People v. Thompson CA4/2

Filed 10/14/20 P. v. Thompson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E072819

v. (Super.Ct.No. RCR11884)

JEFFREY LEROY THOMPSON, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,

Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded.

Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant

and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J.

Hilton, Deputy Attorneys General, for Plaintiff and Respondent.

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 I. INTRODUCTION

In 1987, after a jury trial, defendant and appellant Jeffrey Leroy Thompson was

convicted of first degree felony murder and robbery. (Pen. Code, §§ 189, 211).1 In 2019,

defendant filed a petition for resentencing pursuant to newly enacted section 1170.95,

which the trial court denied without prejudice. Defendant appealed.

On appeal, defendant argues that his petition was improperly denied because he

made a prima facie showing for relief under section 1170.95, the court erred in failing to

provide counsel prior to hearing the petition, the court erred by holding a hearing without

defendant present, and the court erred by failing to allow defendant to file a reply brief.

Defendant also argues that the abstract of judgment must be amended to correct an error.

We reverse the trial court’s denial of defendant’s petition and remand with directions to

appoint counsel and permit briefing on whether defendant has made a prima facie

showing for entitlement to relief. We also order that the trial court amend the abstract of

judgment to correct the asserted error.

II. FACTUAL AND PROCEDURAL BACKGROUND2

Thompson had been employed at a Texaco gas station in Upland for several

months. Five days before the crimes, he was suspended from employment. A few days

later, he appeared at the station while the victim and another attendant were on duty.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 The Factual and Procedural Background is taken from this court’s nonpublished
1989 opinion affirming defendant’s judgment of conviction. (People v. Thompson
(Sept. 12, 1989, E004443) [nonpubl. opn.].)

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Thompson appeared to be angry about the suspension and he put his fist through a

window in the service bay area. He threatened to break the manager’s nose and either

rob or “rip-off” the station. He instructed the victim to tell the manager that a ladder had

fallen and that was how the window got broken. The manager, however, discovered the

truth and fired Thompson. Thompson then called the other attendant and “thanked” him

for “squealing” on him. While at the station, Thompson had also registered his anger

with the victim for telling a female acquaintance of Thompson’s that Thompson had been

suspended. Shortly after being fired, Thompson returned to the station and once again

expressed his anger over his termination. He threatened to “kick [the manager’s] ass.”

During the evening before the crimes, Thompson, Barclay, and Crutcher were

together at a pizza parlor. They told friends there that they intended to go to Kentucky

and Florida. Thompson and Barclay handled a switchblade knife which Thompson had

had the previous week. Crutcher displayed a gun he had taken from his mother at the

condo they shared. All three were very short of money. Barclay was angry because of a

fight he had been in with his cousin.

At one point, Thompson and Barclay said they were going to the Texaco station

for cigarettes. Thompson later appeared at the station where he filled his tank and

purchased soft drinks and cigarettes. Crutcher went to the condo, packed his belongings

into the back of his pickup truck and returned to the pizza parlor parking lot. The other

two also put their belongings into Crutcher’s truck. After the parlor closed, all three

stood outside in the lot talking with Tawna Maxwell and a male acquaintance. Barclay

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pointed the gun Crutcher had had earlier at Maxwell saying “Stick ‘em up.” She saw the

switchblade knife inside the truck.

The three later departed in Crutcher’s truck as Maxwell and the male friend

followed in their cars. They arrived at the station where the victim was on duty. While

the victim was busy at the pumps, Barclay and Crutcher helped themselves to the

cigarettes kept inside the station. When they saw a passing police officer, the three left

the station in the truck.

Around 2:00 a.m., a limousine driver who frequented the station pulled in and was

waited on by Thompson, whom he recognized from previous visits. Approximately one

hour later, another customer drove into the station. A man she later identified as

Thompson told her that the attendant had taken a break and was not there. After noticing

that a television in the station office had been turned up full volume, she left.

Approximately 15 minutes later, another customer entered the station. When no

one came to wait on him, he entered the station’s office. He noticed drawers had been

opened. Fearing something was wrong, he went to another station across the street and

asked the attendant there to call the police. A little more than an hour passed when

another customer came into the station and was unable to locate the attendant. After

waiting some time, still another customer arrived and the latter found the victim’s body in

the back room. The victim had been beaten with the leg of a chair and possibly with

another object, had been stabbed with a knife which was consistent with the switchblade

the defendants had the night before, and had been garroted with a wire which had been

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turned with a ballpoint pen. His hands had been tied with a piece of cloth and he had

been gagged. Shoe prints in blood on and near the victim’s body were consistent with the

soles of shoes worn by Barclay and found in Crutcher’s truck when they were later

arrested. Shoe prints in oil near the gas pumps were consistent with Thompson’s shoes.

