Filed 9/14/20 P. v. Lawson CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B299681
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A790260-01)
v.
KIM LAWSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Douglas Sortino, Judge. Affirmed.
Patricia Ihara, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Idan Ivri and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Kim Lawson appeals from the superior court’s order
denying his petition under Penal Code section 1170.95,1 which
allows certain defendants convicted of murder under a felony
murder or natural and probable consequences theory to petition
the court to vacate their convictions and for resentencing.
Lawson argues that his petition stated a prima facie case for
relief under the statute and that the superior court erred in
ordering briefing and denying the petition without appointing
him counsel.
We agree the superior court erred in ordering briefing
without appointing counsel. The error, however, was harmless
because the jury’s verdict finding Lawson guilty of special
circumstance murder in the course of a robbery required the jury
to find Lawson had the intent to kill. Because under section 189,
subdivision (e)(2), an aider or abettor who acts with the intent to
kill may still be convicted of murder, Lawson is ineligible for
resentencing under section 1170.95. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Lawson of First Degree Murder, and
This Court Affirms
In September 1986 Lawson, Kendall Patterson, and a
juvenile went to a “rock house” where Gregory Williams, Gregory
Fleming, and Jimmy Thomas sold cocaine. Patterson shot
Williams in the forehead, and Williams collapsed on the floor.
Patterson also shot Fleming, who survived and testified at trial.
1 Statutory references are to the Penal Code.
2
Fleming stated he saw Lawson straddle Williams’s body, take
money and a pendant, and say, “Is this all he got?” Lawson’s
juvenile companion said, “Gregory’s not dead,” and Lawson shot
Williams in the chest at point-blank range.
The jury found Lawson guilty of first degree murder for
killing Williams. The jury also found that Lawson committed the
murder while he was engaged in the commission of a robbery and
that Lawson personally used a firearm within the meaning of
section 12022.5. The court sentenced Lawson to life in prison
without the possibility of parole for the murder of Williams with
robbery and firearm-use special circumstances.2
In February 1991 this court affirmed Lawson’s conviction.
Lawson did not argue in his direct appeal he did not have the
intent to kill during the commission of the robbery.
B. Lawson Petitions for Resentencing Under
Section 1170.95
On January 3, 2019 Lawson, representing himself, filed a
form petition under section 1170.95, asking the superior court to
vacate his first degree murder conviction and to resentence him.
In his petition Lawson checked boxes stating that he “could not
now be convicted of 1st or 2nd degree murder because of changes
made to Penal Code §§ 188 and 189, effective January 1, 2019”
and that “I was convicted of 1st degree felony murder and I could
2 The jury also convicted Lawson of the attempted murder of
Fleming and found that Lawson personally used a firearm in the
commission of the attempted murder of Fleming and that Lawson
personally inflicted great bodily injury on Fleming within the
meaning of section 12022.7. The jury also found Lawson guilty of
the attempted murder of Thomas.
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not now be convicted because of changes to Penal Code § 189.”
Lawson also checked the boxes stating, “I was not the actual
killer,” “I did not, with the intent to kill, aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer in
the commission of murder in the first degree,” and “I was not a
major participant in the felony or I did not act with reckless
indifference to human life during the course of the crime or
felony.” Lawson also checked the box stating, “I request that this
court appoint counsel for me during this re-sentencing process.”
On March 12, 2019, without appointing counsel for Lawson,
the superior court issued a minute order directing the People to
file a response to the petition on or before May 13, 2019, ordering
Lawson to “file any reply within 30 days of service of the People’s
response,” and setting a status hearing on the petition for May
13, 2019. The superior court subsequently received portions of
Lawson’s trial record. The May 13, 2019 deadline came and
went, and the People never filed a response.
After a member of Lawson’s family made an informal
inquiry about the status of Lawson’s petition, the superior court
held a hearing on June 3, 2019. Neither Lawson nor an attorney
for Lawson appeared. A deputy district attorney appeared at the
hearing, but he did not speak. The superior court stated that,
based on the version of CALJIC No. 8.81.17 the trial court gave
at Lawson’s trial, the jury, by finding true the robbery special
circumstance allegation, must have found Lawson had the intent
to kill. The court stated: “The jury necessarily determined,
based on the special [circumstance] finding, either that he was
the actual killer, which seems to me to be what they did, since
they found the personal use to be true. Or, even if there was
some problem with him being the actual killer and only an aider
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and abettor in the murder, they necessarily found by virtue of the
special circumstance [finding] that he intended to kill. Either of
those findings are sufficient to take him outside the scope of . . .
[section] 1170.95, because he was either the actual killer or, if an
aider and abettor, he acted with the intent to kill.” The court,
finding “no prima facie case has been established,” ruled Lawson
was ineligible for relief under section 1170.95 and denied
Lawson’s petition for resentencing “in its entirety.” The court
also vacated the order requiring the People to respond to
Lawson’s petition and denied Lawson’s request for counsel.
