Filed 9/16/20 P. v. Wooten CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B299935
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA065825)
v.
JAMES D. WOOTEN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Allen Joseph Webster, Jr., Judge. Affirmed.
Charlotte E. Costan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kristen J. Inberg and J. Michael Lehmann,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________
Defendant James D. Wooten appeals from the trial court’s
summary denial of his petition for resentencing under Penal
Code section 1170.95.1 Although defendant claims he meets the
prerequisites for relief under the statute because he was
convicted of felony-murder, he does not – the record shows he was
the actual killer. As defendant is ineligible for resentencing as a
matter of law, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Underlying Facts2
“In 1988, Dwayne Walker was shot and killed at a gas
station. He was killed with a .38 caliber bullet fired from a
revolver. Three witnesses, who were stopped at an adjacent
intersection, saw the gunman rifle through Walker’s pockets and
search his car. Walker had a wallet with money in it at the time
of the shooting. The gunman then left on foot, in the direction of
a nearby church. At the church, the gunman carjacked a woman
who had just entered the church parking lot and drove off. The
car was later abandoned.
“Although the carjacking victim helped police prepare a
composite sketch of her assailant, and the witnesses provided
descriptions to police, the police were unable to identify the killer.
Fingerprints were taken from the outside of Walker’s car’s
1 All undesignated statutory references are to the Penal
Code.
2 Our discussion of the underlying facts is taken from the
opinion in our prior appeal. (People v. Wooten (Sept. 13, 2004,
B171508) [nonpub. opn.] [2004 WL 2029727].) Although neither
Wooten nor the Attorney General asks us to take judicial notice
of the record in our prior appeal, they both rely on the opinion.
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driver’s side window, but no match was made. Walker had
washed his car weekly.
“In 2002, cold case investigators resubmitted the
fingerprints to the California identification databank. Defendant
was identified as a possible match. A fingerprint analyst
confirmed that the prints belonged to defendant. Homicide
investigators compiled a photographic display with a photograph
of defendant taken in 1988. The three witnesses and the
carjacking victim each identified defendant’s photograph with
differing degrees of certainty. Defendant lived less than a mile
from the location at which the carjacking victim’s car had been
abandoned.
“The police also attempted to determine whether a gun
defendant had been known to possess could be identified as the
murder weapon. In 1996, defendant had been arrested at the
scene of a robbery of an auto parts store. A gun had been found
and attributed to defendant. The gun was a Smith & Wesson .38
caliber revolver. In 2002, police test-fired the revolver and
compared the test bullet to the bullet that killed Walker. Both
bullets showed the same ‘general rifling characteristics,’ which
could be produced by guns made by only three manufacturers.
However, due to a small defect in the gun, there were insufficient
individual marks to enable a further comparison. The revolver
could not be identified as the gun that killed Walker; nor could it
be excluded.
“Defendant offered a defense of third party culpability.
When police had arrived at the gas station, they had obtained a
description of the gunman and searched the neighborhood. Police
found a man, Rene Johnson, who seemed to match the general
description, and brought him to the scene. Johnson was shown to
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Walker when Walker was drifting in and out of consciousness as
the paramedics worked on him. Officers asked, ‘Is this him?’
Walker stated, ‘Yes, that is him.’ ” (People v. Wooten, supra,
(B171508) [2004 WL 2029727, **1-2], footnote omitted.)
2. Information, Conviction, and Appeal
Defendant was charged by information with a single count
of murder (§ 187). The special circumstance that the murder was
committed while defendant was engaged in the crime of robbery
was alleged (§ 190.2, fmr. subd. (a)(17)), as was a personal use of
firearm enhancement (§ 12022.5, subd. (a)(1)).
Defendant represented himself at trial and was convicted
as charged. He was sentenced to life imprisonment without the
possibility of parole, with a consecutive two-year term for the
firearm enhancement.
On direct appeal from his conviction, defendant raised four
contentions. A prior panel of this division rejected the first three
arguments, and partly modified the judgment (changing the
special circumstance from robbery-murder to attempted robbery-
murder) in response to the fourth.
3. Senate Bill No. 1437 and New Section 1170.95
In 2018, the Legislature adopted Senate Bill No. (SB) 1437
which, among other things, amended the felony-murder rule.