Money, cigarettes, and keys were missing from the station, yet no fingerprints were left at

the scene.

Several days later, the defendants were apprehended by authorities in Texas.

Blood found on the jeans and shoes Barclay was wearing did not match him or the other

two defendants, but did match the victim’s, along with .67 percent of the population. So

too did blood discovered on shoes found in the truck and on the switchblade knife which

Crutcher had on him at the time of the arrest. Leather gloves found in the truck bore

human blood which could have been Crutcher’s or the victim’s (along with 51 percent of

the population) but it could not have been Barclay’s or Thompson’s. Packs of cigarettes

and a gun were also found in the truck.

After his arrest, Crutcher admitted to his mother that he had stolen items from her

home the night before the crime. He said he later pawned them because he needed the

money.

A jury convicted defendant of first degree felony murder and robbery. The trial

court sentenced defendant to an indeterminate term of 25 years to life in state prison for

the first degree murder, and five years state prison for the robbery. The trial court stayed

the five-year term pursuant to section 654.

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 Defendant appealed his judgment, and in 1989 this Court affirmed defendant’s

conviction.

In 2019, defendant filed a petition for resentencing pursuant to newly enacted

section 1170.95. The People filed a motion to strike defendant’s petition as

unconstitutional and provided an informal response alleging that defendant “failed to set

forth a prima facie case for relief.” On March 21, 2019, the trial court held a hearing on

defendant’s petition. Defense counsel appeared on behalf of defendant, but defendant

was not present. Defense counsel apparently received the case only the day before. The

court formally appointed defendant counsel. The court then denied defendant’s petition

without prejudice, stating “that it fails to set forth anything but a bald statement that he

was not a major participa[nt].” The court also stated that “if you read the appellate

decision . . . even the appellate court has said he was a major participant, and it wouldn’t

have happened except for him.” The trial court then advised defense counsel that it was

“appointing you to review it and decide whether or not you want to file an additional

appeal.”

Defendant timely appealed.

III. DISCUSSION

Defendant argues that the trial court improperly denied defendant’s petition for

resentencing because the petition stated a prima facie case and that a review on the merits

would have revealed that he was entitled to relief. Defendant also argues that he was

denied certain procedural rights, including that the appointment of counsel came too late

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to allow adequate representation, that he had a right to be personally present at the

hearing, and that he was not permitted to file a reply brief. The People argue that the trial

court’s order and the alleged procedural errors were at most harmless error.3

Defendant also argues that the abstract of judgment must be amended, because it

incorrectly shows that the five-year prior prison term for defendant’s robbery conviction

was imposed rather than stayed pursuant to section 654. The People agree.

A. Defendant’s Petition Made Prima Facie Case for Eligibility Under

Section 1170.95

1. History of Senate Bill 1437

Senate Bill 1437 “which became effective on January 1, 2019, addresses certain

aspects of California law regarding felony murder and the natural and probable

consequences doctrine by amending Penal Code sections 188 and 189, as well as by

adding Penal Code section 1170.95, which provides a procedure by which those

convicted of murder can seek retroactive relief if the changes in law would affect their

previously sustained convictions.” (People v. Martinez (2019) 31 Cal.App.5th 719, 722-

723 (Martinez).)

3 The People also argue that the trial court’s denial of defendant’s petition was not
appealable because it was “without prejudice.” However, our colleagues in the Fifth
District recently concluded that “an order denying a petition for recall of sentence and
resentencing pursuant to Penal Code section 1170.95 . . . is appealable pursuant to
section 1237, subdivision (b), as an order after judgment affecting the substantial rights
of the defendant.” (People v. Larios (2019) 42 Cal.App.5th 956, 961, review granted
Feb. 26, 2020, S259983.) We agree with the court in Larios that the denial of
defendant’s petition is appealable and review it accordingly.

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 Prior to Senate Bill 1437’s enactment, a person who knowingly aided and abetted

a crime, the natural and probable consequence of which was murder or attempted murder,

could be convicted of not only the target crime but also of the resulting murder or

attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 161; In re R.G. (2019)

35 Cal.App.5th 141, 144 (R.G.).) “This was true irrespective of whether the defendant

harbored malice aforethought. Liability was imposed ‘ “for the criminal harms [the

defendant] . . . naturally, probably, and foreseeably put in motion.” [Citations.]’

[Citation.]” (R.G., at p. 144.)

