Filed 4/21/21 P. v. Childress CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B299879
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA356413)
v.
JOEL VINCENT CHILDRESS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Joanna McKim, 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, Charles Lee and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Defendant and appellant Joel Vincent Childress
(defendant) appeals from the summary denial of his petition for
resentencing under Penal Code section 1170.95.1 Defendant
contends that the trial court was required to appoint counsel and
permit briefing prior to finding defendant eligible or ineligible for
relief. Finding no merit to defendant’s contention, we affirm the
order.
BACKGROUND
The 2011 murder convictions2
Defendant and codefendants were tried together and
convicted of one count of first degree murder (count 2); two counts
of attempted willful, deliberate, and premeditated murder
(counts 3 and 4); and one count of making a criminal threat
(count 5). In addition, defendant was convicted of one count of
second degree murder (count 1). The jury found true the special
circumstance that count 1 was one of multiple murders, within
the meaning of section 190.2, subdivision (a)(3). The jury also
found true that, as to all counts, the crimes were committed for
the benefit of, at the direction of, and in association with a
criminal street gang, with the specific intent to promote, further
and assist in criminal conduct by gang members, within the
meaning of section 186.22, subdivision (b)(1)(C); as to counts 1, 2,
3, and 4, that a principal personally and intentionally used and
discharged a firearm, within the meaning of section 12022.53,
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 We granted defendant’s request for judicial notice of the
appellate record in People v. Childress (Sept. 4, 2013, B238241)
(nonpub. opn.) (Childress I). We summarize the procedural
history and some of the trial evidence from this opinion.
2
subdivisions (c) and (e)(1); and as to counts 1 and 2 that the
discharge of the firearm proximately caused great bodily injury
and death to the victims. (Childress I, supra, B238241.)
Trial evidence
Count 1: second degree murder
The evidence presented at trial showed that in February
2008 a white Chevrolet sedan approached a liquor store where
the store’s surveillance camera recorded the sedan circling
around and slowing to a stop at the curb in front of the murder
victim. (Childress I, supra, B238241.) The video showed a
person in dark clothing getting out of the white car just before
two flashes were seen. (Ibid.) Defendant later admitted to law
enforcement that he was driving his mother’s white Chevrolet
sedan with two fellow gang members as passengers, knowing
that they intended to “put in work” for the gang, and knowing
that getting out of a car to “bang” on someone meant that
violence would result. (Ibid.) Defendant also admitted that
before he drove them to the liquor store, he had guessed that one
of his passengers had a gun. He admitted that when he pulled up
to the curb, the gang member with the gun opened the door and
started shooting. (Ibid.) Soon afterward, the sedan was painted
black. Defendant claimed that his mother had it painted after an
accident. (Ibid.)
Counts 2-5: first degree murder, attempted murders,
threat
In May 2009, defendant was driving the same Chevrolet
sedan, by then painted black, with his codefendants and fellow
gang members, Kelsie Palmer and Eric Allen. (Childress I,
supra, B238241.) He stopped alongside a woman wearing a blue
bandanna, a color symbolizing a rival gang. (Ibid.) Allen got out
3
of the car and held a gun to the woman’s side, as both he and
Palmer threatened her several times before the three men left
the scene. (Ibid.)
A short time later, defendant and his companions came
across a woman sitting in her parked car talking to her boyfriend
and a neighbor, who stood outside the car. (Childress I, supra,
B238241.) Defendant pulled the black sedan up alongside her car
and stopped, just before Palmer opened the front passenger door
and Allen emerged from rear passenger seat. (Ibid.) Allen and
possibly Palmer may have fired their weapons, wounding the
neighbor and killing the woman. Defendant and his
codefendants were identified and arrested the same day. (Ibid.)
The section 1170.95 petition
In June 2019, defendant filed a petition for resentencing
under section 1170.95. On the form petition, defendant checked
the boxes for the allegations that he had been charged with
murder, that he was not the actual killer, that he was convicted
“pursuant to the felony murder rule or the natural and probable
consequences doctrine,” that he was not a major participant in
the crime, and that his murder conviction would be invalid under
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” Defendant checked both the box requesting
the appointment of counsel, as well as the box averring that there
has been a prior determination by a court or jury that he was not
a major participant in the crime or did not act with reckless
indifference to human life under section 190.2.
