Prisoners entitled to appointment of counsel when making a prima facie case under SB 1437

People v. Lewis (Cal., July 26, 2021, No. S260598) 2021 WL 3137434, at *1

Summary: The California Supreme Court reviewed Senate Bill No. 1437 (Stats. 2018, ch. 1015; Senate Bill 1437) which eliminated natural and probable consequences liability for murder and limited the scope of the felony murder rule. (Pen. Code, §§ 188, subd. (a)(3), 189, subd. (e), as amended by Senate Bill 1437.) Senate Bill 1437 also added section 1170.95 to the Penal Code,1 which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.

In this case, the court decided two issues.
(1) may superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief?;
(2) when does the right to appointed counsel arise?

Here, the trial court considered the record of conviction without appointing counsel and summarily denied defendant Vince E. Lewis’s section 1170.95 petition. The Court of Appeal concluded this procedure was proper. The California Supreme Court concluded 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 (see § 1170.95, subds. (b), (c)) 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.” (§ 1170.95, subd. (c).)

The deprivation of Lewis’s right to counsel under subdivision (c) of section 1170.95 was state law error only, tested for prejudice under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 (Watson). The parties dispute whether the trial court’s failure to appoint counsel can be deemed harmless on this record. We decline to reach that issue. We instead reverse the Court of Appeal’s judgment and remanded the cause to the Court of Appeal for an evaluation of prejudice under Watson.

A jury convicted Lewis and two co-defendants of first degree murder. (§ 187, subd. (a).) The jury further found that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(c)) and that Herrera personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). Lewis was sentenced to 25 years to life. He appealed his conviction and the Court of Appeal affirmed stating that the record that Lewis directly aided and abetted in the deliberate, premeditated murder of the victim.

Senate Bill 1437 and petitions for resentencing

Effective January 1, 2019, the Legislature passed Senate Bill 1437 “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).) In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bill 1437 added section 1170.95, which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. (See Gentile, supra, 10 Cal.5th at p. 843, 272 Cal.Rptr.3d 814, 477 P.3d 539.)

Under 1170.95, an offender must file a petition in the sentencing court averring that: “(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[;] [and] (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.” If a petition fails to comply with subdivision (b)(1), “the court may deny the petition without prejudice to the filing of another petition ….” (§ 1170.95, subd. (b)(2).)

Where the petition complies with subdivision (b)’s three requirements, then the court proceeds to subdivision (c) to assess whether the petitioner has made “a prima facie showing” for relief. (§ 1170.95, subd. (c).)

If the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then 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 … previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).) “The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” (§ 1170.95, subd. (d)(3).) At the hearing stage, “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)

Lewis’ Section 1170.95 Petition

Lewis filed a petition complying with section 1170.95 in the sentencing court, wherein he requested counsel. On February 4, 2019, the superior court, without appointing counsel, summarily denied the petition by minute order. The court concluded, in pertinent part, that Lewis did not make a prima facie case for resentencing under Senate Bill 1437 because, based on the Lewis I court’s decision on direct appeal, he “would still be found guilty with a valid theory [direct aiding and abetting] of first degree murder.”
Lewis appealed. The Court of Appeal affirmed the trial court’s summary denial. (Lewis II, supra, 43 Cal.App.5th 1128, 257 Cal.Rptr.3d 265.) The court rejected Lewis’s claims that the trial court erred by not appointing counsel and relying on the record of conviction to summarily deny his petition. The Supreme Court granted Lewis’s petition for review.

Appointment of counsel
Section 1170.95. Subdivision (c) provides in full: “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 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.”
The Court of Appeal concluded that a petitioner is only entitled to counsel, if requested, after successfully making the first prima facie showing. (Lewis II, at p. 1140, 257 Cal.Rptr.3d 265.)
We reject this interpretation of section 1170.95, subdivision (c). The Supreme Court read subdivision (c) to describe only a single prima facie showing.
Under its natural reading, “ ‘[t]he first sentence [of subdivision (c)] states the rule’ ” and “ ‘[t]he rest of the subdivision establishes the process for complying with that rule.’ ” (Cooper, at p. 115, 268 Cal.Rptr.3d 417, quoting People v. Tarkington (2020) 49 Cal.App.5th 892, 917, 263 Cal.Rptr.3d 469 (dis. opn. of Lavin, J.), review granted Aug. 12, 2020, S263219 (Tarkington); accord Daniel, at pp. 673–674, 271 Cal.Rptr.3d 591, review granted.)

To read the first sentence of subdivision (c) to thereafter provide for another pre-briefing review by the court, without the assistance of counsel, conflicts with the overall structure of section 1170.95. (See People v. Valencia (2017) 3 Cal.5th 347, 357–358, 220 Cal.Rptr.3d 230, 397 P.3d 936 [“But ‘[t]he words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible’ ”].)

