Filed 11/19/20 P. v. Clemons 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B300923
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA052497-01)
v.
RODNEY DARNELL
CLEMONS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Hector M. Guzman, Judge. Affirmed.
Lori A. Quick, 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, Michael Pulos, Deputy Attorney General, and Lynne G.
McGinnis and Nora S. Weyl, Deputy Attorneys General, for
Plaintiff and Respondent.
******
Rodney Darnell Clemons (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 July 23, 2002, Yannick Carraway (Carraway) got into a
fist fight with a woman because the woman’s husband—Andre
Fisher (Fisher)—got Carraway’s friend pregnant. When
Carraway lost the fist fight, she left the scene and picked up
defendant, who was her cousin. Carraway, defendant and others
returned to the scene of the first fight, where Carraway once
again got into—and once again lost—a second fist fight with the
woman. Incensed, Carraway told defendant, “I didn’t bring you
here to fight [Fisher] . . . Do what I brought you here to do. Kill
him.” When defendant pulled out a gun and started walking
toward Fisher’s front door, Carraway urged him on, “Do it
. . . Come on, come on, do it. You better do something.” When
Fisher came to the door, defendant shot Fisher four times.
Fisher died from the gunshot wounds.
B. Prosecution, conviction and appeal
The People charged defendant with Fisher’s murder (§ 187,
subd. (a)), and further alleged that he personally and
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2 We draw these facts from our prior, unpublished appellate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. Clemons
(Aug. 25, 2004, B169077) [nonpub. opn.].)
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intentionally discharged a firearm that proximately caused great
bodily injury or death within the meaning of section 12022.53,
subdivision (d).3 A jury found defendant guilty of second degree
murder and found true the firearm allegation.
The trial court sentenced defendant to prison for 40 years
to life.
Defendant appealed his conviction and we affirmed in an
unpublished opinion.
II. Procedural Background
On or about June 13, 2019, defendant filed a petition
seeking resentencing under section 1170.95.4 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 § 189, effective
January 1, 2019” (because, among other reasons, he “was not the
actual killer”). He also requested the appointment of counsel.
3 The People further alleged that defendant “personally
inflicted great bodily injury” upon Fisher (§ 12022.7, subd. (a)),
but the minute order reflecting the jury’s verdict does not speak
to the jury’s finding (or lack of finding) regarding this allegation.
The People also charged Carraway with murder, but the
jury hung on that count.
4 Defendant simultaneously filed a petition for a writ of
habeas corpus to dismiss the firearm enhancement pursuant to
Senate Bill 620. The trial court summarily denied that petition
on the ground that Senate Bill 620 did not apply to final
convictions. The propriety of that ruling is not before us.
3
On June 21, 2019, the trial court summarily denied
defendant’s petition. The court explained that defendant was
“not entitled to relief . . . under section 1170.95 as a matter of
law” because “[a] review of the court file”—and, specifically, the
jury’s “finding [that] . . . defendant intentionally and personally
discharged a firearm”—“reveals that defendant was the actual
killer.”
Defendant timely appealed this denial.
DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition. Because the trial court’s
rationale for summarily denying relief turns on questions of
statutory construction and the application of law to undisputed
facts, our review of the trial court’s ruling 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
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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
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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
two arguments.5
First, he argues that the trial court erred in not accepting
his allegation that he was “not the actual killer,” even though the
jury at his trial found that he was, because section 1170.95’s
plain language prohibits trial courts from summarily dismissing
petitions even if prior jury findings foreclose relief under section
1170.95 as a matter of law. In his reply brief, defendant adds
that section 1170.95’s legislative history supports his position
because our Legislature opted not to include language explicitly
authorizing summary denials despite a request made to the bill’s
author to include such language. In so arguing, defendant
acknowledges that he is asserting that Lewis, Verdugo, Cornelius,
5 Defendant also makes a third argument—namely, that the
trial court did not “cite to anything in the record of conviction
that could unequivocally contradict [defendant’s] allegations in
his petition” and thus impermissibly “drew its own conclusion[]”
from the record. This argument misstates the basis of the trial
court’s ruling because the trial court cited to the jury’s finding
(not its own) that defendant “intentionally and personally
discharged a firearm” causing death, and this jury finding
“unequivocally contradict[s]” defendant’s allegation that he was
not the actual killer.
6
Drayton, Edwards, Torres and Tarkington are all “incorrect[].”
These decisions have rejected every argument defendant now
advances, including his legislative history-based argument.
(Tarkington, supra, 49 Cal.App.5th at pp. 904-905.) 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.
Second, defendant argues that the trial court’s denial of his
petition without seeking further briefing from the parties or
appointing counsel for him violates due process because it (1)
contradicts section 1170.95’s text requiring those steps to be
taken once a defendant makes a prima facie showing for relief,
and (2) otherwise denies him the right to counsel he is
constitutionally guaranteed once he makes a prima facie showing
for post-conviction relief. We reject each of these arguments.
Although due process prohibits the arbitrary denial of procedures
mandated by state statutes (e.g., Hicks v. Oklahoma (1980) 447
U.S. 343, 344-346; Kentucky Dep’t of Corrections v. Thompson
(1989) 490 U.S. 454, 462), we have construed section 1170.95 not
to require further briefing or the appointment of counsel when
the record of conviction unequivocally demonstrates that
defendant is ineligible for relief notwithstanding his allegations
to the contrary. Thus, there is only a due process violation if our
construction of section 1170.95 is incorrect; unless and until the
Supreme Court tells us otherwise, we think our construction of
section 1170.95 is correct. Defendant’s right-to-counsel-based
argument fails for the same reason: Although a defendant is
entitled to the appointment of counsel when pursuing post-
conviction relief if he makes allegations supporting a prima facie
showing of entitlement to relief (see People v. Shipman (1965) 62
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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”]; People v. Fryhaat (2019) 35
Cal.App.5th 969, 979-981 [same]), a defendant whose allegations
are unequivocally foreclosed by the record of conviction has not
made that prima facie showing and is thus not entitled to
counsel. (Cf. People v. Rodriguez (1998) 17 Cal.4th 253, 256-258,
superseded on other grounds, § 1192.7 [defendant is entitled to
counsel after he has shown himself eligible for possible
resentencing].)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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