Defendant also checked every other box on the form
petition, except the box indicating conviction of second degree
murder on a plea of guilty or no contest.
4
On August 21, 2019, after a review of the court’s file and
our appellate opinion in Childress I, the trial court found
defendant ineligible for relief under section 1170.95, and
summarily denied the petition.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant contends that the trial court prejudicially erred
by summarily denying his petition for resentencing without
appointing counsel and permitting briefing, in violation of his
federal constitutional rights to due process and the assistance of
counsel.
A petitioner under section 1170.95 is entitled to the
appointment of counsel, the opportunity for further briefing, and
a hearing only if his petition makes a prima facie showing that he
is entitled to relief. (See § 1170.95, subds. (c) & (d).) A “‘prima
facie showing is one that is sufficient to support the position of
the party in question.’” (People v. Drayton (2020) 47 Cal.App.5th
965, 977 (Drayton), quoting Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 851.) As relevant here, a person is entitled
to relief under section 1170.95 if he was convicted of felony
murder or murder under a natural and probable consequences
theory and all of the following conditions apply: (1) “[a] complaint,
information, or indictment was filed against [him] that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine,”
(2) he “was convicted of first degree or second degree murder
following a trial,” and (3) he “could not be convicted of first or
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a).)
5
Defendant argues that he made a prima facie showing of
entitlement to relief because he checked the boxes indicating the
required allegations. He concludes that the trial court was thus
required to issue an order to show cause and to appoint counsel.
Defendant checked all the boxes except the box to allege that he
had pled guilty or no contest. If every petitioner did the same,
everyone would make out a prima facie case for relief whether
true or untrue, making the pleading requirements of section
1170.95, subdivision (a) meaningless. However, contrary to
defendant’s argument, even where a petition alleges every
element necessary to make out a prima facie case for relief, a
trial court is not required to accept those allegations at face
value, but may also examine the record of conviction. (People v.
Lewis (2020) 43 Cal.App.5th 1128, 1138, review granted Mar. 18,
2020, S260598 (Lewis); see People v. Tarkington (2020) 49
Cal.App.5th 892, 899-900, 908-909, review granted Aug. 12, 2020,
S263219 (Tarkington); People v. Edwards (2020) 48 Cal.App.5th
666, 673-674, review granted July 8, 2020, S262481; Drayton,
supra, 47 Cal.App.5th at p. 968; People v. Torres (2020) 46
Cal.App.5th 1168, 1178, review granted June 24, 2020, S262011;
People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, review
granted Mar. 18, 2020, S260493; but see People v. Cooper (2020)
54 Cal.App.5th 106, 119-121, review granted Nov. 10, 2020,
S264684.)
The record of conviction includes such documents as 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.” (Verdugo, supra, 44
Cal.App.5th at pp. 329-330.) The record of conviction also
includes jury instructions and any appellate opinion in the case.
6
(See Lewis, supra, 43 Cal.App.5th at pp. 1138-1139.) The
contents of the record of conviction will defeat a defendant’s
prima facie showing when the record “show[s] as a matter of law
that the petitioner is not eligible for relief.” (Lewis, at p. 1138,
italics added; see Drayton, 47 Cal.App.5th at p. 968; Torres,
supra, 46 Cal.App.5th at p. 1177; Verdugo, at p. 333; see also
People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted
Mar. 18, 2020, S260410 [record must show defendant is
“indisputably ineligible for relief”].)
A petitioner is ineligible for relief under section 1170.95 as
a matter of law if, like defendant, he was not convicted of felony
murder or murder under a natural and probable consequences
theory. (People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-
1167; see § 1170.95, subd. (a).) Here, the jury was never
instructed regarding the felony murder rule or the natural and
probable consequences doctrine, and defendant makes no claim in
his briefs that there were such instructions. The trial court read
to the jury CALJIC No. 3.01, which defines direct aiding and
abetting a crime or attempted crime. CALJIC No. 3.01 instructs
the jury that to find a person guilty as an aider and abettor, it
must find that with knowledge of the perpetrator’s intent to
commit the crime, and with the intent or purpose of committing
or encouraging or facilitating the commission of the crime, the
aider and abettor, by act or advice, aids, promotes, encourages or
instigates the commission of the crime. The jury was also
instructed regarding express and implied malice murder, malice
aforethought, transferred intent, deliberate and premeditated
murder, second degree murder, special circumstances for
multiple murder and intentional killing by an active criminal
street gang member. The record of conviction thus shows that
7
defendant was convicted of murder as a direct aider and abettor,
not under the felony murder rule or the natural and probable
consequences doctrine. He is thus ineligible for relief as a matter
of law. (See People v. Nguyen, supra, at p. 1167.)
