People v. Davis CA2/5

Filed 2/11/21 P. v. Davis CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE

THE PEOPLE, B302994

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA072997)
v.

CLYDE KEITH DAVIS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, William C. Ryan, Judge. Reversed and
remanded with directions.

Alex Coolman, 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, Idan Ivri and Wyatt E. Bloomfield, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
 Defendant Clyde Davis appeals the denial of his petition for
resentencing under Penal Code section 1170.95, arguing that his
court-appointed attorney was so ineffective as to constitute the
denial of counsel entirely.1 The Attorney General responds that
the trial court was justified in denying defendant’s petition as a
matter of law, without the appointment of counsel, so any
inadequacies in counsel’s performance were necessarily non-
prejudicial. We conclude defendant’s petition could not have been
denied as a matter of law; he should have been granted a
hearing, with counsel, on the issue of whether he was entitled to
relief under the statute. As the trial court denied the petition
without a hearing, we reverse. Given the error in the trial court’s
procedure, it is unnecessary for us to determine whether
counsel’s deficient performance was additionally prejudicial.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Crime, Conviction and Appeal2
“Defendant and his codefendant Keith Gatson chased Joy
Michelle Magdaleno, the decedent, with a gun, took her necklace,

1 Appellant’s current appellate counsel did not represent
defendant at the section 1170.95 hearing. All undesignated
statutory references are to the Penal Code.

2 Our discussion of the underlying facts is taken from the
opinion affirming defendant’s conviction, which was attached as
an exhibit to the prosecution’s opposition to defendant’s 1170.95
petition. (People v. Davis (Nov. 30, 1998, B113765) [nonpub.
opn.].) In its respondent’s brief in the current appeal, the
Attorney General includes a number of citations to the record
from that appeal, noting, however, that it was “unable to locate
the clerk’s transcript and several volumes of the reporter’s
transcripts from the original appeal,” but was copying the
citations from the respondent’s brief in that appeal. The

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struggled with her, and pinned her to the ground. Mr. Gatson
then shot her in the head and shoulder and took her purse from
her automobile before fleeing in defendant’s car. During the
decedent’s subsequent hospitalization and prior to her death on
December 19, 1992, she told her brother, mother, and father on
various occasions that defendant and Mr. Gatson had kicked,
beat, robbed, and shot her.”3 “At the time Mr. Gatson shot the
decedent, defendant was approximately 18 inches away.” An
eyewitness observed both defendant and Gatson holding her
down before she was shot. Defendant sold decedent’s bracelet at
a pawn shop five days later.
Defendant was convicted of first degree murder (§ 187) with
the felony-murder special circumstance (§ 190.2, subd. (a)(17)(A)),

Attorney General filed a request for judicial notice of this court’s
record in the prior appeal. We denied the request without
prejudice, explaining that our file “has been discarded,” and
indicating that the Attorney General may renew its request if
specific documents are located and attached to the request. No
renewed request was forthcoming. Thus, to the extent the
Attorney General’s brief includes citations to the record at
defendant’s trial, as opposed to the prior appellate opinion or any
other document which was part of the record before the trial
court in the section 1170.95 proceeding, it is unsupported.

3 The prior opinion does not contain a separate statement of
the facts, but instead discusses the facts only as relevant to each
issue raised by defendant. For this reason, a complete
understanding of the facts is elusive. It is only in the opinion’s
discussion of a hearsay issue that we learn that defendant was
not unknown to the decedent, but was in fact “ ‘her mother’s
boyfriend.’ ”

