2018 Reg. Sess.) Sept. 4, 2018,

Governor’s chaptered bill files, ch. 1015, p. 2, bold added; see id.

at p. 3 [S.B. 1437 “does not provide an adequate mechanism to

deter frivolous petitions”].)

Ultimately, however, although the Judicial Council and

other stakeholders had urged it to adopt procedures “consistent

with petitions for writs of habeas corpus and for resentencing

under Proposition 36 and Proposition 47,” the Legislature

rejected that approach. (Jud. Council letter, supra, p. 2, fns.

omitted.) Instead, it created new, different rules. Under those

new rules, when the court receives a sufficient petition, it must

appoint counsel if the petitioner has requested it; the prosecutor

must take a position on whether the petitioner is eligible for a

resentencing hearing; and the court must give the petitioner,

represented by counsel, a chance to respond. I assume that choice

was intentional.

Nevertheless, the majority declines to consider the Judicial

Council’s views because, it insists, letters to the Governor are

“not cognizable legislative history.” (Maj. opn. ante, p. 18.) The

majority is mistaken: This was not just any letter; it was a letter

from the Judicial Council of California.

“The Judicial Council is the policymaking body of the

California courts, the largest court system in the nation. Under

the leadership of the Chief Justice and in accordance with the

California Constitution, the council is responsible for ensuring

the consistent, independent, impartial, and accessible

administration of justice. Judicial Council staff help implement

the council’s policies.” (<https://www.courts.ca.gov/policyadmin-

jc.htm> [as of May 26, 2020], archived at <https://perma.cc/5ZZQ-

M3TM>.) Broadly, the Judicial Council is to the Chief Justice as

executive agencies are to the Governor.

As such, reports from the Judicial Council to the Governor

are official statements from the judicial branch, and are

analogous to the enrolled bill reports executive agencies present

to the Governor after a bill’s passage and before the Governor

signs it. And enrolled bill reports are proper legislative history.

(See, e.g., People v. Ruiz (2018) 4 Cal.5th 1100, 1111, fn. 3 [“We

have often found enrolled bill reports to be ‘ “instructive” ’ as to

the Legislature’s intent, purpose, and understanding in enacting

a statute, because they are ‘generally prepared within days after’

the statute’s passage and are written by ‘governmental

department[s] charged with informing the Governor about the

[statute] so that he can decide whether to sign it, thereby

completing the legislative process.’ [Citation.]”]; see also Pacific

Bell v. Public Utilities Com., supra, 79 Cal.App.4th at p. 279

[citing correspondence from the Judicial Council to the bill’s

author as evidence of legislative intent in successive drafts of

legislation]; Ghanooni v. Super Shuttle (1992) 2 Cal.App.4th 380,

387–388 [considering unadopted Judicial Council proposals as

indicators of legislative intent].)10

6. Appointment of counsel is not an absurd result.

Nor is appointment of counsel for all petitioners who file

complying petitions an absurd result the Legislature could not

possibly have intended. (See People v. Escarcega (2019) 32

Cal.App.5th 362, 381.)

To be sure, the Public Defender and Alternate Public

Defender, as amici curiae, acknowledge there may be scenarios in

which, as a practical matter, the court would be able, summarily

The majority attempts to distinguish these cases on the ground

that the Judicial Council letters were communicated to the

various committee chairs rather than to the bill’s author. (Maj.

opn. ante, pp. 22–23, fn. 14.) Yet they appear to agree that letters

communicated to committee chairs are proper legislative history.

(Ibid.) Here, the letter was written to Senator Skinner, who not

only authored S.B. 1437, but was also the chairwoman of the

Senate Public Safety Committee.

and without controversy, to deny a complying petition under

section 1170.95 without the benefit of briefing. But both amici

express concerns about the contours of such a rule and urge that

it should not apply if the petitioner was convicted of a potentially

qualifying offense or in cases in which “there is any legally

cognizable theory that might be advanced as to why a petitioner

might be entitled to relief … .” Similarly, the District Attorney

suggests the court should appoint counsel unless “the petition

and any reasonably available court records … conclusively show

that the defendant is ineligible as a matter of law … .”

Against these amorphous standards, appointment of

counsel upon filing of a facially valid petition presents a clear,

easy-to-apply rule. The question, then, is whether the Legislature

could not possibly have intended the consequences of such a

bright-line rule. I see no absurdity.

First, the majority has not persuaded me that summarily

denying petitions without appointing counsel would further

judicial economy. As amicus curiae Professor Kate Chatfield

notes, clear-cut “cases can be addressed expeditiously while still

complying with the statute and providing a petitioner the process

he or she is due.” If, based on the record of conviction or the facts

of the case, a petition is clearly meritless, the prosecutor can

submit a simple brief summarizing why the petitioner is not

entitled to a resentencing hearing. Such a brief need be no longer

than the order the court prepared in this case. In response,

counsel for petitioner may simply submit on the record.

Reviewing such filings places a de minimis extra burden on trial

courts.

On the other hand, assembling and reviewing the record to

spot potential claims itself, as the court may have done here,11

rather than relying on counsel to do it, as the statute

contemplates, creates more work for the trial courts, not less—

especially in cases in which the superior court has destroyed

records that the prosecution may still have.12

But even assuming the practice leads to short-term

efficiencies, those savings are a false economy that shifts work

from trial counsel to appellate counsel and from the trial courts

to the appellate courts. As the Public Defender explains:

Contrary to the majority’s apparent belief, the record does not

reveal what documents, if any, the trial court reviewed before

concluding that as the actual killer, Tarkington was ineligible for

relief. (Maj. opn. ante, at p. 28, fn. 15.) I note, however, that a

trial court should not resort to information never offered in open

court without affording the parties a reasonable opportunity to

meet such information before judicial notice is taken. (Evid. Code,

§ 455, subd. (b).) One of the corollaries of canon 3 of the Code of

Judicial Conduct (“A Judge Should Perform the Duties of Judicial

Office Impartially, Competently, and Diligently”) is that a judge

must not independently investigate facts in a case and must

consider only the evidence presented, unless otherwise

authorized by law. (Code Jud. Conduct, commentary to canon

3B(7).) Any factual inquiry independently undertaken by the trial

court in this case without affording Tarkington a reasonable

opportunity to meet such information is, in my view,

uncharacteristic of an impartial judge.