Moreover, in convicting defendant of first degree murder as
charged in count 2 of the information, the jury found true the
special circumstance allegation that defendant intentionally
killed the victim while defendant was an active participant in a
criminal street gang (§ 190.2, subd. (a)(22)). This finding also
makes defendant ineligible for relief under section 1170.95.
(People v. Allison (2020) 55 Cal.App.5th 449, 460.)
Defendant argues that his defense at trial was that he
thought his accomplices intended to commit a robbery, not
murder, and points out that section 1170.95 provides for the
admission of new evidence at the hearing to determine whether
the defendant is entitled to relief. (See § 1170.95, subd. (d)(3).
He concludes that with the appointment of counsel and further
briefing, it was reasonably probable that counsel could have
convinced the court to issue an order to show cause and grant a
hearing at which new evidence may have supported his defense.
“Nothing in the language of section 1170.95 suggests it was
intended to provide redress for allegedly erroneous prior
factfinding. In particular, subdivision (a)(3) of section 1170.95
says nothing about erroneous prior findings or the possibility of
proving contrary facts if given a second chance. Rather, it
requires that the petitioner could not be convicted of murder
because of the changes to sections 188 and 189, not because a
prior fact finder got the facts wrong. The purpose of section
1170.95 is to give defendants the benefit of amended sections 188
and 189 with respect to issues not previously determined, not to
8
provide a do-over on factual disputes that have already been
resolved.” (People v. Allison, supra, 55 Cal.App.5th at p. 461.)
Otherwise, “every convicted murderer who could make a prima
facie showing (whatever that might be) that the prior findings
were factually incorrect would be entitled to a bench trial de novo
on those findings.” (Ibid.)
Both before and after the changes to sections 188 and 189,
an aider and abettor could and still can be convicted of murder if
he intentionally acted with express or implied malice, so long as
malice was not “imputed to [the] person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3).) Here, malice was
not imputed to defendant solely based on his participation in the
crimes. As discussed above, the instructions and verdicts show
that he was convicted as a direct aider and abettor of murder who
harbored his own intent to kill. Thus, the record of conviction
shows that the allegation of defendant’s petition, that he could
not now be convicted of first or second degree murder because of
the changes to sections 188 and 189, like the allegation that
defendant was convicted of felony murder or murder under the
natural and probable consequences doctrine, is untrue. We
conclude that the trial court did not err in summarily denying the
petition.3
In addition, the trial court did not err in denying the
petition without appointing counsel. Prisoners have no federal
3 We did not find in the record of conviction any support for
the petition’s allegation that there has been a determination by a
court or jury that defendant was not a major participant in the
crime or did not act with reckless indifference to human life; and
defendant has not argued here that such a determination has
been made.
9
“constitutional right to counsel when mounting collateral attacks
upon their convictions.” (Pennsylvania v. Finley (1987) 481 U.S.
551, 555.) Under the federal constitution, the right to appointed
counsel extends only to trial and the first appeal; and when
states enact statutes to provide other postconviction relief, they
have substantial discretion whether to develop and implement
such programs.4 (Pennsylvania v. Finley, at pp. 557-559.) As
defendant did not make a prima facie showing of eligibility under
section 1170.95, the trial court was not required to appoint
counsel. (See § 1170.95, subds. (c) & (d).)
DISPOSITION
The order denying the petition for resentencing is affirmed.
________________________, J.
CHAVEZ
We concur:
________________________, P. J.
LUI
________________________, J.
ASHMANN-GERST
4 In California, examples can be found in the rules governing
petitions for writ of habeas corpus and coram nobis, which
require the petition to state a prima facie showing of entitlement
to relief before the court must appoint counsel. (See People v.
Fryhaat (2019) 35 Cal.App.5th 969, 982.)
10