Lawson timely appealed.
DISCUSSION
A. Applicable Law
Senate Bill No. 1437, effective January 1, 2019, amended
“the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1(f); see
People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted
Mar. 18, 2020, S260598 (Lewis).)3 Senate Bill No. 1437 added
section 1170.95, which provides that a “person convicted of felony
3 The Supreme Court in Lewis limited briefing to the
following 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 under Penal Code
section 1170.95? (2) When does the right to appointed counsel
arise under Penal Code section 1170.95, subdivision (c)?
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murder or murder under a natural and probable consequences
theory may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts 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. . . . [¶]
(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); see Lewis, at
pp. 1135-1136.)
Senate Bill No. 1437 added section 189, subdivision (e),
which provides: “A participant in the perpetration or attempted
perpetration of a felony . . . in which a death occurs is liable for
murder only if one of the following is proven: [¶] (1) The person
was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3)
The person was a major participant in the underlying felony and
acted with reckless indifference to human life . . . .”
Section 1170.95 prescribes the process the court must
follow in ruling on a petition for resentencing. (People v. Verdugo
(2020) 44 Cal.App.5th 320, 327, review granted Mar. 18, 2020,
S260493 (Verdugo).)4 First, the petitioner submits a petition for
relief, which includes a declaration he or she is eligible for relief
4 The Supreme Court in Verdugo, supra, S260493 ordered
briefing deferred pending its disposition of People v. Lewis, supra,
S260598.
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and a request for counsel, if any. (§ 1170.95, subd. (b)(1);
Verdugo, at p. 327.)
Second, before ordering briefing, the superior court
determines whether the petitioner has made a prima facie
showing he or she is eligible for resentencing. (§ 1170.95,
subd. (c); Verdugo, supra, 44 Cal.App.5th at p. 328.) In making
this determination, the court may consider the record of
conviction and readily available documents in the court file,
including the charging information and jury instructions. (People
v. Tarkington (2020) 49 Cal.App.5th 892, 908, review granted
Aug. 12, 2020, S263219 (Tarkington); People v. Edwards (2020)
48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481
(Edwards).) An unpublished court of appeal opinion is part of the
record of conviction. (Verdugo, at p. 333; Lewis, supra,
43 Cal.App.5th at p. 1138.)
The court may summarily deny a petition under section
1170.95 based on the court’s review of the record of conviction.
(Edwards, supra, 48 Cal.App.5th at p. 674; Verdugo, supra,
44 Cal.App.5th at p. 333; Lewis, supra, 43 Cal.App.5th at
p. 1138.) The court may deny a petition at this stage of the
proceedings if the record of conviction includes “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 No.] 1437’s amendments to sections
188 and 189.” (Verdugo, at p. 330.) Alternatively, if information
“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); see Edwards, at p. 672.) If the petitioner
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requested counsel, the superior 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. (Lewis, at p. 1140; see Verdugo, at p. 332 [“The structure
and grammar of [section 1170.95, subdivision (c),] 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.”]; People v. Cornelius
(2020) 44 Cal.App.5th 54, 58 (Cornelius) [superior court is not
statutorily required to appoint counsel if the petitioner “is
indisputably ineligible for relief”], review granted Mar. 18, 2020,
S260410.)
Third, if the court determines after reviewing the record of
conviction the petitioner is not ineligible as a matter of law, the
court appoints counsel for the petitioner if requested, directs the
prosecutor to file a response within 60 days, and permits the
petitioner to file a reply within 30 days of receiving the
prosecutor’s response. (§ 1170.95, subd. (c); Verdugo, supra,
44 Cal.App.5th at p. 332.) If the petitioner makes the prima facie
showing he or she is entitled to relief, the superior court must
issue an order to show cause. (§ 1170.95, subd. (c).) Finally,
“[w]ithin 60 days after the order to show cause has issued, the
court shall hold a hearing” to determine whether to resentence
the petitioner. (§ 1170.95, subd. (d)(1); see Verdugo, at p. 327.)
The court should not issue an order to show cause or have a
hearing “unless the court first determines a prima facie showing
of entitlement to relief.” (Edwards, supra, 48 Cal.App.5th at
p. 673.)
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B. The Superior Court Erred in Ordering Briefing and
Scheduling a Hearing Without Appointing Counsel
Lawson filed his petition on December 18, 2018, alleging he
was eligible for resentencing under the changes to section 189.
Lawson did not attach any supporting documentation to his
petition. On March 12, 2019, without appointing counsel for
Lawson, the court issued an order directing the People to file a
response to the petition by May 13, 2019 and ordering Lawson to
file a reply within 30 days of the People’s response. The court
also set a status conference on the petition for May 13, 2019, the
same day the People’s briefing was due.