Indeed, as discussed above, the Legislature removed the

requirement that the courts assume the record-assembly burden

that the majority now places on them. It seems clear that the

Legislature’s intent was for the prosecution to assemble the

records instead of the courts rather than in addition to them.

“In cases where judges have denied the petitions

without appointment of counsel, Amicus’s Office has

ended up filing motions to vacate those denials. The

refusals to do so have resulted in our filing Notices

of Appeal, which are wending their way to this

court. We expect a substantial volume of appeals in

this posture. It is likely that this court will remand

for evidentiary hearings in many such cases. If

relief is then denied, yet another appeal will result.”

Similarly, the Alternate Public Defender notes that since

section 1170.95’s effective date, her office “has experienced more

than 100 summary denials” of sufficient petitions “without ever

appointing the A.P.D. and without ever providing an opportunity

to be heard, based solely on the court’s in camera review of the

petition.” As with the Public Defender’s cases, “Notices of appeal

have been filed in virtually all of these cases, but no opportunity

to be heard to flesh out the issues or to develop a record was ever

permitted by the summary denial. This is problematic because

the issues that would have been raised and the facts that would

have been presented had the petitioner been given an

opportunity to be heard have not been resolved by appellate

courts at the time of the denial. As a result, many of these cases

will often need to be remanded to the trial courts in order to

develop that record. The refusal by the superior court to appoint

counsel will likely generate entirely avoidable appellate litigation

which could be avoided by appointing counsel.”

This court’s own experience bears this out: When the court

does not give the parties an opportunity to flesh out the issues,

raise facts not previously before any court, or otherwise develop a

record below, the appellate record we receive is incomplete and

difficult to review. Cases in which the prosecution assembles the

record below and writes a short explanatory brief before defense

counsel submits on the record are much less time-consuming on

appeal than cases like this one, in which we cannot even

determine the basis for the trial court’s decision. That is true

even when, as the majority suggests, the court’s ultimate denial

of the petition is correct. (Maj. opn. ante, at pp. 26–27.) Indeed, in

this case, the majority’s conclusion that the court correctly

determined Tarkington was not eligible for resentencing

apparently rests on its independent review of the record in

Tarkington’s prior appeal—a time-consuming task the

Legislature attempted to spare it. (Id. at pp. 27–28.) And its

ability to do so rested on mere luck: Tarkington’s case is recent

enough that we still had the record in our archives. That is not

always true.

Second, because section 1170.95 requires appointment of

counsel, briefing by the prosecutor, the opportunity for

petitioner’s counsel to present a reply brief, and an evidentiary

hearing when necessary, the Legislature understood there would

be costs to local agencies. (Stats. 2018, ch. 1015, p. 95 [“By

requiring the participation of district attorneys and public

defenders in the resentencing process, this bill would impose a

state-mandated local program.”].) Thus, S.B. 1497 provided: “If

the Commission on State Mandates determines that this act

contains costs mandated by the state, reimbursement to local

agencies … for those costs shall be made pursuant to Part 7

(commencing with Section 17500) of Division 4 of Title 2 of the

Government Code.” (Stats. 2018, ch. 1015, § 5.)

Third, the judiciary’s resources are not the Legislature’s

only concern. The Legislature can—and apparently did—conclude

that the risk courts would erroneously deny petitions by

unrepresented litigants and the substantial cost of continuing to

house those litigants in prison outweighed any efficiencies to be

gained by appointing counsel at a later stage of proceedings. I can

infer the Legislature’s view on this subject because, as discussed

in detail above, the Judicial Council made that very argument to

support its rejected amendment. (Jud. Council letter, supra, p. 2.)

In any event, the question is not, as the Lewis court

appears to suggest, whether “[a]llowing the trial court to consider

its file and the record of conviction” before appointing counsel is

“sound policy.” (Lewis, supra, 43 Cal.App.5th at p. 1138.) The

question is whether it is absurd to believe the Legislature

adopted a different one. (See, e.g., California School Employees

Assn. v. Governing Bd. of South Orange County Community

College Dist. (2004) 124 Cal.App.4th 574, 588 [“We must exercise

caution using the ‘absurd result’ rule; otherwise, the judiciary

risks acting as a ‘ “super-Legislature” ’ by rewriting statutes to

find an unexpressed legislative intent.”]; Austin v. Medicis (2018)

21 Cal.App.5th 577, 597, fn. 7 [“Certainly, as [appellant] argues,

there are compelling policy reasons to support a different rule,

and if the Legislature wishes to apply the tolling rules more

broadly, it may do so. But it is up to the Legislature, and not the

courts, to rewrite this statute—and until it does, we must apply

[the statute] as written.”].)

7. Conclusion

In this case, Tarkington submitted a petition under

section 1170.95 in which he complied with all the requirements in

subdivision (b) and requested the appointment of counsel. The

trial court was therefore required to appoint counsel to represent

him and await the prosecution’s mandatory response and

Tarkington’s optional reply before deciding whether to issue an

order to show cause. It did not. Therefore, I would remand for the

court to comply with the requirements in section 1170.95,

subdivision (c).

LAVIN, J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.