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and robbery (§ 211).4 On appeal, defendant challenged, among
other things, the sufficiency of the evidence that he had aided
and abetted a willful, deliberate, and premeditated murder. A
prior panel of this appellate division rejected this argument, both
on the merits and because the “contention is irrelevant because
there was substantial evidence of [defendant’s] liability on a
felony murder theory.” The appellate court also found there was
sufficient evidence supporting the robbery-murder special
circumstance. The court stated, “We agree with the Attorney
General that it is reasonable to presume that the jury found
beyond a reasonable doubt that defendant, either with the intent
to kill or with reckless indifference to human life and as a major
participant in the crime, [aided and abetted] Mr. Gatson in the
commission of the robbery which resulted in the death of the
decedent.”
2. Defendant’s Section 1170.95 Petition
Senate Bill No. 1437 (SB 1437) invalidated the natural and
probable consequences doctrine as it relates to murder, and
narrowed liability for felony murder. (People v. Verdugo (2020)
44 Cal.App.5th 320, 323 (Verdugo) review granted Mar. 18, 2020,
S260493.) As relevant to our purposes, a defendant may no
longer be convicted of felony murder unless he was (1) the actual
killer, (2) a direct aider and abettor, or (3) a major participant in
the crime who acted with reckless indifference to human life, as
defined in the felony murder special circumstance. (§ 189,
subd. (e).)

4 The jury also found true that a principal was armed with a
firearm. (§ 12022, subd. (a)(1).)

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 SB 1437 also enacted section 1170.95, providing a means by
which a defendant convicted of murder under prior authority
could seek resentencing under the new version of the law.
On March 17, 2019, defendant filed a form petition for
resentencing under section 1170.95.5 He requested counsel.
The trial court appointed counsel to represent defendant
“for the sole purpose of litigating the instant petition for
resentencing.” The court set a briefing schedule, but did not set
the matter for hearing.
3. The Prosecution’s Opposition
On July 24, 2019, the prosecution filed an opposition to the
petition. It argued, at length, that section 1170.95 was
unconstitutional. The prosecution also argued that defendant
was not entitled to relief because the jury found the felony-
murder special circumstance to be true.
4. The Three Replies Filed By Defendant’s Appointed
Counsel
Defendant’s counsel simultaneously filed three replies. The
first argued the constitutionality of section 1170.95. The other
two replies, which were designed to apply the law to the facts of
defendant’s case, failed in that effort.

5 Defendant did not check all necessary boxes in the petition
which would entitle him to relief. This omission alone would
have justified the trial court in denying the petition on the basis
that defendant did not assert the elements necessary for relief.
(People v. Nunez (2020) 57 Cal.App.5th 78, [271 Cal.Rptr.3d 191,
198] review granted Jan. 13, 2021, S265918.) Here, the trial
court overlooked the omission. The Attorney General does not
suggest we should affirm based on any inadequacies in
defendant’s petition; we, like the trial court, choose to proceed.

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 One document was entitled defendant’s “Reply.”6 The
document was clearly an incomplete, unproofread draft.7 The
first argument in the Reply, which took up 10 pages, was based
on the premise that defendant was convicted on the natural and
probable consequences theory, although, in this particular case,
defendant was not. The argument included a subsection entitled,
“The Prosecution Argued And The Court Instructed On The
Murder Theory Of Natural And Probable Consequences.”
Headings were left for “Statement of The Case” and “Statement
of Facts” with no content beneath them. A later heading for
“Excerpts From The Court Of Appeal Decision” promises a
relevant quote from the appellate opinion. A blank section
follows. There are sections devoted to the trial court’s purported
instruction on natural and probable consequences and the
prosecutor’s argument on the theory, directing the reader that
the relevant instruction and transcript excerpts are attached as
exhibits – but there are no exhibits, and these representations do
not apply to this case. To the extent the Reply acknowledges that
the prosecutor argued felony murder at trial, the promised
transcript excerpts are not present, and there is no indication

6 The Reply had a signature line for counsel, but was
unsigned.

7 It contained text directing “Kathy” to add a particular
footnote. It also included an apparent drafter’s note, suggesting
that if the prosecution made a particular argument, then “THE
TWO PARAGRAPHS BELOW MIGHT PROVE HELPFUL.”

