People v. Welch CA2/7

Filed 11/19/20 P. v. Welch CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B300338

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A799639-01)
v.

ANTHONY LEVELL WELCH,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Michael Garcia, Judge. Affirmed.
Jonathan E. Demson, 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, Supervising
Deputy Attorney General, Charles S. Lee and Ryan M. Smith,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
 Anthony Levell Welch, who pleaded no contest to
second degree murder in 1988, appeals from a postjudgment
order denying his petition for resentencing under Penal Code
section 1170.95.1 Without appointing counsel or holding an
evidentiary hearing, the superior court found Welch had failed to
make a prima facie showing of eligibility for relief. On appeal
Welch argues the court violated his statutory and constitutional
rights by summarily denying his petition without appointing
counsel and erred in finding he did not state a prima facie
showing of eligibility for relief. In People v. Verdugo (2020)
44 Cal.App.5th 320, review granted March 18, 2020, S260493
(Verdugo), we rejected Welch’s argument regarding the
procedures the superior court must follow once a section 1170.95
petition has been filed.2 We likewise reject Welch’s argument his
constitutional right to counsel was violated. As for the finding
Welch did not state a prima facie case of eligibility for relief, we
are troubled by the superior court’s failure to articulate the
reasons for its ruling and the lack of a record; however, because
any error is harmless in this case, we affirm.

1 Statutory references are to this code.
2 The Supreme Court in Verdugo ordered briefing deferred
pending its disposition of People v. Lewis (2020) 43 Cal.App.5th
1128, review granted March 18, 2020, S260598, in which briefing
and argument are limited 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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 PROCEDURAL BACKGROUND
In his petition for resentencing, filed March 7, 2019 on a
downloadable form (see Verdugo, supra, 44 Cal.App.5th at p. 324
& fn. 2), Welch declared by checking boxes that he had pleaded
guilty or no contest to first or second degree murder because he
believed he could have been convicted of murder pursuant to the
felony-murder rule or the natural and probable consequences
doctrine and could not now be convicted of murder because of
amendments to sections 188 and 189, effective January 1, 2019.
In a section of the form petition applicable only to petitioners who
had been convicted under the felony-murder rule, Welch checked
boxes stating he was not the actual killer; he did not with the
intent to kill aid or abet the actual killer; and he was not a major
participant in the felony or did not act with reckless indifference
to human life. Welch also checked the box stating he was
convicted of second degree murder under the natural and
probable consequences doctrine or under the second degree
felony-murder rule and he could not now be convicted of murder
because of changes to sections 188 and 189. Welch requested the
court appoint him counsel during the resentencing process.
The superior court denied Welch’s petition for resentencing
on July 5, 2019 outside the presence of Welch (for whom counsel
had not been appointed), the prosecutor or a court reporter.3 The
minute order for the court’s order states, “The court has read and

3 Section 1170.95, subdivision (b)(1), specifies the petition is
to be considered by the judge that originally sentenced the
petitioner, but, if that judge is not available, “the presiding judge
shall designate another judge to rule on the petition.”
Judge Robert T. Altman, who sentenced Welch in 1988, retired
from the superior court in 2000.

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considered the petition for resentencing pursuant to Penal Code
section 1170.95(A). [¶] Based on the evidence of the case, the
court finds the petitioner was the shooter in the murder
conviction; therefore, the petition is denied.”
DISCUSSION
1. Senate Bill No. 1437 and the Right To Petition To Vacate
Certain Prior Convictions for Murder
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, amended
the felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder through
amendments to sections 188 and 189. New section 188,
subdivision (a)(3), provides, “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.”
New section 189, subdivision (e), in turn, provides with
respect to a participant in the perpetration or attempted
perpetration of a felony listed in section 189, subdivision (a), in
which a death occurs—that is, as to those crimes that provide the
basis for the charge of first degree felony murder—that the
individual 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

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indifference to human life, as described in subdivision (d) of
Section 190.2.”
Senate Bill 1437 also permits, through new section 1170.95,
an individual convicted of felony murder or murder under a
natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime.4 After receiving a facially sufficient petition
(see § 1170.95, subd. (b)), section 1170.95, subdivision (c),
requires the sentencing court to review the petition; determine if
it makes a prima facie showing the petitioner falls within the
provisions of section 1170.95; and, if the petitioner has requested
counsel, to appoint counsel to represent the petitioner. After
counsel has been appointed, the prosecutor is to file and serve a

4 Section 1170.95, subdivision (a), states: “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 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. [¶] (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. [¶] (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.”

