Filed 10/23/20 P. v. Torlucci CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B299582
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA126357)
v.
ARTHUR TORLUCCI,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert J. Perry, Judge. Affirmed.
Cynthia L. Barnes, 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, Scott A. Taryle, Deputy Attorney General, and
Idan Ivri, Deputy Attorney General, for Plaintiff and Respondent.
******
Arthur Torlucci (defendant) appeals the trial court’s
summary denial of his motion for relief under Penal Code section
1170.95.1 We conclude there was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
On January 14, 1996, Anthony Daniels (Daniels) was
leaning into the passenger-side window of defendant’s pick-up
truck. With the lower half of Daniels’s body hanging out of the
window, defendant drove off and, after more than a block of
swerving, smashed the passenger side of the truck against six
parked cars, crushing Daniels to death.
B. Prosecution, conviction and appeal
The People charged defendant with Daniels’s murder
(§ 187, subd. (a)), and further alleged that he personally used a
dangerous and deadly weapon (the truck) within the meaning of
section 12022, subdivision (b). A jury found defendant guilty of
second degree murder (§ 187) and found true the allegation that
he used a dangerous and deadly weapon in committing the
offense.
The trial court sentenced defendant to prison for 16 years
to life.
Defendant appealed his conviction and we affirmed in an
unpublished opinion.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction. (People v. Torlucci,
(Feb. 10, 1998, B108073) [nonpub. opn.].)
2
II. Procedural Background
On or about May 14, 2019, defendant filed a petition
seeking resentencing under section 1170.95.3 In the form
petition, defendant checked the boxes for the allegations that he
had been charged with murder, that he was convicted “pursuant
to the felony murder rule or the natural and probable
consequences doctrine,” and that his murder conviction would be
invalid under the “changes made to Penal Code §§ 188 and 189,
effective January 1, 2019.” He also requested the appointment of
counsel.
On May 31, 2019, the trial court summarily denied
defendant’s petition on two grounds. First, the court concluded
that defendant was “specifically excluded from sentencing relief
under” section 1170.95 because he was “the actual killer.”
Second, the court concluded that section 1170.95 was
unconstitutional because it (1) “impermissibly amended
. . . Proposition 7 and Proposition 115,” (2) “violate[s]” Marsy’s
Law, and (3) “violates the separation of powers.”
Defendant timely appealed this denial.4
3 Defendant filed an earlier petition for relief under section
1170.95 in Kern County on February 22, 2019, but the petition
was transferred to Los Angeles County and denied without
prejudice due to the insufficiency of the allegations.
4 A few weeks after defendant filed his Notice of Appeal, he
filed a third petition for relief under section 1170.95. The trial
court summarily denied it because defendant was “ineligible for
sentencing relief” “[a]s the actual killer.” As far as we know,
defendant has not appealed this order.
3
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition because both of the court’s
reasons for denying relief are incorrect. We can easily dispense
with the trial court’s second reason for summarily denying relief
because the People concede, and we agree, that the trial court
erred in declaring section 1170.95 unconstitutional. (E.g., People
v. Lopez (2020) 51 Cal.App.5th 589, 594, 600-602 [section 1170.95
does not impermissibly amend Propositions 7 or 115]; People v.
Johns (2020) 50 Cal.App.5th 46, 66-69 [section 1170.95 does not
violate Marsy’s Law or the separation of powers].) Because the
trial court’s first reason for summarily denying relief turns on
questions of statutory construction and the application of law to
undisputed facts, our review of that reason is de novo. (People v.
Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled
to the appointment of counsel, the opportunity for further
briefing and a hearing if, in his petition, he “makes a prima facie
showing that he . . . is entitled to relief” under that section.
(§ 1170.95, subds. (c) & (d); People v. Lewis (2020) 43 Cal.App.5th
1128, 1139-1140, review granted Mar. 18, 2020, S260598 (Lewis);
People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted
Mar. 18, 2020, S260493 (Verdugo).) A person is entitled to relief
under section 1170.95 if, as relevant here, (1) “[a] complaint,
information, or indictment was filed against [him] that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine,”
(2) he “was convicted of . . . second degree murder following a
trial,” and (3) he “could not be convicted of first or second degree
4
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).) A person may be
convicted of murder, even after the 2019 changes to sections 188
and 189, if he “was the actual killer.” (§ 189, subd. (e)(1).) A
“‘prima facie showing is one that is sufficient to support the
position of the party in question.’” (Lewis, at p. 1137, quoting
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)
Where a defendant in his petition alleges each element
necessary to make out a prima facie case for relief under section
1170.95, a trial court evaluating whether a defendant has made a
prima facie showing in a section 1170.95 petition is not required
to accept those allegations at face value and may also examine
the record of conviction. (Lewis, supra, 43 Cal.App.5th at p. 1138;
Verdugo, supra, 44 Cal.App.5th at pp. 329-330; People v.