(People v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo)
review granted Mar. 18, 2020.) Specifically, SB 1437 amended
section 189 to provide that an aider and abettor cannot be
convicted of felony murder unless the defendant acted with the
intent to kill or was a major participant who acted with reckless
indifference to human life. SB 1437 did not alter felony murder
culpability when the liability was not vicarious, and, even after
amendment, retained felony-murder liability for a person who
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“was the actual killer.” (§ 189, subd. (e)(1).) SB 1437 also
enacted a new statutory procedure, codified in section 1170.95, by
which a defendant convicted of murder under the felony-murder
rule could seek resentencing under the new, narrower, version of
the law.3
4. Defendant’s Resentencing Petition
On May 9, 2019, defendant, representing himself, filed a
petition for resentencing under section 1170.95. The petition was
handwritten, and asserted that defendant had been convicted of
first-degree murder and could not be convicted now under the
amendments enacted by SB 1437. He sought the appointment of
counsel.
Defendant attached to his petition a “Declaration of
Eligibility” in which he explained the reasons he believed he was
entitled to relief. These reasons did not relate to the
amendments enacted by SB 1437, but were instead an attempt to
improperly relitigate his guilt and his appeal. Specifically,
defendant argued he was eligible for relief because: (1) he was
factually innocent as Johnson was the real killer and the
evidence against defendant was speculative; (2) the Court of
Appeal lacked statutory authority to modify his special
circumstance to attempted robbery; (3) the prosecution was
improperly permitted to present prejudicial evidence of other
crimes; (4) the trial court should have sua sponte instructed on
third-party culpability; and (5) the prosecution’s failure to turn
over Johnson’s gunshot residue report deprived defendant of due
process.
3 The statute also modified the natural and probable
consequences doctrine. Defendant was not convicted under that
theory, so we do not discuss it further.
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The trial court denied the petition without a hearing,
because the record disclosed as a matter of law defendant was the
actual killer and, therefore, did not fall within the scope of
section 1170.95. Defendant filed a timely notice of appeal.
DISCUSSION
1. Defendant was Ineligible for Relief Under Section
1170.95 as a Matter of Law
Once a section 1170.95 petition is filed, there follows a
multi-step process by which, if defendant is successful, results in
resentencing. (Verdugo, supra, 44 Cal.App.5th at p. 328.) This
appeal concerns only the first step, in which the trial court
determines whether the petition is facially complete, and, if so,
whether the petitioner has made a prima facie showing that he
falls within the provisions of statutory eligibility. (People v.
Torres (2020) 46 Cal.App.5th 1168, 1177, review granted June 24,
2020.) If the court determines at this first stage the petitioner is
ineligible for relief as a matter of law, the petition is denied; if
not, the court proceeds to the next step. (Id. at p. 1178.) Here,
defendant’s petition was denied at the first stage; the court found
defendant ineligible for relief as a matter of law because he was
the actual killer.
The trial court’s order does not specifically identify the
materials on which it relied for its conclusion that defendant was
the actual killer. Defendant assumes the court relied on the prior
appellate opinion – a reasonable assumption. Where the prior
appellate opinion conclusively demonstrates that the defendant
was convicted on a theory which would render the defendant
ineligible for relief under section 1170.95, the petition is properly
denied at the eligibility stage. (People v. Tarkington (2020)
49 Cal.App.5th 892, 899, review granted June 4, 2020 [defendant
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was actual killer]; People v. Cornelius (2020) 44 Cal.App.5th 54,
58, review granted Mar. 18, 2020 [defendant personally and
intentionally discharged a firearm causing death (§ 12022.53,
subd. (d)), and, as the actual killer, was ineligible for 1170.95
relief].)
On appeal, defendant argues that he established a prima
facie case for relief, based on evidence and arguments that he
might have been factually innocent. But defendant never argues
that his conviction was based on anything other than actual-
killer culpability. No facts suggest he might have been convicted
as an aider and abettor.4 The issue at trial was who was the lone
killer -- defendant or Johnson. There was no suggestion that the
two men had been working together and that defendant aided
and abetted Johnson or anyone else. Defendant pointed to
Johnson as the actual killer and claimed that he, defendant, had
nothing to do with the crime. Thus, the dispute at trial was the
identity of the lone gunman. The jury resolved that issue against
defendant.