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response to the petition; and the petitioner may file a reply. If at
this point the court finds the petitioner has made a prima facie
showing he or she is entitled to relief, the court must issue an
order to show cause (§ 1170.95, subd. (c)) and conduct a hearing
to determine whether to vacate the murder conviction and
resentence the petitioner on any remaining counts (§ 1170.95,
subd. (d)(1)).5
2. Welch Was Not Entitled to Appointment of Counsel Prior
to the Court’s Preliminary Determination Whether He
Had Made a Prima Facie Showing of Eligibility for
Relief
a. Welch’s statutory argument lacks merit
In his opening brief, filed before our decision in Verdugo,
Welch contends, because he checked boxes on a preprinted form
declaring his conviction was based on a now improper theory, he
was entitled to counsel and an evidentiary hearing before the
court determined he did not fall within the provisions of
section 1170.95. We rejected that argument in Verdugo, supra,
44 Cal.App.5th 320.
Verdugo held, after determining the petition is facially
sufficient, the superior court may examine the readily available
portions of the record of conviction to determine whether the
petitioner has made a prima facie showing that he or she could
not be convicted of first or second degree murder following the

5 Once an evidentiary hearing has been ordered, the People
may present new and additional evidence to demonstrate the
petitioner is not entitled to resentencing. The petitioner also may
present new or additional evidence in support of the resentencing
request. (§ 1170.95, subd. (d)(3).)

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changes made to sections 188 and 189 and thus is eligible for
relief under section 1170.95. (Verdugo, supra, 44 Cal.App.5th at
pp. 329-330, 332.) If the petitioner’s ineligibility for resentencing
can be established at this stage as a matter of law by the petition
itself and the record of conviction, the petition may be summarily
denied without the appointment of counsel. (Id. at pp. 330, 332-
333; see also People v. Perez (2020) 54 Cal.App.5th 896; People v.
Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted
Mar. 18, 2020, S260598; but see People v. Cooper (2020)
54 Cal.App.5th 106, review granted Nov. 10, 2020, S264684.)
Accordingly, Welch was not entitled to appointment of counsel
prior to the court’s initial determination of his eligibility for
relief.
b. Welch’s constitutional argument lacks merit
Asserting the determination whether a petitioner has made
a prima facie showing he or she falls within the provisions of
section 1170.95 is a “critical stage” of a criminal proceeding,
Welch contends the superior court’s summary denial of his
petition violated his constitutional right to the assistance of
counsel. (See generally Marshall v. Rodgers (2013) 569 U.S. 58,
62 [“[i]t is beyond dispute that ‘[t]he Sixth Amendment
safeguards to an accused who faces incarceration the right to
counsel at all critical stages of the criminal process’”]; People v.
Doolin (2009) 45 Cal.4th 390, 453 [sentencing is a critical stage in
the criminal process within the meaning of the Sixth
Amendment].)
However, as the Supreme Court explained in People v.
Shipman (1965) 62 Cal.2d 226, 232, “Unless we make the filing of
adequately detailed factual allegations stating a prima facie case
a condition to appointing counsel, there would be no alternative

7
but to require the state to appoint counsel for every prisoner who
asserts that there may be some possible ground for challenging
his conviction. Neither the United States Constitution nor the
California Constitution compels that alternative.” Accordingly,
generally in postconviction proceedings, “in the absence of
adequate factual allegations stating a prima facie case, counsel
need not be appointed” to represent a petitioner in the trial court.
(Ibid.; accord, In re Clark (1993) 5 Cal.4th 750, 780 [“the
appointment of counsel is demanded by due process concerns” if a
postconviction “petition attacking the validity of a judgment
states a prima facie case leading to issuance of an order to show
cause”]; see People v. Rouse (2016) 245 Cal.App.4th 292, 298
(Rouse) [“The United States Supreme Court has declined to
extend the Sixth Amendment right to counsel to postconviction
proceedings. [Citation.] Federal courts have consistently ruled
that an incarcerated defendant has no constitutional right to
counsel with respect to statutory postconviction motions seeking
a reduction in sentence”]; see also Cal. Rules of Court,
rule 4.551(c)(1), (2) [following the filing of a petition for writ of
habeas corpus, the superior court must issue an order to show
cause if the petitioner has made a prima facie showing that he or
she is entitled to relief; “[o]n issuing an order to show cause, the
court must appoint counsel for any unrepresented petitioner who
desires but cannot afford counsel”].)
Welch’s reliance on Rouse, supra, 245 Cal.App.4th 292, a
case involving a petition for resentencing under section 1170.18,
subdivision (a) (Proposition 47), is misplaced. In Rouse our
colleagues in Division Eight of this court distinguished published
decisions that had concluded there was no right to counsel at the
initial eligibility stage of a petition under section 1170.18 (Rouse,

