Filed 3/3/21 P. v. Goodwin CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B307231
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA052683)
v.
MICHAEL FRANK GOODWIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Stanley Blumenfeld, Judge. Affirmed.
Thomas Owen, 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 Michael R. Johnsen, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Michael Frank Goodwin was
convicted of two counts of first degree murder arising from the
execution-style shooting deaths of Mickey and Trudy Thompson
in the driveway of their home in 1988. The jury also found true
lying-in-wait and multiple-murder special-circumstance
allegations as to each murder count. Defendant was sentenced to
two life terms without the possibility of parole. In 2015, we
affirmed defendant’s conviction in an unpublished decision.
(People v. Goodwin (Jan. 26, 2015, B197574) [nonpub. opn.].)
After the passage of Senate Bill No. 1437 (2017–2018
Reg. Sess.) in 2018, defendant filed a petition for resentencing
pursuant to Penal Code section 1170.95. Section 1170.95 was
enacted as part of the legislative changes effected by Senate Bill
No. 1437 and became effective January 1, 2019. (Stats. 2018,
ch. 1015, § 4.) Defendant, acting in propria persona, filed a form
petition in which he alleged he was convicted of first degree
murder under the felony murder rule or the natural and probable
consequences doctrine and that he could no longer be so convicted
in light of the changes made to sections 188 and 189 by Senate
Bill No. 1437. Defendant stated he was not the actual killer, did
not act with intent to kill and was not a major participant in the
deaths of Mickey and Trudy Thompson. Defendant attached
several exhibits to his petition, including excerpts of the jury
instructions and a declaration from one of the jurors. Defendant
also requested the appointment of counsel.
At a hearing in June 2020, the trial court summarily
denied defendant’s petition without appointing counsel.
Relying on a review of the jury instructions, the verdict
forms and our prior opinion affirming defendant’s conviction, the
trial court found defendant was not eligible for resentencing and
2
could not make out a prima facie case because he had not been
convicted under the felony murder doctrine or under a natural
and probable consequences theory. Rather, defendant was found
guilty under a theory of conspiracy to commit murder or as a
direct aider and abettor and the jury necessarily found defendant
acted with express malice as to both murders in finding true the
lying-in-wait special-circumstance allegations.
Defendant appealed. He contends the trial court erred in
summarily denying his resentencing petition without first
appointing him counsel and allowing an evidentiary hearing.
Defendant also argues the court engaged in improper factfinding
at the initial review stage by reviewing the record of conviction.
We disagree. Penal Code 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.” The statutory
language, read in context, contemplates an initial eligibility
determination by the court. Allegations stated in a resentencing
petition may be erroneous. Where, as here, there is no
reasonable factual dispute regarding eligibility for relief, it would
be a waste of judicial resources to automatically require the
appointment of counsel and briefing on a moot point. Several
courts have interpreted the statutory language and have
concluded that a defendant seeking resentencing is entitled to
appointment of counsel only after demonstrating a prima facie
case, and the Supreme Court is now considering the issue. (See,
e.g., People v. Lewis (2020) 43 Cal.App.5th 1128, 1139–1140,
review granted Mar. 18, 2020, S260598 (Lewis); People v.
Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18,
2020, S260410; People v. Verdugo (2020) 44 Cal.App.5th 320,
3
328–332, review granted Mar. 18, 2020, S260493 (Verdugo);
People v. Tarkington (2020) 49 Cal.App.5th 892, 901–902, review
granted Aug. 12, 2020, S263219 (Tarkington).)
Pending guidance from the Supreme Court, we adopt the
persuasive analyses in these decisions. We are not persuaded by
defendant’s argument that Lewis, Cornelius, Verdugo and
Tarkington were wrongly decided. The statutory framework
supports the trial court’s authority to make an initial eligibility
determination as a matter of law without appointing counsel.
Moreover, for the same reasons we identified in People v. Falcone
(2020) 57 Cal.App.5th 272, 279, review granted January 27, 2021,
S266041, the denial of counsel did not infringe on defendant’s
rights.
The trial court also did not err, nor did it engage in
improper factfinding, in relying on our prior opinion in making its
eligibility determination. Numerous courts have concluded the
prior opinion from a defendant’s direct appeal may be considered
by the trial court as part of the record of conviction in ruling on a
resentencing petition. (See, e.g., Lewis, supra, 43 Cal.App.5th at
pp. 1137–1138, review granted Mar. 18, 2020, S260598; Verdugo,
supra, 44 Cal.App.5th at pp. 329–330, 333, review granted
Mar. 18, 2020, S260493; Tarkington, supra, 49 Cal.App.5th at
p. 899, fn. 5, review granted Aug. 12, 2020, S263219.) Pending
the Supreme Court’s resolution of this issue in Lewis, we adopt
the analyses in these decisions.
We granted respondent’s request to take judicial notice of
the appellate record in People v. Goodwin, supra, B197574.
The record of conviction here demonstrates the trial court
did not err in concluding as a matter of law defendant could not
establish eligibility for resentencing. Defendant was charged
4
only with two counts of murder. Defendant was not prosecuted
on a theory of felony murder or under a natural and probable
consequences theory. He was prosecuted as a coconspirator or
direct aider and abettor in a murder-for-hire scheme and could be
prosecuted under those same theories under the amended murder
statutes. Moreover, the jury necessarily found defendant acted
with express malice with respect to both murders by finding true
the lying-in-wait special-circumstance allegations. (People v.
Flinner (2020) 10 Cal.5th 686, 748 [lying-in-wait special
circumstance requires proof “the killing was intentional, not
merely committed with implied malice”].)
DISPOSITION
The order denying defendant’s resentencing petition is
affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.
5