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California Supreme Court:
Petitioner Seeking Resentencing Entitled to Counsel
Unanimous Court Says Trial Judge May Not, at the Outset, Look at Record in Case to Determine if There Is Eligibility for Relief and Withhold Appointment Where It Is Clear That Requisites Are Not Satisfied
By a MetNews Staff Writer
The California Supreme Court held yesterday that a defendant who was convicted of murder was entitled to appointment of counsel upon filing a facially adequate petition for resentencing based on his contention that he was found guilty under the now-repudiated “natural and probable consequences” doctrine, even though the Court of Appeal had previously determined that the conviction was pinned to a different theory.
That doctrine and, to a large extent, the felony murder rule were repudiated by SB 1437, enacted and signed into law in 2018, as bases for a murder conviction. The legislation added §1170.95 to the Penal Code providing for petitions for resentencing of persons convicted under either of those theories.
Justice Joshua P. Groban wrote for a unanimous court yesterday in reversing a Jan. 6, 2020 Court of Appeal decision of this district’s Div. One. That opinion, by Presiding Justice Frances Rothschild, affirmed an order by Los Angeles Superior Court Judge Ricardo R. Ocampo denying the resentencing petition of Vincent E. Lewis, who was found guilty in 2012 of first degree murder.
2014 Opinion
Ocampo did not order the appointment of counsel for Lewis in light of Div. One’s July 14, 2014 opinion affirming the conviction. That opinion, also by Rothschild, said that Ocampo unwittingly erred in giving an instruction under the “natural and probable consequences” doctrine because that doctrine was later determined to be inapplicable in a case, such as the present one, of premeditated murder, but the jurist declared the error to be harmless.
Evidence that Lewis aided and abetted in a premeditated gang-related murder, she explained, “is so strong that we are convinced beyond a reasonable doubt that the instructional error was harmless.” One factor she pointed to was that “Lewis was the gang’s shot-caller,” according to the evidence, and “only the shot-caller could authorize the killing of a gang member.”
In her 2020 opinion, Rothschild said that Ocampo “did not err by considering our opinion in defendant’s direct appeal in evaluating his petition.” In the 2014 opinion, she recited, “we held that the record established that the jury found defendant guilty beyond a reasonable doubt on the theory that he directly aided and abetted the perpetrator of the murder,” rendering Lewis ineligible for relief under §1170.95.
Groban’s Opinion
Groban saw it differently. Ocampo was obliged not to pay heed to the Court of Appeal’s 2014 utterance prior to appointment of counsel, he wrote.
Where the Supreme Court differed with the Court of Appeal was over an interpretation of Subd. (c) of §1170.95, which says that the court, in reviewing a resentencing petition, must “determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section,” adding:
“If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.”
It next calls for written briefs and provides: “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.”
Rothschild provided this interpretation:
“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.’…In sum, the 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. 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.”
Appointment Required
Groban said:
“Contrary to the Court of Appeal’s decision, we conclude that the statutory language and legislative intent of section 1170.95 make clear that petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition…and that only after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether ‘the petitioner makes a prima facie showing that he or she is entitled to relief.’ ”
He observed that Div. One and the Office of Attorney General inferred that the two references in Subd. (c) to “a prima facie showing” call for “two distinct, sequential inquiries”: first, whether the petitioner “falls within the provisions’ of the statute” and second, whether “he or she is entitled to relief.” The justice continued:
“By chronologically parsing out each sentence of subdivision (c), the Court of Appeal concluded that a petitioner is only entitled to counsel, if requested, after successfully making the first prima facie showing….
“We reject this interpretation of section 1170.95, subdivision (c). Rather, we read subdivision (c) to describe only a single prima facie showing….Considering subdivision (c)’s language in the context of section 1170.95 as a whole…, subdivision (c) clearly describes a single process. More specifically, the first sentence of subdivision (c) does not require a distinct prima facie showing before the appointment of counsel.”
Groban went on to say:
“[B]ecause the briefing schedule is tied to the filing of the petition itself and because there is no time limit by which courts must make this purported ‘first step’ analysis, section 1170.95, subdivision (c) does not envision a structure by which courts can make an initial determination without briefing and without the appointment of counsel. Instead, there is a much more logical interpretation of this provision, and it is the one we adopt here: a complying petition is filed; the court appoints counsel, if requested; the issue is briefed; and then the court makes one (not two) prima facie determination.”
Noting that “[t]here is no unconditional state or federal constitutional right to counsel to pursue collateral relief from a judgment of conviction,” Groban said that Campo’s denial of Lewis’s petition could be determined to have been harmless. The matter was remanded to the Court of Appeal to decide if it was.
The case is People v. Lewis, 2021 S.O.S. 4146.
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