Filed 2/18/21 P. v. Bonds CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B301521
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA271120)
v.
ANDREW LAMONT BONDS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, David V. Herriford, Judge. Affirmed.
Eric R. Larson, 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, Idan Ivri and Rene Judkiewicz,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________
A jury convicted Andrew Lamont Bonds in June 2005 of
second degree murder for fatally stabbing his housemate James
Boozer and found true allegations he had personally used
two dangerous or deadly weapons when committing the offense.1
On appeal Bonds, who did not dispute the finding he had killed
Boozer, argued the trial court had erred in failing to instruct the
jury sua sponte concerning the right to self-defense for one who
has initiated an assault (CALJIC Nos. 5.54, 5.56).2 We rejected
that contention, modified the sentence to stay one of the two
deadly weapon enhancements and affirmed the judgment as
modified. (People v. Bonds (Oct. 10, 2006, B184921) [nonpub.
opn.].)
In July 2019 Bonds, representing himself, petitioned for
resentencing pursuant to Penal Code section 1170.95.3 Without
appointing counsel or inviting briefing, the superior court denied
the petition, explaining the record established Bonds was not
entitled to relief because he was the actual killer of the victim
1 Bonds was sentenced to an aggregate indeterminate state
prison term of 16 years to life.
2 As summarized in our opinion on direct appeal, Bonds and
Boozer smoked crack cocaine and argued with each other for
several hours. Bonds eventually punched Boozer (an older and
smaller man), who hit his head on a table as he fell out of his
chair onto the floor. The two men then scuffled, and Boozer was
fatally stabbed in the chest with a steak knife. In police
interviews Bonds at times claimed he had stabbed Boozer in self-
defense, and at other times denied stabbing Boozer, either
intentionally or accidentally, suggesting he may have fallen on
the knife during their struggle.
3 Statutory references are to this code.
2
and the jury had not been instructed on a theory of felony murder
or the natural and probable consequences doctrine. We affirm.
PROCEDURAL BACKGROUND
Bond’s appointed counsel on February 14, 2020 filed a brief
pursuant to People v. Kelly (2006) 40 Cal.4th 106 and People v.
Wende (1979) 25 Cal.3d 436 stating his review of the record did
not disclose any arguable issues on appeal and a staff attorney at
the California Appellate Project, who had also reviewed the case,
agreed with that assessment. At the time the Wende brief was
filed, this court in People v. Verdugo (2020) 44 Cal.App.5th 320,
review granted March 18, 2020, S260493 (Verdugo) and
Division One of this district in People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598
(Lewis) had expressly approved the procedure used by the
superior court in summarily denying Bond’s petition; there was
no contrary court of appeal decision; and review had not yet been
granted in Verdugo and Lewis.
On June 29, 2020 we wrote counsel that we had identified
two arguable issues that should be briefed: “(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 section 1170.95? (2) When does the right to appointed
counsel arise under section 1170.95, subdivision (c)?”
We explained in our letter that, although those issues had
been addressed in Verdugo, and resolved consistently with the
superior court’s ruling in Bond’s case, the Supreme Court had
granted review in Verdugo and Lewis and directed the parties in
Lewis to brief those two questions. Accordingly, we believed
disposition of Bond’s appeal through the Wende procedure was
not appropriate.
3
In briefing subsequent to our June 29, 2020 letter, Bonds’s
counsel argued the superior court erred in summarily denying
Bonds’s petition prior to the appointment of counsel and receipt
of briefing by the parties, relying on the analysis of the court of
appeal in People v. Cooper (2020) 54 Cal.App.5th 106, review
granted November 10, 2020, S264684, and the dissenting justice
in People v. Tarkington (2020) 49 Cal.App.5th 892, 911-927
(dis. opn. of Lavin, J.), review granted August 12, 2020, S263219,
which disagreed with the holdings in Verdugo and Lewis that
section 1170.95, subdivision (c), authorized the superior court,
before appointing counsel for the petitioner, to review available
portions of the record of conviction to determine whether, as a
matter of law, the petitioner was ineligible for relief under
section 1170.95. The Attorney General urged us to adhere to our
Verdugo analysis and argued Bonds’s petition was properly
denied because the record of conviction demonstrated he was
convicted of murder as the actual killer of his victim, not under a
felony-murder theory or pursuant to the natural and probable
consequences doctrine.