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at p. 299) and held, once the superior court had determined the
Proposition 47 petition was meritorious and the petitioner was
entitled to be resentenced, the resentencing hearing “is akin to a
plenary sentencing hearing” and properly characterized as a
“critical stage” in the criminal process to which the right to
counsel attaches. (Rouse, at pp. 299-300.)
People v. Fryhaat (2019) 35 Cal.App.5th 969, also relied
upon by Welch, is similar to Rouse and likewise provides no
support for his argument he had a constitutional right to
appointment of counsel simply upon the filing of a
section 1170.95 petition with the proper boxes checked. Fryhaat
involved section 1473.7, subdivision (a)(1), which permits an
individual no longer in custody to move to vacate his or her
conviction or sentence based on a lack of understanding of the
immigration consequences of a guilty plea. After construing the
statutory language to require a hearing and, arguably,
appointment of counsel for an indigent moving party, in order to
avoid a constitutional question the court of appeal held, “In light
of the fact writs of habeas corpus and writs of coram nobis, and
likely section 1016.5 motions to vacate, require court-appointed
counsel for an indigent petitioner or moving party who has
established a prima facie case for entitlement to relief, and given
a section 1473.7 motion was intended to fill the gap left by the
foregoing procedural avenues for relief, interpreting
section 1473.7 to also provide for court-appointed counsel where
an indigent moving party has adequately set forth factual
allegations stating a prima facie case for entitlement to relief
would best effectuate the legislative intent in enacting
section 1473.7.” (Fryhaat, at p. 983, fn. omitted.)

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 The scheme embraced as a matter of due process in Rouse
and adopted to avoid a constitutional issue in Fryhaat is precisely
the model created by section 1170.95. At the initial eligibility
stage, there is no right to appointed counsel. However, once the
court concludes it cannot determine the petitioner’s ineligibility
for relief as a matter of law, counsel must be appointed for those
petitioners who have requested it. (§ 1170.95, subd. (c).) Thus,
Welch was not entitled to appointment of counsel as a matter of
constitutional right prior to a finding whether he was ineligible
for relief.
3. The Superior Court Correctly Concluded Welch Is
Ineligible as a Matter of Law for Any Relief Under
Section 1170.95
As we explained in Verdugo, the superior court’s role in
conducting the first prima facie review of the petition “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.”
(Verdugo, supra, 44 Cal.App.5th at p. 329.) In undertaking this
review, the court should examine documents in the court file or
that are otherwise part of the record of conviction that are readily
ascertainable, which may include the complaint, information or
indictment, verdict form or factual basis documentation for a
negotiated plea, admissions as part of a guilty plea, jury
instructions, the abstract of judgment and the court of appeal
opinion, whether or not published. (Id. at pp. 329-330 & fn. 9,
333.)
Because the superior court is not authorized to make
factual findings during the first prima facie review, its decision is
a purely legal conclusion that we review de novo. (See People v.
Murillo (2020) 54 Cal.App.5th 160, 167.)

10
 As discussed, the superior court recited it had reviewed
“the evidence of the case” in concluding Welch was the actual
shooter; however, the court gives no indication what documents it
had reviewed or what information those documents contained.
Neither party has requested the record be supplemented or
augmented to include any documents from the court file or the
record of conviction.6 In the absence of anything in the record to
establish his ineligibility for relief as a matter of law, Welch
argues the declaration in the petition that he was not the actual
killer constitutes prima facie evidence of his eligibility for relief.
Generally, we would agree. Because we conduct a de novo review
of eligibility, the superior court’s conclusion alone does not
support a finding Welch is ineligible for relief. Without more, we
would reverse and direct the court to proceed with the next step
(appointment of counsel and request for briefing from the People
and Welch’s counsel) in determining whether Welch is entitled to
relief pursuant to section 1170.95, subdivision (c).
However, in this case the lack of a record supplied by the
parties has not prejudiced Welch because evidence he submitted
to this court in a prior proceeding establishes that Welch was
convicted pursuant to a negotiated plea agreement of committing
second degree murder with malice aforethought, not felony

6 In the respondent’s brief the Attorney General states it was
able to obtain several documents from the trial court file,
including the complaint, information, amended information,
abstract of judgment and numerous minute orders. However, the
Attorney General “is not asking this Court to take judicial notice
of these documents because they shed no light on the disputed
issue of whether appellant pleaded no contest to murder as the
shooter.”