Tarkington (2020) 49 Cal.App.5th 892, 899-900, 908-909, review
granted Aug. 12, 2020, S263219 (Tarkington); People v. Drayton
(2020) 47 Cal.App.5th 965, 968 (Drayton); People v. Edwards
(2020) 48 Cal.App.5th 666, 673-674, review granted July 8, 2020,
S262481 (Edwards); People v. Torres (2020) 46 Cal.App.5th 1168,
1178, review granted June 24, 2020, S262011 (Torres).) However,
the contents of the record of conviction defeat a defendant’s prima
facie showing only when the record “show[s] as a matter of law
that the petitioner is not eligible for relief.” (Lewis, at p. 1138,
italics added; Verdugo, at p. 333; Torres, at p. 1177; Drayton, at p.
968; see also People v. Cornelius (2020) 44 Cal.App.5th 54, 58,
review granted Mar. 18, 2020, S260410 (Cornelius) [record must
show defendant is “indisputably ineligible for relief”].)
Here, the trial court correctly concluded that defendant did
not make out a prima facie case for relief because the record of
conviction establishes, as a matter of law, that he is not eligible
5
for relief. That is because the jury found defendant guilty of
second degree murder, and further found true that defendant
personally used a dangerous or deadly weapon in committing the
offense. The jury’s findings of fact necessarily label defendant as
the “actual killer” and hence ineligible for relief under section
1170.95. (E.g., Cornelius, supra, 44 Cal.App.5th at p. 58 [so
holding]; Tarkington, supra, 49 Cal.App.5th at pp. 899, 910
[same].)
Defendant resists this conclusion with what boil down to
three arguments.
First, he argues that the trial court erred in “going beyond
the face of [his] petition” and by relying on the “factual summary
contained” in our prior appellate opinion because the prior
appellate opinion improperly viewed the facts in the light most
favorable to the murder conviction. For support, he cites the
dissenting opinion in Tarkington, supra, 49 Cal.App.5th at pp.
911-927 (dis. opn. of Lavin, J.). In so arguing, defendant is
effectively asserting that Lewis, Verdugo, Cornelius, Drayton,
Edwards, Torres and Tarkington are “wrongly decided.”
Although our Supreme Court has granted review in Lewis,
Verdugo, Cornelius, Edwards, Torres and Tarkington, we
continue to find them persuasive unless and until the Supreme
Court rules otherwise. The dissent in Tarkington is just that—a
dissent—and one we do not find to be persuasive. (People v.
Lopez (2012) 55 Cal.4th 569, 585 [“dissenting opinions are not
binding precedent.”].)
Second, defendant more narrowly contends that, even if a
trial court may consider some parts of the record of conviction in
evaluating eligibility for relief under section 1170.95, it may not
consider the facts set forth in a prior appellate decision. We need
6
not confront the totality of this argument because the summary
denial of defendant’s section 1170.95 petition in this case rests
not on the facts regarding the offense that are recited in the prior
appellate decision, but rather on the facts setting forth the jury’s
findings recited in that decision—namely, the fact that the jury
found defendant guilty of second degree murder and found true
that defendant had personally “used a deadly weapon in
committing the offense.” Those latter facts are a proper subject of
judicial notice as an “accurate[]” “reflect[ion]” of what is in “the
trial record” and are properly admitted for “the nonhearsay
purpose of determining the basis of the conviction.” (People v.
Woodell (1998) 17 Cal.4th 448, 456-457, 459-461; Lockley v. Law
Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 885 [“an appellate opinion can be admitted to
prove that . . . the court made orders, factual findings, judgments
and conclusions of law.”]; People v. Franklin (2016) 63 Cal.4th
261, 280 [same]; Kilroy v. State of California (2004) 119
Cal.App.4th 140, 147 [“findings of fact” may be judicially noticed];
Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565 [“it may be
proper to take judicial notice that [a trial judge] did in fact make
[a] particular finding” of fact “after hearing a factual dispute”],
italics omitted.)
Lastly, defendant argues that he has a statutory and
constitutional right to the appointment of counsel that precludes
summary denial of his section 1170.95 petition. The law is to the
contrary. (See People v. Shipman (1965) 62 Cal.2d 226,
232 [“in the absence of adequate factual allegations stating a
prima facie case, counsel need not be appointed either in the trial
court or on appeal from a summary denial of [post-conviction]
relief in that court”]; Pa. v. Finley (1987) 481 U.S. 551, 555 (plur.
7
opn. of Rehnquist, J.) [“the [constitutional] right to appointed
counsel extends to the first appeal of right, and no further”];
accord, Dillon v. United States (2010) 560 U.S. 817,
828 [legislative acts granting post-conviction relief do not
implicate the Sixth Amendment right to a jury].) Defendant cites
People v. Rouse (2016) 245 Cal.App.4th 292, but Rouse held that a
defendant has a right to counsel in the post-conviction context
once he has been found eligible for resentencing (id. at pp. 299-
300). Rouse went out of its way to preserve prior decisions
holding that a defendant is not entitled to counsel during the
“initial eligibility stage” of a petition for post-conviction relief
(ibid.), and defendant’s section 1170.95 petition was denied on
eligibility grounds.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P.J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
8