People v. Jones CA2/4

Filed 4/22/21 P. v. Jones CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B304692

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.YA037935)
v.

MARCUS JONES,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Laura C. Ellison, Judge. Reversed and
remanded with directions.
Tracy Dressner, 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 S. Lee and John Yang, Deputy
Attorneys General, for Plaintiff and Respondent.
 Appellant Marcus Jones challenges the trial court’s denial
of his petition for resentencing under Penal Code section
1170.95.1 We agree that the trial court erred by making factual
findings prior to issuing an order to show cause (OSC). The
matter is remanded for issuance of an OSC and further
proceedings consistent with section 1170.95, subdivision (d).
Respondent’s request for judicial notice is denied.
BACKGROUND
I. Underlying Conviction2
A. Prosecution Evidence
On May 23, 1996, an employee of the Park Avenue Market
in Inglewood saw appellant and his cousin, Melvin Jones
(Melvin), outside the store. Appellant and Melvin put on facial
coverings, and Melvin drew a handgun from his pants. As Melvin
and appellant entered the store, the employee saw Melvin
holding the gun and appellant walking toward the cash register.
The employee heard something to the effect of, “Okay. This is a . .
.” before he ran down the street for help. The employee heard a

1All further statutory references are to the Penal Code
unless otherwise indicated.
2Appellant draws his lengthy statement of facts directly

from the transcripts of his 2000 trial, which are in the appellate
record, and criticizes respondent’s “bare bones recitation” drawn
from our prior opinion, People v. Jones (Sept. 25, 2001, B143098)
[nonpub. opn.], which is also in the appellate record. Because
both the transcripts and our prior opinion are already in the
appellate record, respondent’s request for judicial notice of these
documents and the remainder of the record of appellant’s direct
appeal is denied. (See People ex rel. Lockyer v. Shamrock Foods
(2000) 24 Cal.4th 415, 422-423, fn. 2.) We note that appellant’s
recitation of the facts is materially similar to that in our prior
opinion. We draw our summary from both sources.

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single gunshot, then saw appellant and Melvin run from the store
about 30 seconds later.
The employee and two police officers who happened to be
nearby pursued appellant and Melvin. Appellant and Melvin
were apprehended minutes later at the top of a stairwell in an
apartment complex. They were sweaty and breathing hard, and
smelled of alcohol, but they did not appear intoxicated. Police
officers retraced the route appellant and Melvin had taken and
found a loaded gun, a bandanna and face mask, a glove, and a
one dollar bill. When appellant was booked at the jail, police
found two $5 bills in his left pants pocket and two $10 bills and a
$1 bill in his right. The bills were crumpled.
The owner of the store, Won Hee Lee, died of a single
gunshot wound to the head. Stippling marks on the wound
indicated that the shot was fired from about six inches away.
Forensics testing showed that the gun recovered by the police
fired the fatal bullet. Both Melvin and appellant were found to
have particles consistent with gunshot primer on their hands.
B. Defense Evidence
Appellant testified that he and Melvin were 15 at the time
of the incident. At school that day, Melvin twice mentioned
wanting to do something to get money, which appellant
understood to mean committing theft or robbery. Appellant
ignored him, as Melvin had never done anything like that.
After school, appellant and Melvin played video games,
drank vodka, and smoked marijuana. They later obtained and
shared an additional pint of vodka. Appellant testified that he
felt dizzy and drunk and vomited twice.
Melvin pulled a gun from his sock and said he wanted to
rob Park Avenue Market. Appellant watched Melvin load and