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murder or murder under a natural and probable consequences
theory as required to be eligible for relief under section 1170.95,
subdivision (a).
On July 13, 2016 Welch filed a petition for writ of habeas
corpus in this court and attached the reporter’s transcript of the
April 12, 1988 hearing at which he had pleaded no contest to
second degree murder.7 During that hearing the superior court
explained to Welch that the People’s theory of the case was that
Welch shot the victim during the course of an attempted robbery,
which would be first degree felony murder. The court continued,
“Ordinarily second degree murder is not applicable to a felony
murder-type situation. But second degree murder is simply an
unlawful killing with what’s called malice aforethought in this
case, which is an intentional killing. Do you understand?” Welch
responded, “Yes, sir.”
Later during the hearing the court addressed defense
counsel and the prosecutor and noted that, although felony
murder did not require proof of malice, the information against
Welch included an allegation of malice. The court then stated,
“In this case the plea is to murder in the second degree which
does involve malice aforethought. So I don’t see any need to
amend the information. Is the information acceptable to both

7 We denied Welch’s petition on July 14, 2016. (In re Welch,
B276104.)
We augment the record on our own motion with the
April 12, 1988 transcript. (Cal. Rules of Court,
rule 8.155(a)(1)(B).) We provided the parties with copies of the
petition and exhibits and invited supplemental briefing to
address the significance of the plea hearing transcript.

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counsel as it now reads?” Both Welch’s counsel and the
prosecutor answered, “Yes, your honor.”
The prosecutor then took Welch’s plea of no contest to
second degree murder,8 entered pursuant to People v. West (1970)
3 Cal.3d 595 (West).9 The court asked counsel, “Join in the plea
and waivers and stipulate to a factual basis?” Both Welch’s
counsel and the prosecutor answered, “Yes, your honor.” The
trial court then found, “Defendant’s aware of the charge, the
elements, the allegations, the consequences of his plea, that he’s
knowingly and intelligently waived his constitutional rights,
freely and voluntarily entered into the plea and there is a factual
basis. Court finds a factual basis based on the stipulation of
counsel. Court is satisfied there is a factual basis based on the

8 A plea of no contest admits the elements of the crime, but
does not constitute an admission of any aggravating
circumstances. (People v. French (2008) 43 Cal.4th 36, 49; People
v. Learnard (2016) 4 Cal.App.5th 1117, 1122; see People v. West
(1970) 3 Cal.3d 595, 612 [“[a] defendant who knowingly and
voluntarily pleads guilty or nolo contendere can hardly claim that
he is unaware that he might be convicted of the offense to which
he pleads; his plea demonstrates that he not only knows of the
violation but is also prepared to admit each of the elements”].)
9 West allows a court to accept a plea of guilty or no contest
to an uncharged offense or an offense that is not necessarily
included in a charged offense notwithstanding the general rule
that, when a defendant pleads not guilty, the court lacks
jurisdiction to convict him or her of an offense that is neither
charged nor necessarily included in the alleged crime. (West,
supra, 3 Cal.3d at pp. 612-613.) In addition, a West plea “allows a
defendant to plead guilty in order to take advantage of a plea
bargain while still asserting his or innocence.” (People v. Rauen
(2011) 201 Cal.App.4th 421, 424.)

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stipulation, which in turn is based on the facts set out on the
record by the court.”10
Although the transcript from Welch’s habeas proceeding in
this court establishes as a matter of law that he is ineligible for
relief under section 1170.95, we caution that neither the superior
court nor the parties should assume this court will, as a matter of
course, seek out or consider documents from the underlying case
that were not reviewed by the superior court. The issue on
appeal is whether the superior court, on the record before it,
correctly ruled the petitioner was ineligible for resentencing as a
matter of law. Nonetheless, because the plea hearing transcript
is dispositive, reversal would be futile in this case and a waste of
judicial resources. (See People v. Lewis, supra, 43 Cal.App.5th at
p. 1138 [“‘[i]t would be a gross misuse of judicial resources to
require the issuance of an order to show cause or even

10 At oral argument Welch’s counsel asserted Welch was
eligible for relief, regardless of the crime to which he had actually
pleaded no contest, because the information allowed the
prosecutor to proceed under a theory of felony murder. That
argument ignores the plain language of the statute. That the
charging document encompassed a theory of felony murder or
murder under the natural and probable consequences doctrine is
a necessary condition to resentencing under section 1170.95
(§ 1170.95, subd. (a)(1)), but it is not sufficient. Section 1170.95,
subdivision (a), provides as the threshold requirement that only
individuals who were “convicted of felony murder or murder
under a natural and probable consequences theory may file a
petition” for relief under the statute. Because the record here
establishes Welch was convicted of second degree murder with
malice aforethought, he is ineligible for resentencing as a matter
of law even though a felony murder theory could have been
advanced at trial.

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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’”]; see generally People v.
Alvarez (1996) 14 Cal.4th 155, 216, fn. 21 [the general rule is that
reversal requires prejudice].)
DISPOSITION
The postjudgment order is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

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