DISCUSSION
1. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
As now described in a plethora of appellate decisions,
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015), effective January 1, 2019, significantly modified the
law relating to accomplice liability for murder. Section 188,
subdivision (a)(3), added by the legislation, eliminates the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder by providing, “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder,
4
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), limits
the felony-murder exception to the malice requirement,
permitting a murder conviction for a death that occurred during
the commission of certain serious felonies only when the
defendant was the actual killer, aided or abetted the underlying
felony with the intent to kill or was a major participant in the
felony and acted with reckless indifference to human life.
In addition, new section 1170.95 authorizes 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 No. 1437’s changes to the definition of the
crime. The petition must include a declaration by the petitioner
that he or she is eligible for relief under section 1170.95 and a
statement whether the petitioner requests the appointment of
counsel. (§ 1170.95, subd. (b)(1).)4
4 Section 1170.95, subdivision (b)(1), provides the judge who
originally sentenced the petitioner is to decide the petition for
resentencing unless that judge is not available. Bonds’s petition
was heard in the same department of the Clara Shortridge Foltz
Criminal Justice Center in which his trial occurred, but not by
Judge Stephen A. Marcus, who had presided at Bonds’s trial,
even though Judge Marcus is still actively hearing criminal cases
at that courthouse. Nothing in the record on appeal explains this
apparent procedural error, but neither party suggests it was
prejudicial. (See People v. Daniel (2020) 57 Cal.App.5th 666, 679
[finding petition’s denial by a judge other than the sentencing
judge was harmless error].)
5
What happens if the petition contains all the required
information is the focus of the disagreement between Lewis,
supra, 43 Cal.App.5th 1128, review granted, Verdugo, supra,
44 Cal.App.5th 320, review granted, and the many subsequent
cases that have agreed with their interpretation of
section 1170.95, subdivision (c),5 on the one hand, and People v.
Cooper, supra, 54 Cal.App.5th 106, review granted, on the other.
Section 1170.95, subdivision (c), provides, “The court shall
review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response . . . and the petitioner may file and
serve a reply. . . . If the petitioner makes a prima facie showing
that he or she is entitled to relief, the court shall issue an order to
show cause.”6
5 See, e.g., People v. Soto (2020) 51 Cal.App.5th 1043, 1054,
review granted September 23, 2020, S263939; People v. Drayton
(2020) 47 Cal.App.5th 965, 975; People v. Torres (2020)
46 Cal.App.5th 1168, 1177, review granted June 24, 2020,
S262011.
6 Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 230.)
The prosecutor and petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens. (See People v. Tarkington, supra,
6
In Verdugo we held subdivision (c) prescribes a two-step
process for the court to determine if an order to show cause
should issue: “one made before any briefing to determine whether
the petitioner has made a prima facie showing he or she falls
within section 1170.95—that is, that the petitioner may be
eligible for relief—and a second after briefing by both sides to
determine whether the petitioner has made a prima facie
showing he or she is entitled to relief.” (Verdugo, supra,
44 Cal.App.5th at p. 328, review granted.)
As to what the first of those two steps should accomplish,
we explained, “[B]ecause a petitioner is not eligible for relief
under section 1170.95 unless he or she was convicted of first or
second degree murder based on a charging document that
permitted the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine (§ 1170.95, subd. (a)(1), (2)), the court must at least
examine the complaint, information or indictment filed against
the petitioner; the verdict form or factual basis documentation for
a negotiated plea; and the abstract of judgment. Based on a
threshold review of these documents, the court can dismiss any
petition filed by an individual who was not actually convicted of
first or second degree murder. The record of conviction might
also include other information that establishes the petitioner is
ineligible for relief as a matter of law because he or she was
convicted on a ground that remains valid notwithstanding Senate
Bill [No.] 1437’s amendments to sections 188 and 189 . . . .”
