Filed 2/11/21 P. v. Caldwell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B299017
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA001856)
v.
CORNELIUS CALDWELL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mildred Escobedo, Judge. Reversed and
remanded.
James Koester, 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, Senior
Assistant Attorney General, Kristen J. Inberg and Nathan
Guttman, Deputy Attorneys General, for Plaintiff and
Respondent.
Penal Code section 1170.95 (section 1170.95) permits
resentencing defendants convicted of felony murder or natural
and probable consequences murder, but not defendants who (with
malice aforethought) are a murder victim’s “actual killer.”
(People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted
Mar. 18, 2020, S260410.) We consider whether the trial court
correctly concluded defendant Cornelius Caldwell (defendant)
was ineligible for section 1170.95 relief because he is an actual
killer.
In 1989, the Los Angeles County District Attorney charged
defendant with “willfully, unlawfully, and with malice
aforethought murder[ing] Jane Doe, aka Charlisa Carlyn Clark, a
human being.” The information further alleged defendant
“personally used a deadly and dangerous weapon[ ], to wit, [a]
strangulation rope . . . .” According to testimony at defendant’s
preliminary hearing, defendant’s then-girlfriend was found
strangled to death by a dumpster and defendant told an
acquaintance (who saw the dead body before it was moved to the
dumpster area) that “things just got out of hand” and he needed
to find a place to hide the body.
Defendant pled no contest to second degree murder. There
is no indication defendant admitted the personal use of a deadly
or dangerous weapon allegation. When prompted by the trial
court during the plea colloquy, defendant’s attorney stipulated
there was a factual basis for the plea, but there was no
elaboration as to what that factual basis was. In June 1990, the
trial court sentenced defendant to 15 years to life in prison.
Nearly 20 years later, defendant filed a section 1170.95
petition to vacate his murder conviction. Defendant completed a
form petition by hand, checking boxes to request appointment of
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counsel and to assert he pled no contest because he believed he
could have been convicted of murder at trial pursuant to the
felony murder rule or the natural and probable consequences
doctrine.
The trial court reviewed defendant’s petition and denied it
without appointing counsel. The court found defendant was
ineligible for relief because he was “the actual killer.” Defendant
noticed an appeal from the denial.
We hold the trial court erred in denying defendant’s section
1170.95 petition without first appointing counsel because the
record of the plea colloquy does not establish, as a matter of law,
that defendant’s murder conviction rests on his guilt as the
actual killer. Defendant’s attorney stipulated there was a factual
basis for his no contest plea, but there was no specification of
what that factual basis was—or even the source of it (e.g., a
police report). Without an admitted factual basis, we cannot say
defendant is ineligible for relief as a matter of law; it is possible
his decision to plead guilty may have, for instance, rested on his
assessment of criminal liability on a natural and probable
consequences theory of murder. To be sure, we do have
defendant’s preliminary hearing transcript in the appellate
record, but a court confronted with a section 1170.95 petition may
not rely solely on a preliminary hearing transcript at the initial
prima facie stage—where a finding of ineligibility as a matter of
law is required—before counsel is appointed. (See, e.g., People v.
Perez (2020) 54 Cal.App.5th 896, 905-906 [trial court may
consider preliminary hearing testimony in determining—as part
of its second stage prima facie review under section 1170.95,
subdivision (c)—whether the petitioner has made a prima facie
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showing he or she is entitled to relief and an order to show cause
should issue].)
Reversal is therefore required, but on remand, the trial
court may revisit the issue of whether defendant is ineligible as
the actual killer after appointing counsel for defendant and
considering the submissions contemplated by section 1170.95,
subdivision (c).
DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed and the cause is remanded for further proceedings
consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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