Significantly, whether a petitioner “requests the appointment of counsel” is part of the information that must be included in a petition for it to satisfy the court’s subdivision (b)(2) review. (§ 1170.95, subd. (b)(1)(C); see also subd. (b)(2).) Subdivision (c)’s language regarding the appointment of counsel is mandatory: “If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.” (§ 1170.95, subd. (c), italics added.) The combined meaning is clear: petitioners who file a complying petition requesting counsel are to receive counsel upon the filing of a compliant petition.

Senate Bill 1437 was enacted “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).) Lewis points out, “section 1170.95 requires legal and factual inquiry into complex legal theories (felony murder, and natural and probable consequences) not easily understood by an unrepresented litigant.” Appointing counsel to assist a petitioner in navigating these complex theories, upon the filing of a facially sufficient petition, promotes the reliability of section 1170.95’s petitioning process and thereby advances Senate Bill 1437’s stated purpose.

The Court of Appeal concluded it was “sound policy” to delay the appointment of counsel in the manner it described because 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.’ ” (Lewis II, supra, 43 Cal.App.5th at p. 1138, 257 Cal.Rptr.3d 265, quoting Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2019) ¶ 23:51(H)(1), pp. 23–150 to 23–151; accord, Tarkington, supra, 49 Cal.App.5th at p. 901, 263 Cal.Rptr.3d 469, review granted.)

No cost savings from trial court’s summary denial of SB 1437 petitions
Permitting trial courts to summarily deny relief before the appointment of counsel would not significantly conserve judicial resources. “[E]ven 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.” (Tarkington, supra, 49 Cal.App.5th at p. 925, 263 Cal.Rptr.3d 469 (dis. opn. of Lavin, J.), review granted.) Leaving it to an appellate court to review a summary denial, on an underdeveloped record, arguably places a greater strain on judicial resources than appointing counsel from the outset. (See Tarkington, at p. 926, 263 Cal.Rptr.3d 469 [“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”].)

Record of conviction
A trial court can rely on the record of conviction in determining whether that single prima facie showing is made. The answer is yes. In fact, Lewis agrees that “the court may — with the benefit of advocacy for both sides — consider the record of conviction at [the prima facie] stage.” In Lewis’s view, appointed counsel and the prosecutor “can and should make use of the record of conviction.” Notably, there is no disagreement amongst the Courts of Appeal regarding the propriety of the parties and the trial court looking at the record of conviction after the appointment of counsel.The record of conviction will necessarily inform the trial court’s prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute’s overall purpose: to ensure that murder culpability is commensurate with a person’s actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process. (See Stats. 2018, ch. 1015, § 1, subd. (f).)

Like the analogous prima facie inquiry in habeas corpus proceedings, “ ‘the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause.’ ” (Drayton, supra, 47 Cal.App.5th at p. 978, 261 Cal.Rptr.3d 335, quoting Cal. Rules of Court, rule 4.551(c)(1)).) “[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.” (Ibid., fn. omitted, citing In re Serrano (1995) 10 Cal.4th 447, 456, 41 Cal.Rptr.2d 695, 895 P.2d 936 (Serrano).) “However, if the record, including the court’s own documents, ‘contain[s] facts refuting the allegations made in the petition,’ then ‘the court is justified in making a credibility determination adverse to the petitioner.’ ” (Drayton, at p. 979, 261 Cal.Rptr.3d 335, quoting Serrano, at p. 456, 41 Cal.Rptr.2d 695, 895 P.2d 936.)

Appellate opinions are generally considered to be part of the record of conviction. (See People v. Woodell (1998) 17 Cal.4th 448, 454–455, 71 Cal.Rptr.2d 241, 950 P.2d 85.) However, as we cautioned in Woodell, the probative value of an appellate opinion is case-specific, and “it is certainly correct that an appellate opinion might not supply all answers.” (Id. at p. 457, 71 Cal.Rptr.2d 241, 950 P.2d 85.)
A petitioner is not constitutionally entitled to counsel at the outset of the subdivision (c) stage of the section 1170.95 petitioning process. (Accord Daniel, supra, 57 Cal.App.5th at p. 676, 271 Cal.Rptr.3d 591, review granted.) At that point, the petitioner has not yet “stated facts sufficient to satisfy the court that a hearing is required,” but merely endeavors to do so. (Shipman, supra, 62 Cal.2d at p. 232, 42 Cal.Rptr. 1, 397 P.2d 993.) The trial court’s failure to appoint counsel to represent Lewis was state law error only.

The error is reviewed for prejudice under Watson.
Typically, when an “error is purely one of state law, the Watson harmless error test applies.” (People v. Epps (2001) 25 Cal.4th 19, 29, 104 Cal.Rptr.2d 572, 18 P.3d 2; see Watson, supra, 46 Cal.2d at p. 836, 299 P.2d 243.) However, state statutory error may amount to structural error if it is “ ‘analogous to’ … ‘the total deprivation of the right to counsel at trial.’ ” (People v. Lightsey (2012) 54 Cal.4th 668, 699, 143 Cal.Rptr.3d 589, 279 P.3d 1072 (Lightsey), quoting Arizona v. Fulminante (1991) 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302.)

The Supreme Court remanded to the Court of Appeal for further proceedings to determine if the failure to appoint counsel was harmless or not.