While SB 1437 modified the law of murder in some cases of
vicarious liability, it made no modifications to the law of murder
for the actual perpetrator. Section 1170.95 does not provide a
basis for reconsidering the guilt of defendants indisputably
convicted on the basis that they were the actual killer.
2. Defendant Had No Right to Counsel at the Eligibility
Stage
Defendant argues that he was statutorily and
constitutionally entitled to appointed counsel on his section
1170.95 petition and the failure to appoint counsel alone requires
4 In defendant’s reply brief on appeal, he concedes that he
was “charged as the actual perpetrator.”
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reversal. Defendant’s petition was denied at the initial,
eligibility stage, at which there is no statutory right to counsel.
The language of section 1170.95 “makes plain the Legislature’s
intent to permit the sentencing court, before counsel must be
appointed, to examine readily available portions of the record of
conviction to determine whether a prima facie showing has been
made that the petitioner falls within the provisions of section
1170.95 . . . .” (Verdugo, supra, 44 Cal.App.5th at p. 323. See also
People v. York (2020) ___ Cal.App.5th ___ [2020 WL 5249362,
* 3]; People v. Tarkington, supra, 49 Cal.App.5th at pp. 99-900;
People v. Torres, supra, 46 Cal.App.5th at pp. 1177-1178; People
v. Cornelius, supra, 44 Cal.App.5th 54, 58; People v. Lewis (2020)
43 Cal.App.5th 1128, pp. 1139-1140, review granted Mar. 18,
2020; but see People v. Cooper (2020) ___ Cal.App.5th ___ [2020
WL 5175210, *4].)
As to defendant’s constitutional argument, both state and
federal constitutions grant a defendant who faces incarceration
the right to counsel at all critical stages of the process. (People v.
Rouse (2016) 245 Cal.App.4th 292, 296-297.) A sentencing
hearing typically constitutes a critical stage, as does a
postconviction resentencing hearing, at least when the sentence
is vacated and the defendant is resentenced anew on all counts.
(Id. at pp. 297, 299.) Whether a particular posttrial hearing
constitutes a critical stage turns on (1) an analysis of whether
potential substantial prejudice to defendant’s rights inheres in
the particular confrontation proceeding; and (2) the likely ability
of counsel to help avoid that prejudice. The essence of a critical
stage is “the adversary nature of the proceeding, combined with
the possibility that a defendant will be prejudiced in some
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significant way by the absence of counsel. [Citation.]” (Id. at
p. 297.)
Under this test, the initial section 1170.95 prima facie
eligibility determination conducted by the trial court does not
qualify as a critical stage. At the first stage, the court is tasked
only with determining whether there is a prima facie showing
that the defendant falls within the provisions of the statute as a
matter of law. The court must draw all factual inferences in the
defendant’s favor. (Verdugo, supra, 44 Cal.App.5th at p. 329.)
This prima facie review is not an adversarial proceeding. Nor is
it akin to a sentencing hearing. The court does not rule on
disputed issues of fact; it must consider the facts in defendant’s
favor. (Ibid.) In such a proceeding, counsel is not
constitutionally required. (See People v. Barton (1978) 21 Cal.3d
513, 519, fn. 3 [right to counsel attaches on defendant’s collateral
attack on his conviction after stating a prima facie case]; In re
Clark (1993) 5 Cal.4th 750, 780 [same].) See also People v.
Shipman (1965) 62 Cal.2d 226, 232–233 [counsel need not be
appointed in connection with a writ of coram nobis in the absence
of adequate factual allegations stating a prima facie case].)
In any event, Sixth Amendment rights do not attach to
postconviction collateral remedies that are not plenary
resentencing hearings but only provide for limited downward
adjustments. (Dillon v. United States (2010) 560 U.S. 817, 826,
828 [rejecting Sixth Amendment right to jury in limited
resentencing proceeding based on downward modification of
applicable sentencing guidelines].) SB 1437 represents an act of
lenity to which Sixth Amendment rights do not attach prior to
the resentencing hearing itself. (See People v. Anthony (2019)
32 Cal.App.5th 1102, 1156-1157 [rejecting Sixth Amendment
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right to jury in section 1170.95 proceedings]; People v. Rouse,
supra, 245 Cal.App.4th at pp. 298-299 [no Sixth Amendment
right to counsel prior to the resentencing hearing under an
intervening act of lenity providing for a downward modification of
sentence].)
DISPOSITION
The order denying defendant’s petition is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
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