Senate Bill 1437 “redefined ‘malice’ in section 188. Now, to be convicted of

murder, a principal must act with malice aforethought; malice can no longer ‘be imputed

to a person based solely on [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)”

(R.G., supra, 35 Cal.App.5th at p. 144.) “Senate Bill 1437 also amended section 189,

which defines first and second degree murder, by, among other things, adding

subdivision (e). Under that subdivision, a participant in enumerated crimes is liable

under the felony-murder doctrine only if he or she was the actual killer; or, with the intent

to kill, aided and abetted the actual killer in commission of first degree murder; or was a

major participant in the underlying felony and acted with reckless indifference to human

life.” (People v. Munoz (2019) 39 Cal.App.5th 738, 749.)

Senate Bill 1437 also added section 1170.95, which states that “[a] person

convicted of felony 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

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murder conviction vacated and to be resentenced on any remaining counts.” (§ 1170.95,

subd. (a).) An offender may file a section 1170.95 petition if he or she was prosecuted

under a felony murder or natural and probable consequences theory, but under amended

sections 188 or 189, could not have been convicted of first or second degree murder.

(§ 1170.95, subd. (a).)

2. Process for Review of a Petition Under Section 1170.95

The trial court’s review of a petition under section 1170.95 occurs in several

phases. A petitioner must meet the standards of each before proceeding to an evidentiary

hearing on the full merits of the petition. First, the trial court determines whether the

petition is complete as defined in subdivision (b)—that is, whether it contains the

minimum necessary components the statute requires of a petition. If the petition is

facially adequate, the trial court next determines whether “the petitioner has made a

prima facie showing that the petitioner falls within the provisions of this section.”

(§ 1170.95, subd. (c).) If so, the trial court appoints counsel (if requested by the

petitioner), and may extend the briefing schedule set by the statute.4 The statutory

4 When petitioner is entitled to have counsel appointed is currently under review
by our Supreme Court. (People v. Verdugo (2020) 44 Cal.App.5th 320 (Verdugo),
review granted Mar. 18, 2020, S260493; People v. Lewis (2020) 43 Cal.App.5th 1128
(Lewis), review granted Mar. 18, 2020, S260598; People v. Cornelius (2020) 44
Cal.App.5th 54 (Cornelius), review granted Mar. 18, 2020, S260410.) However, pending
further guidance from our Supreme Court, we agree with Verdugo, Cornelius, and Lewis
and conclude that counsel need not be appointed until after a trial court concludes that the
petitioner has made a prima facie showing that he or she falls within the provisions of the
statute. (Verdugo, at pp. 332-333; Lewis, at p. 1140; Cornelius, at p. 58.) We also agree
with Lewis and Verdugo’s broader conclusion that 1170.95 is laid out in chronological
order, and that events under it proceed in the order they are enumerated in the statute.
(Lewis, at p. 1140; Verdugo, at p. 332.)

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deadlines require that the People file any opposition to the petition up to 60 days after the

petition was served, and the defendant may serve any reply up to 30 days after the

People’s opposition is served. (§ 1170.95, subd. (c).) After briefing, the court

determines whether the petitioner has stated a prima facie case that he or she is entitled to

relief. If so, the court must issue an order to show cause and hold a hearing to determine

whether to re-sentence the petitioner. (§ 1170.95, subds. (c)-(d).)

Section 1170.95, subdivision (c), thus requires the trial court to make two prima

facie assessments. “The first is whether the petitioner has made a prima facie showing of

eligibility for relief. A petitioner is eligible for relief if he or she makes a prima facie

showing of the three criteria listed in section 1170.95(a)—namely he or she (1) was

charged with murder ‘under a theory of felony murder or murder under the natural and

probable consequences doctrine,’ (2) was convicted of first or second degree murder, and

(3) can no longer be convicted of first or second degree murder ‘because of changes to

Section 188 or 189 made effective January 1, 2019.’ ” (People v. Drayton (2020) 47

Cal.App.5th 965, 975-976 (Drayton), italics omitted.) “If the trial court determines a

petitioner has made a prima facie showing of eligibility for relief, the court proceeds to

the ‘second’ inquiry into the prima facie showing under section 1170.95(c). [Citation.]

In this second step, the trial [court] considers whether the petitioner has made a prima

facie showing of entitlement to (rather than eligibility for) relief.” (Id. at p. 976, italics

omitted.) Only after these first two prima facie review phases are complete, and the court

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is satisfied that the petition is meritorious under these standards, does it then issue an

order to show cause and hold a hearing on the petition’s merits.