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cock the gun. Appellant said he did not want to participate in a
robbery and tried to talk Melvin out of it. Eventually Melvin said
he would do it alone and started walking away. Appellant joined
Melvin, hoping to keep him from getting hurt or hurting anyone
else.
When appellant and Melvin reached an alcove outside the
store, Melvin put on a mask and a glove. Appellant put the glove
Melvin offered him in his pocket, but tied his basketball
bandanna around his face. Appellant stayed in the doorway of
the store while Melvin went to the counter. Appellant heard
Melvin say a couple words and then heard a gunshot; Melvin had
shot Lee. Melvin reached over the counter and grabbed money
from the register; appellant, who could not understand how
Melvin could think about money after shooting someone,
nevertheless accepted the money Melvin handed him, balled it
up, and put it in his right pocket.
Appellant ran away from the scene with Melvin. While
they were running, Melvin asked appellant for his bandanna,
which appellant removed and handed to him. Appellant and
Melvin ran to Melvin’s father’s apartment, outside of which they
were apprehended shortly after they arrived.
After his arrest, appellant told a psychiatrist, “he ‘did
something stupid,’ emptying the register and running out.”
Appellant admitted making the statement but said the “he” was
referring to Melvin.
C. Conviction and Sentence
Appellant was charged with murder (§ 187, subd. (a)) and
second degree robbery (§ 211). The information also alleged that

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a principal was armed with a handgun (§ 12022, subd. (a)(1)).3
Appellant and Melvin originally were tried together; Melvin was
convicted of first degree murder, but a mistrial was declared as to
appellant. At appellant’s retrial, at which the prosecution
advanced a felony murder theory, the jury found him guilty of
first degree murder and second degree robbery, and found the
enhancement true. The court sentenced appellant to 25 years to
life for the murder and a consecutive term of one year for the
enhancement; it stayed the sentence on the robbery conviction
under section 654. We affirmed appellant’s convictions and
sentence on September 25, 2001.
Appellant was released from prison on parole in January
2019.
II. Section 1170.95 Proceedings
On May 15, 2019, appellant, through counsel, filed a
petition for resentencing pursuant to section 1170.95. In his
petition, appellant asserted, inter alia, that a complaint was filed
against him that permitted the prosecution to proceed under a
felony murder theory; that he was convicted of first degree
murder under the felony murder rule; that he could not now be
convicted of first degree murder; that he was not the actual killer;
that he did not, with the intent to kill, aid, abet, counsel,
command, induce, solicit, request, or assist the actual killer in
the commission of murder; and that he was not a major
participant in the felony and did not act with reckless
indifference to human life during the course of the crime.

3Theinformation further alleged a robbery-murder special
circumstance (§ 190.2, subd. (a)(17)), but the word “stricken” is
handwritten next to the allegation, and it does not appear to have
been pursued at appellant’s trial.

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Appellant also stated that this court “specifically found that Mr.
Jones did not personally kill the victim, that the victim was shot
by Mr. Jones’s co-defendant, and that Mr. Jones did not want to
participate in the underlying robbery, tried to dissuade his co-
defendant, and only accompanied his co-defendant because he
hoped his presence would prevent anyone from getting hurt.”
“Based on the aforementioned,” appellant asserted that he was
entitled to resentencing under section 1170.95, subdivision
(d)(2).4
On July 22, 2019, the trial court granted the prosecution’s
“second request for extension of time to file informal response”
and continued the matter to October 28, 2019 “for further
proceedings.”
On October 17, the prosecutor filed a response to the
petition. As relevant here,5 the prosecution contended that
appellant failed to prove his eligibility for resentencing because
he was a major participant who acted with reckless indifference,
even under the frameworks established by People v. Banks (2015)
61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522

4Section 1170.95, subdivision (d)(2) states: “The parties
may waive a resentencing hearing and stipulate that the
petitioner is eligible to have his or her murder conviction vacated
and for resentencing. If there was a prior finding by a court or
jury that the petitioner did not act with reckless indifference to
human life or was not a major participant in the felony, the court
shall vacate the petitioner’s conviction and resentence the
petitioner.”
5The prosecution also argued that section 1170.95 was

unconstitutional. The trial court did not rule on this argument,
which is not at issue in this appeal.