As discussed, section 1170.95 authorizes the superior court
to consider the record of conviction in making the initial prima
facie determination. (Verdugo, supra, 44 Cal.App.5th at p. 332.)
Had the court not ordered the parties to submit briefs on
Lawson’s petition, there would be no question the court properly
could have considered the record and determined, without
appointing counsel, Lawson was ineligible for relief as a matter of
law. (See Tarkington, supra, 49 Cal.App.5th at pp. 901-902
[superior court did not err in summarily denying a petition under
section 1170.95 without appointing counsel where the petitioner
was “ineligible as a matter of law”]; Verdugo, at pp. 332-333 [if
“the petitioner has failed to make the initial prima facie showing
required by subdivision (c), counsel need not be appointed”].) But
the court ordered briefing, effectively proceeding to the next step
in the analysis. As the People concede, this was error; the court
must appoint counsel when ordering briefing. (Verdugo, at
p. 332.) The superior court violated Lawson’s statutory right
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under section 1170.95 to have a lawyer to represent him in
responding to the People’s brief.5
C. The Superior Court’s Error Was Harmless Because
Lawson Is Ineligible for Resentencing Under Section
1170.95 as a Matter Of Law
The superior court denied Lawson’s petition to vacate his
felony murder conviction, ruling Lawson was ineligible for relief
because the jury in his trial necessarily found he had the intent
to kill when the jury found true the robbery special circumstance
allegation. The jury instruction the court gave at trial, CALJIC
No. 8.81.17 (1984 rev.), required a finding Lawson had the intent
to kill: “To find that the special circumstance referred to in these
instructions as murder in the commission of robbery, is true, it
must be proved [¶] 1a. That the murder was committed while
the defendant was [engaged in] the [commission] of a robbery; [¶]
2. That the defendant [intended to kill a human being]; [¶]
3. That the murder was committed in order to carry out or
advance the commission of the crime of robbery or to facilitate
the escape therefrom or to avoid detection.”
Because the jury necessarily found Lawson “intended to kill
a human being” when he committed the robbery, he could still be
convicted of murder under amended section 189, subdivision
5 The superior court also erred in setting the hearing on the
petition for the same day the People’s response to the petition
was due. Section 1170.95, subdivision (c), gives the prosecutor 60
days to file and serve the response and the petitioner 30 days to
respond to the People’s response. The court set the hearing for a
date that was before Lawson would have filed his brief.
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(e)(2).6 (See Tarkington, supra, 49 Cal.App.5th at p. 899
[petitioner who was the actual killer was ineligible for
resentencing under section 1170.95 because he was convicted
under “a theory that survives the changes to sections 188 and
189”].) The appointment of counsel would not have changed the
fact Lawson is ineligible for relief under section 1170.95 as a
matter or law. (See People v. Law (2020) 48 Cal.App.5th 811, 826
[any error in failing to appoint counsel under section 1170.95 was
harmless beyond a reasonable doubt because, “[g]iven the trial
evidence, counsel would not have been able to demonstrate in a
reply brief or otherwise” the petitioner was eligible for relief],
review granted July 8, 2020, S262490.) Because Lawson does not
fall within the provisions of section 1170.95, the superior court’s
errors were harmless under the state law error standard of
People v. Watson (1956) 46 Cal.2d 818, 836. (See Edwards,
supra, 48 Cal.App.5th at p. 675 [any error in not appointing
counsel in a section 1170.95 petition was harmless under Watson
where the petitioner did not “fall within the provisions of section
1170.95 as a matter of law”]; In re Melvin A. (2000) 82
Cal.App.4th 1243, 1252 [“violation of a statutory right to counsel
is properly reviewed under the harmless error test enunciated in
People v. Watson”]; see generally People v. Epps (2001) 25 Cal.4th
6 As stated, the superior court also found Lawson may have
been the actual killer. But because the jury found Lawson
personally used a firearm, rather than personally and
intentionally discharged a firearm causing great bodily injury or
death, the People concede “it is theoretically possible that the
jury found [Lawson] was armed with a firearm during the
robbery in which the victim died, but did not actually fire the
killing shot.”
11
19, 29 [when the error is “purely one of state law, the Watson
harmless error test applies”].)7
DISPOSITION
The order is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
7 Contrary to Lawson’s contention the superior court did not
violate his constitutional right to counsel. The relief afforded by
section 1170.95 is “not subject to Sixth Amendment analysis.
Rather, the Legislature’s changes constituted an act of lenity that
does not implicate defendants’ Sixth Amendment rights.” (People
v. Anthony (2019) 32 Cal.App.5th 1102, 1156; accord, People v.
Lopez (2019) 38 Cal.App.5th 1087, 1114-1115, review granted
Nov. 13, 2019, S258175.)
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