3. Defendant Stated a Prima Facie Case for Eligibility

Because the trial court in this case denied defendant’s petition before ordering

briefing, and arguably before appointing counsel, the record indicates that the trial court

denied the petition on the basis that defendant did not meet the first prima facie showing

of eligibility for relief. Had the trial court concluded that defendant made a prima facie

showing of eligibility for relief, it would have been required to provide defendant with

time to file formal briefing at a minimum. This did not happen. Thus, we review

whether the trial court erred in implicitly finding that defendant failed to state a prima

facie case that he fell within the provisions of the section.

The appropriate standard for review of the denial of a petition under

section 1170.95 is addressed in Drayton, supra, 47 Cal.App.5th at pp. 980-981. As that

case notes, “[a]ppellate review of petitions in similar context, such as Proposition 47,

typically involves multiple standards of review.” (Ibid.) In Proposition 47 cases, we

review the trial court’s decision under a mixed question of law and fact standard. Thus,

“ ‘[w]here an appeal involves the interpretation of a statute . . . , the issue on appeal is a

legal one, which we review de novo. Where the trial court applies disputed facts to such

a statute, we review the factual findings for substantial evidence and the application of

those facts to the statute de novo. [Citation.] “ ‘[A]n order is presumed correct; all

intendments are indulged in to support it on matters as to which the record is silent, and

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error must be affirmatively shown.’ ” [Citation.] In addition, we must “ ‘view the record

in the light most favorable to the trial court’s ruling.’ ” ’ ” (People v. Sledge (2017) 7

Cal.App.5th 1089, 1095-1096 (Sledge).)

Here, the trial court never acted as a factfinder. It simply reviewed the petition

and record of conviction to determine whether petitioner made a prima facie showing of

eligibility for relief. Therefore, we review the trial court’s determination that defendant

failed to make a prima facie showing of eligibility for relief de novo.

Next, we turn to what kind of review section 1170.95 requires. The statute does

not set out a precise standard for reviewing whether a petition states a prima facie case

that the petitioner falls within the provisions of the statute. However, given that this

review is statutorily distinct from the facial sufficiency required under section 1170.95,

subdivision (b), and the more substantive prima facie analysis under subdivision (c), we

can conclude that the relevant standard is somewhere between those two.

We conclude that reviewing a petition to determine whether it states a prima facie

case for statutory eligibility is analogous to a preliminary review of statutory eligibility

for resentencing under Propositions 36 and 47.5 Under both these types of review, the

petitioner must first “establish his or her initial eligibility for relief,” after which the

5 This was the conclusion our Second District colleagues reached in Verdugo,
supra, 44 Cal.App.5th at p. 329. This case is currently under review by our Supreme
Court, though the relevant analysis is not under review. (See People v. Lewis, S260598,
Supreme Ct. Mins., Mar. 18, 2020 [requesting briefing and argument only on whether
superior courts can “consider the record of conviction in determining whether a defendant
has made a prima facie showing of eligibility for relief” under section 1170.95 and when
the right to appointed counsel arises under the same].)

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prosecution gets the opportunity to show that the petitioner is ineligible for relief.

(Sledge, supra, 7 Cal.App.5th at p. 1094.) In both cases, an evidentiary hearing is not

necessary to resolve the question of eligibility for relief, but “ ‘[a]n evidentiary hearing is

required if . . . there is a reasonable likelihood that the petitioner may be entitled to relief

and the petitioner’s entitlement to relief depends on the resolution of an issue of fact.’ ”

(Id. at p. 1095, quoting California Rules of Court, rule 4.551(f).)

This procedure is very similar to the statutory procedure set out in

section 1170.95. All three require a trial court to preliminarily determine whether the

petition sets out a prima facie case of eligibility for relief, an opportunity for the parties to

dispute eligibility, and the opportunity for an evidentiary hearing if the court determines

that the petitioner has established a prima facie case that he or she is both eligible for and

entitled to relief.

When performing the preliminary review for statutory eligibility under

Propositions 36 and 47—and, analogously, under section 1170.95—the “ ‘court’s

role . . . 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.’ ” (People v. Torres (2020)

46 Cal.App.5th 1168, 1178 (Torres).) Thus, our review must be whether the trial court

erred in finding that defendant was not eligible for relief as a matter of law because he

was a major participant in the underlying felony.

In many cases, where a defendant is petitioning the court under section 1170.95,

there has been a prior true finding on a special circumstances allegation that defendant

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was a major participant and acted with reckless indifference to human life. (See, e.g.