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(Clark). The prosecution attached our prior opinion to its brief,
as well as the transcripts from appellant’s trial.
On October 23, 2019, the court granted appellant’s request
for additional time and ordered “petitioner’s hearing” continued
to January 22, 2020. The prosecution notified the court on
October 28, 2019 that it was unavailable on January 22, 2020;
the court continued the matter to January 23, 2020 “for
argument pursuant to Penal Code section 1170.95” and ordered
appellant to appear on that date.
Appellant filed a reply in support of his petition on
December 20, 2019. The reply included a statement of facts
drawn from exhibits accompanying the petition, including a
Supreme Court opinion addressing a writ in the matter (People v.
Superior Court (Jones) (1998) 18 Cal.4th 667); our prior opinion;
a report documenting a July 3, 1996 psychiatric evaluation; a
“follow up” police report of the incident; a probation report dated
July 11, 2000; and a transcript of a surreptitiously recorded
conversation appellant and Melvin had while in the back of a
police car on the day of the incident. Several of these documents,
most notably the transcript, were not admitted at appellant’s
trial or contained in the record of conviction. Citing section
1170.95 subdivision (d)(3),6 appellant argued that he was entitled

6Section 1170.95, subdivision (d)(3) describes the
procedures the court must follow after issuing an order to show
cause. Specifically, it provides: “At the hearing to determine
whether the petitioner is entitled to relief, the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing. If the
prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be

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to resentencing because “[t]he People failed to prove beyond a
reasonable doubt that Mr. Jones was both a major participant
and acted with reckless indifference to human life.” Using the
frameworks established by Banks, supra, 61 Cal.4th 788 and
Clark, supra, 63 Cal.4th 522, appellant further contended that he
was not a major participant and did not act with reckless
indifference to human life.
The court heard the matter on January 23, 2020; appellant
was present with his counsel. At the hearing, appellant’s counsel
opened his argument by stating that section 1170.95 “subsection
(d)(3) clearly puts the burden of proof on the prosecution to prove
beyond a reasonable doubt that Mr. Jones was both a major
participant and acting in reckless indifference.” He then reserved
the remainder of his argument for rebuttal. The prosecutor then
asserted, “That’s correct, Your Honor,” before arguing that
appellant was a major participant who acted with reckless
indifference. During the prosecutor’s argument, the court
observed that “the facts are obviously everything in this case”
and referred to the transcript appellant submitted with his reply,
asking, “wasn’t there a surreptitious tape made of them in the
back of the patrol car?” Appellant responded to the prosecutor’s
argument by arguing that he was not a major participant and did
not act with reckless indifference. Appellant notes this several
times, seemingly implying it is relevant.
After appellant’s argument, the court stated that it “read
carefully in [sic] great interest the transcript of the conversation
these two 15 year olds [sic] had in the police car immediately

resentenced on the remaining charges. The prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.”

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after this robbery.” It remarked, “if I’m reading [the transcript]
correctly, [appellant] is lamenting the fact that in this plan
beforehand, he was urging his cousin to give him the gun. He was
supposed to have the gun in the first place. That doesn’t sound to
me factually as if - - well, the words speak for themselves.”
The court then orally denied the motion: “I think that
factually it’s pretty clear this motion must be denied. Mr. Marcus
Jones was both a major participant, and he is one who acted with
complete reckless indifference to human life. He planned this
crime together with his 15-year-old cousin who was like his
brother. He robbed the victim together with Melvin Jones. He
actually took the money. He actually watched as his cousin,
quote, blasted - - I won’t use the profanities. But he shot the
victim in the face. And he was well aware and knew that.
Despite that knowledge, he fled together with his cousin. He
disposed of evidence with his cousin. And again, they fled
together. They didn’t go separate directions. He didn’t run from
his cousin as if he was shocked, appalled, upset, afraid of what he
had done. He was with full knowledge and participation of both
the preplanning of an armed robbery, participation in a planned
armed robbery. He fled with him to the same location disposing
of evidence. He stayed together with him afterwards. He sat in
the patrol car with him afterwards lamenting their future and
saying, no matter what we’re in this together. We’re in this
together for life. They were together the whole way. He was a
major participant, and he acted with reckless disregard. The
language and discussion between these two 15-year-old men after
they had full knowledge they shot a man in the face is disgusting
and disturbing and shows nothing but the fact that they’re
hardened, vicious, and violent killers. So the motion is denied. . .