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that the Reply’s representations as to the nature of that
argument properly describe this case.8
The Reply does, to a limited degree, address the People’s
argument that the true finding on the felony murder special
circumstance renders defendant ineligible for relief. The Reply
points out that defendant was convicted prior to the opinions in
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark), which clarified the law of
aider and abettor liability for the felony murder special
circumstance, more narrowly construing “major participant” and
“reckless indifference” to satisfy constitutional minimums. The
Reply discusses Banks, Clark and their progeny in the abstract
for several pages. However, when it comes time to apply the law
to the facts of this case, the Reply is again disconnected to this
defendant. It refers instead to a defendant named “Winzer,”
whose crime was apparently part of “a spontaneous response by
15 to 20 people in the parking lot of a liquor store.”
The third document filed on defendant’s behalf was a
“points and authorities re[garding] implied malice murder theory
and Penal Code, section 1170.95.” (Capitalization omitted.) This
brief, also divorced from the facts in this action, appears to have
been crafted in response to an argument made in another case,

8 The Reply represents that the prosecutor gave little
emphasis to felony murder as compared to natural and probable
consequences and “did not say one word about special
circumstance murder, i.e. what it means or how it applied to the
evidence in this case etc. in his closing argument or in rebuttal.”
We observe that this Court’s prior opinion does address felony
murder and is silent on the natural and probable consequences
theory of murder.

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not in this one, suggesting the prosecution could raise, for the
first time the theory of implied malice murder.
In short, while defendant’s appointed counsel submitted a
reasonable brief on the constitutionality of section 1170.95, and a
viable legal discussion of Banks and Clark, counsel did not
address the facts of this case at all, and apparently submitted
briefing prepared in other cases, without making any attempt to
adapt those briefs to support appellant’s petition for
resentencing.
Counsel was not given an opportunity to explain what had
happened or to correct the defective briefs, because the trial court
held no hearing on defendant’s section 1170.95 petition.
5. The Trial Court’s Ruling
On November 6, 2019, the trial court issued its
memorandum of decision denying defendant’s petition.9
Preliminarily, the court found section 1170.95
constitutional. The trial court then reviewed the record of
conviction to determine whether defendant had established a
prima facie showing that he was entitled to relief. The court
concluded that he had not, because defendant had been a major
participant in the crime who had acted with reckless indifference.
The court first relied on the prior appellate opinion finding
sufficient evidence to support the felony murder special
circumstance. Second, the court conducted its own review of the
evidence to conclude that, even in light of the intervening
opinions in Banks and Clark, defendant was, in fact, a major
participant acting with reckless indifference. Based on a review

9 In a footnote in its ruling, the court identified many of the
flaws it found in the three documents that defense counsel filed
on defendant’s behalf.

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of this court’s prior opinion and the court’s review of the evidence,
the court denied the petition.
Defendant filed a timely notice of appeal.
DISCUSSION
Once a section 1170.95 petition is filed, there follows a
multi-step process by which the court first 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 (Torres) review granted June 24, 2020,
S296179; Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) The
materials which the court can review at this stage include the
prior appellate opinion (People v. Lee (2020) 49 Cal.App.5th 254,
263, review granted July 15, 2020, S262459; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1136, fn. 7, review granted Mar. 18,
2020, S260598) and the jury instructions given in the defendant’s
trial. (People v. Edwards (2020) 48 Cal.App.5th 666, 674, review
granted July 8, 2020, S262481.) If the court determines the
petitioner is ineligible for relief as a matter of law, the petition is
denied at this first stage; if not, the court proceeds to the next
step. (Torres, at pp. 1177-1178.)
At the second stage, the court must appoint counsel for the
defendant, if requested, and permit briefing on the issue of the
defendant’s entitlement to relief under the statute. (Verdugo,
supra, 44 Cal.5th at p. 330.) The defendant has the burden of
making a prima facie showing that he is entitled to relief, and the
parties may rely on evidence outside the record. (§ 1170.95,
subds. (c) & (d)(3).)
Here the trial court appointed counsel but held no hearing.
On appeal, the Attorney General would have us interpret this as,

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in effect, a denial at the initial, prima facie, stage – where the
appointment of counsel is unnecessary and the court may deny
the petition if the defendant is not eligible for relief as a matter of
law.
Here, the trial court’s analysis went beyond the permissible
analysis at the prima facie stage. The trial court found that
defendant was ineligible for relief because he was a major
participant who acted with reckless indifference. The court
rested its holding on two bases: the felony-murder special
circumstance that was upheld on direct appeal; and its own
analysis of the facts as establishing those elements.
As to the first, we have held that a felony murder special
circumstance which predates Banks and Clark is an insufficient
basis on which a trial court may deny a petition for relief at the
first stage, which determines only if the defendant is ineligible
for relief as a matter of law.10 (Torres, supra, 46 Cal.App.5th at
p. 1179.)