People v. Smith (2020) 49 Cal.App.5th 85.) As our colleagues in the Second District

recently recognized, even such a true finding is not enough, on its own, to allow a trial

court to conclude a petitioner is not entitled to relief under section 1170.95 where the

finding occurred prior to our Supreme Court’s recent clarification of what those terms

mean. In Torres, supra, 46 Cal.App.5th at p. 1178 the trial court denied a petition under

section 1170.95 because “the existence of the jury’s 2001 robbery murder special

circumstance findings alone established that Torres was ‘a major participant in the

underlying felony and acted with reckless indifference to human life, as described in

subdivision (d) of Section 190.2’ [citation], as a matter of law, thereby barring him from

relief.” The court in Torres disagreed with the trial court’s holding. It found that

“[a]lthough the jury’s special circumstances findings rendered in 2001 indicate that the

jury concluded Torres was a ‘major participant’ who acted with ‘reckless indifference to

human life’ in the murders . . . , those jury findings alone do not preclude Torres from

showing today that he could not be convicted of first or second degree murder as

redefined by Senate Bill 1437.” (Torres, at p. 1179.) This conclusion is based upon the

fact that our Supreme Court has since narrowed the definition of what it means to be a

major participant or to act with reckless indifference to human life. (See People v. Banks

(2015) 61 Cal.4th 788; People v. Clark (2016) 63 Cal.4th 522; Torres, at p. 1179.)

Defendant has an even stronger argument for error here. In contrast to Torres, the

record in this case does not show that the jury made any findings regarding special

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circumstances against defendant. This means that there is nothing establishing that

defendant was a major participant as a matter of law at the time of his conviction, let

alone under the law as it exists now. It is true our review of defendant’s case on appeal

found that “if it weren’t for [defendant], this robbery and resulting murder never would

have occurred,” that “[defendant] was the only one of the three that had a motive to

victimize this particular gas station and individual[,] . . . was aware his companions were

armed,” and “[h]is acting as the station’s attendant allowed them the time and freedom

they needed to complete the crimes.” However, while this makes clear defendant has an

uphill battle arguing he was not a major participant, it is not legally conclusive and does

not mean defendant is ineligible for relief under section 1170.95 as a matter of law.

Accordingly, we conclude the trial court erred when it denied defendant’s petition

for failing to state a prima facie case he falls within the provisions of section 1170.95.6

Reviewing de novo, we find defendant met the three criteria necessary to establish a

prima facie case for eligibility under section 1170.95; that is, his petition alleges he was

charged with murder under a vicarious liability theory, he was convicted of first or

second degree murder, and he can no longer be convicted of first or second degree

murder. Taking these allegations as true, there is nothing in the record to establish that

defendant is not eligible for relief as a matter of law. Accordingly, we remand to the trial

court with directions to proceed to the second prima facie review phase, which requires

6Because we conclude that the trial court erred by denying defendant’s petition,
we do not address defendant’s arguments regarding procedural error.

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the trial court to appoint defense counsel and permit briefing from both parties and then

determine whether or not defendant is entitled to relief.

B. The Abstract of Judgment Must Be Amended

Next, defendant argues that the abstract of judgment incorrectly records that

defendant’s robbery conviction was for first degree, rather than second. He also points

out that the trial court stayed the sentence for his second degree robbery conviction, but

the abstracts of judgment from 1990 and 1991 say the sentence was for first degree

robbery. The People agree these errors should be corrected. We agree with the parties.

Defendant was charged and convicted of robbery, without a degree specified.

When the degree of the robbery is not specified, the crime is second degree robbery.

(People v. Anderson (1975) 50 Cal.App.3d 325, 327; § 1157.) The court imposed but

stayed a five-year term pursuant to section 654. However, amended abstracts of

judgment from 1990 and 1991 indicate that defendant was convicted of first degree

robbery, and is to serve the five-year term consecutively. That is incorrect.

Therefore, we exercise our independent authority and order the trial court to

correct the abstract of judgment to reflect that defendant’s robbery conviction was for

second degree robbery, and that the sentence was imposed but stayed.

IV. DISPOSITION

The order denying defendant’s petition to vacate his murder conviction and for

resentencing is reversed. The matter is remanded to the superior court with directions to

appoint defendant counsel, permit the People to file any opposition to defendant’s

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petition within 60 days of the trial court’s order, and permit defendant to file any reply to

the People’s opposition within 30 days after service of the People’s opposition. The trial

court must then consider whether defendant has made a prima facie case for entitlement

to relief. We also direct the trial court to correct the abstract of judgment to reflect that

defendant’s robbery conviction was for second degree robbery, and that the sentence was

imposed but stayed. The court is further ordered to forward a certified copy of the

corrected abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS
J.
We concur:

MILLER
Acting P. J.

RAPHAEL
J.

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