(Verdugo, supra, 44 Cal.App.5th at pp. 329-330, review granted.)
A petitioner is entitled to appointment of counsel, we held, only if
49 Cal.App.5th at pp. 898-899, review granted; People v. Drayton,
supra, 47 Cal.App.5th at p. 981.)
7
the superior court does not determine he or she is ineligible for
relief as a matter of law at this first subdivision (c) prima facie
review. (Id. at p. 332; accord, Lewis, supra, 43 Cal.App.5th at
p. 1140, review granted.)
Division One of the First Appellate District in People v.
Cooper, supra, 54 Cal.App.5th 106, review granted, disagreed
that section 1170.95, subdivision (c), contemplates two separate
steps and held a petitioner is entitled to counsel upon the filing of
a facially sufficient petition for relief that requests counsel be
appointed. (Cooper, at p. 123.) In the Cooper court’s view,
section 1170.95, subdivision (c)’s first sentence is “a topic
sentence summarizing the trial court’s task before issuing an
order to show cause, and the following sentences . . . specify the
procedure in undertaking that task,” meaning there is only
one prima facie review before an order to show cause issues.
(Cooper, at p. 118.) Thus, once a petitioner files a facially
sufficient petition requesting counsel, the superior court must
appoint counsel before performing any review under
section 1170.95, subdivision (c). (Cooper, at p. 123.)
2. The Order Denying Bonds’s Petition Must Be Affirmed
Under the Analysis in Either Verdugo or Cooper
The court in People v. Cooper, supra, 54 Cal.App.5th at
page 123, review granted, held, although a petitioner has a
statutory right to counsel upon filing a facially sufficient
section 1170.95 petition, the violation of that right is not
structural error, and thus not reversible per se. As the same
panel that decided Cooper explained in People v. Daniel (2020)
57 Cal.App.5th 666, 675, denying a petitioner counsel prior to
issuing an order to show cause is “not ‘“analogous to” . . . “the
total deprivation of the right to counsel at trial.”’ [Citations.]
8
Rather, the failure to appoint counsel upon the filing of a facially
sufficient petition under section 1170.95 is susceptible to review
for prejudice. And harmlessness is established if the record
‘conclusively demonstrate[s] that [the petitioner] was ineligible
for relief as a matter of law.’”7 (Accord, People v. Law (2020) 48
Cal.App.5th 811, 826, review granted July 8, 2020, S262490 [any
error in failing to appoint counsel was harmless because
counsel would not have been able to demonstrate petitioner was
eligible for resentencing]; People v. Edwards (2020)
48 Cal.App.5th 666, 674, review granted July 8, 2020, S262481
[any error in failing to appoint counsel was harmless because
petitioner did not fall within the provisions of section 1170.95 as
a matter of law].)
Bonds does not dispute he was convicted of second degree
murder for fatally stabbing his roommate during a crack-fueled
fight. Thus, he was ineligible for relief under section 1170.95 as a
matter of law. Accordingly, however the Supreme Court resolves
the Verdugo/Cooper disagreement in People v. Lewis, S260598,
the order summarily denying Bonds’s petition without
appointment of counsel is properly affirmed. The superior court
used the procedure we approved in Verdugo, supra,
44 Cal.App.5th 320, review granted. And although it would be
considered error to have evaluated Bonds’s prima facie showing
7 The Daniel court held, to demonstrate prejudice, a
petitioner has the burden of establishing it is reasonably probable
that, if he or she had been afforded assistance of counsel, the
petition would not have been summarily denied without an
evidentiary hearing, the standard for state law error established
in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Daniel,
supra, 57 Cal.App.5th at p. 676.)
9
without appointment of counsel under People v. Cooper, supra,
54 Cal.App.5th 106, review granted, that error was harmless.
DISPOSITION
The order denying Bonds’s section 1170.95 petition is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
10