10 A number of recent cases have disagreed with Torres, and
held that a pre-Banks/Clark special circumstance is a sufficient
basis on which to conclude a defendant is ineligible for relief
under section 1170.95, suggesting that the proper procedure for
the defendant to raise Banks and Clark is via a habeas petition.
(E.g., People v. Galvan (2020) 52 Cal.App.5th 1134, review
granted Oct. 14, 2020, S264284; see also People v. Nunez, supra,
57 Cal.App.5th 78; People v. Jones (2020) 56 Cal.App.5th 474,
478-479, review granted Jan. 27, 2021, S265854; People v. Allison
(2020) 55 Cal.App.5th 449, 452-453.) On appeal, the Attorney
General cites to these cases and argues against Torres. We have
already addressed and disagreed with Galvan’s analysis, (People
v. York (2020) 54 Cal.App.5th 250, 260-263, review granted
Nov. 18, 2020), and adhere to the rule expressed in Torres.

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 As to the second ground for the trial court’s denial, we have
held that the determination of whether a defendant was a major
participant acting with reckless indifference within the meaning
of Banks and Clark is a factual determination which cannot be
conducted at this stage as a matter of law by simply reviewing
the existing record. (People v. Smith (2020) 49 Cal.App.5th 85,
95, review granted July 22, 2020, S262835; contra People v. Law
(2020) 48 Cal.App.5th 811, 816, 822, review granted July 8, 2020,
S262490.) This is so because the factual record “is not the only
consideration the trial court must take into account for purposes
of section 1170.95. Where the record of conviction does not
preclude a petitioner from making a prima facie showing that he
falls within the statute’s provisions as a matter of law, the
petitioner is not confined to presenting evidence contained in the
record of conviction in seeking relief.” (Smith, supra,
49 Cal.App.5th at p. 95.)
Thus, the trial court’s factual determination that defendant
was a major participant acting with reckless indifference was
premature. Defendant was entitled to the appointment of
counsel, and a hearing at which his counsel could have presented
evidence outside the existing record. Although the trial court
appointed counsel, it did not hold a hearing. For this reason, and
apart from the obvious failings in the submissions of appointed
counsel, we must reverse.11

11 On appeal, defendant does not argue that his appointed
counsel rendered prejudicial ineffective assistance; he argues that
his appointed counsel was so ineffectual as to constitute a
deprivation of counsel, such that he is entitled to automatic
reversal regardless of prejudice. (United States v. Cronic (1984)
466 U.S. 648, 659.) Whether prejudice or structural error is the
proper standard involves considerations of the Sixth Amendment

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 While defendant may not ultimately be entitled to relief
and his counsel did not identify any new evidence he would
present at an order to show cause hearing, the record as it
currently stands – in which defendant’s felony-murder special
circumstance finding was not necessarily sufficient under the
current law – establishes a prima facie showing of entitlement to
relief that requires issuance of, and hearing on, an order to show
cause (§ 1170.95, subds. (c) & (d)(1)).
DISPOSITION
The order denying defendant’s petition for resentencing
under section 1170.95 is reversed. The matter is remanded for
the court to issue an order to show cause and hold a hearing on
whether defendant’s murder conviction should be vacated.

RUBIN, P. J.
WE CONCUR:

BAKER, J.

KIM, J.

right to counsel and the statutory right to counsel created by
section 1170.95. We do not need to resolve the issue. As we have
stated, we do not rely on ineffective assistance of counsel or a de
facto absence of counsel in reversing the trial court’s order.

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