Filed 2/25/21 P. v. Fryklind CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077856
Plaintiff and Respondent,
v. (Super. Ct. No. SCD220343)
PAUL J. FRYKLIND,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Howard H. Shore, Judge. Reversed and remanded with directions.
Erica Gambale, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney
General, Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General,
for Plaintiff and Respondent.
In October 2010, a jury convicted Paul J. Fryklind of second degree
murder (Pen. Code,1 § 187, subd. (a); count 1). The jury also found true a
1 All further statutory references are to the Penal Code.
firearm enhancement alleging a principal in the offense used a firearm and
proximately caused death or great bodily harm (§ 12022.53, subds. (d), (e)(1)).
The jury also convicted Fryklind of assault with a semiautomatic firearm
(§ 245, subd. (b); counts 3 and 4). The court sentenced Fryklind to an
indeterminate term of 40 years to life plus 14 years eight months.
Fryklind appealed and this court affirmed the judgment in an
unpublished opinion. (People v. Fryklind (Nov. 21, 2012, D058714) [nonpub.
opn.].)
In 2019, Fryklind filed a petition for resentencing under
section 1170.95. The court appointed counsel and received briefing from both
parties. The court reviewed the record on appeal and concluded that
Fryklind had not established a prima facie case for relief under
section 1170.95.
Fryklind appeals contending the trial court erred in determining no
prima facie case was shown by the petition. The court relied in part on this
court’s opinion, which concluded there was substantial evidence to support
the jury’s verdict on a theory of aiding and abetting the actual killer. 2 The
Attorney General concedes error, arguing the trial court could not deny relief
at that early stage of the petition review and should have issued an order to
show cause and proceed to hearing. We will agree with the parties and find
the court was premature in its resolution of the petition. We will reverse the
court’s order and remand the case for further proceedings.
STATEMENT OF FACTS
The facts of the offenses are fully set forth in our prior opinion. We will
not repeat them here. We will adopt the brief summary in the respondent’s
brief for background purposes.
2 It is undisputed that Fryklind was not the actual killer.
2
Fryklind and his fellow gang-members attacked a rival gang member at
a liquor store. One of Fryklind’s confederates shot and killed the rival gang
member and wounded other victims. Fryklind confessed his involvement in
the murder to a cooperating witness who recorded the conversation. During
that conversation, Fryklind acknowledged hiding the murder weapon at his
girlfriend’s house.
DISCUSSION
When a trial court receives a petition for resentencing under
section 1170.95, the court must first review the petition to determine if the
petition presents a prima facie case for relief. If it does, the court must issue
an order to show cause and conduct the appropriate proceedings as required
by the statute. (People v. Drayton (2020) 47 Cal.App.5th 965, 975-976
(Drayton).)
In order to determine whether a prima facie case for relief has been
shown, the court should ordinarily appoint counsel, and receive briefing from
the People and from the petitioner. (§ 1170.95, subds. (c), (d)(1) & (3).)
The trial court may review the record of conviction to determine if the
form allegations in the petition are correct. The authority to review the
record “is limited to readily ascertainable facts from the record (such as the
crime of conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining whether the
petitioner showed reckless indifference to human life in the commission of the
crime).” (Drayton, supra, 47 Cal.App.5th at p. 980.)
If the record, without weighing evidence, shows the petitioner is
ineligible for relief as a matter of law, the court can deny the petition without
an order to show cause.
3
In this case, the trial court relied on the jury verdicts finding Fryklind
to be an aider and abettor. The court also considered our prior opinion in
which we found there was substantial evidence to support the verdict. The
verdicts do not establish the requisite indifference for human life. Our
opinion notes there was substantial dispute as to the exact role of the various
parties to the crimes. Our finding of substantial evidence is not in itself a
factfinding by this court. Rather, it is a statement that there was enough
evidence, if believed by the jury, to support the verdicts.
In short, the record before the trial court does not, as a matter of law
render Fryklind ineligible for relief under the statute.
We agree with the parties the trial court’s order must be reversed and
the case remanded to the trial court with directions to issue an order to show
cause and undertake further proceedings.
DISPOSITION
The order denying Fryklind’s petition for resentencing under
section 1170.95 is reversed. The case is remanded to the Superior Court with
4
directions to issue an order to show cause and to conduct such further
proceedings as required by the statute.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
5