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. I will not even be addressing the constitutionality of this
section at all.”
The minute order entered after the hearing stated that the
matter had been “called for hearing pursuant to Penal Code
1170.95(a).” It further stated: “Court finds defendant was a
major participate [sic] and watch [sic] his cousin shot [sic] the
victim and both defendant [sic] fled together and disposed of the
evidence. Defendant Marcus Jones had full knowledge and
participation of the crime. It was planed [sic] with his cousin and
he took money. Defendant’s [sic] was reckless and with disregard
[sic] of the victim. Petition pursuant to Penal Code section
1170.95(a) denied.”
Appellant timely appealed.
DISCUSSION
Appellant raises two issues. First, he contends the trial
court erred by making factual findings at the prima facie stage of
the case. Second, he contends the trial court erred in relying on
evidence outside the record of conviction—the transcript
appellant provided—to deny his petition. Respondent argues
both contentions are forfeited due to appellant’s failure to object
below, and lack merit in any event because the parties
“effectively skipped the prima facie stage and litigated the case at
the post-Order-To-Show-Cause evidentiary hearing stage.”
We proceed to the merits of appellant’s first argument,
conclude that the proceedings were at the prima facie stage, and
hold that the court accordingly erred by making factual findings
that appellant was a major participant who acted with reckless
indifference. We need not and do not address appellant’s second
argument.

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I. Governing Law
In 2018, the Legislature enacted Senate Bill No. 1437 (SB
1437), the primary purpose of which is to align a person’s
culpability for murder with his or her own actions and subjective
intent. (See Stats. 2018, ch. 1015, § 1, subd. (g).) To effectuate
that purpose, SB 1437 amended sections 188 and 189. As
amended, section 188, subdivision (a)(3) now provides that “to be
convicted of murder, 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.” (§ 188, subd. (a)(3).)
Section 189 now provides that a participant in qualifying felonies
during which a death occurs generally will not be liable for
murder unless (1) he or she was “the actual killer,” (2) he or she,
“with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the
commission of murder in the first degree,” or (3) he or she “was a
major participant in the underlying felony [who] acted with
reckless indifference to human life.” (§ 189, subds. (e)(1)-(3).) The
effect of these changes was to restrict the application of the felony
murder rule and the natural and probable consequences doctrine
as applied to murder. (People v. Lamoureux (2019) 42
Cal.App.5th 241, 248.) “Felony murder and aiding and abetting a
murder remain crimes, but to be convicted of murder it isn’t
enough to participate in a felony that results in a death. Now, a
person so accused must have killed the victim, aided the person
who did kill the victim with the intent to kill [them], or acted as a
major participant in the felony with reckless indifference to
human life.” (People v. Johns (2020) 50 Cal.App.5th 46, 54.)
SB 1437 also added section 1170.95 to the Penal Code.
Section 1170.95 permits a person convicted of murder on a

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charging document that allowed the prosecution to argue felony
murder or the natural and probable consequences doctrine to
petition the sentencing court to vacate the conviction and
resentence on any remaining counts if the person could not be
convicted of murder under sections 188 and 189 as amended by
SB 1437. (§ 1170.95, subd. (a).) A petition for relief under section
1170.95 must include: “(A) A declaration by the petitioner that
he or she is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case
number and year of the petitioner’s conviction. [¶] (C) Whether
the petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).) If any of this information is missing “and cannot be
readily ascertained by the court,” the court may deny the petition
without prejudice. (§ 1170.95, subd. (b)(2).)
If the petition contains the required information, section
1170.95, subdivision (c) provides that “[t]he 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 within 60 days of service of the petition
and the petitioner may file and serve a reply within 30 days after
the prosecutor response is served. These deadlines shall be
extended for good cause. 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.” (§ 1170.95, subd. (c).) A petitioner
makes a prima facie showing if his or her assertions are not
conclusively refuted by facts in the record as a matter of law.
(People v. Drayton (2020) 47 Cal.App.5th 965, 968, 980 (Drayton);
see also People v. Duchine (2021) 60 Cal.App.5th 798 (Duchine);

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but see People v. Garcia (2020) 57 Cal.App.5th 100, 116, rev.
granted Feb. 10, 2021, S265692.)
“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.” (People v. Verdugo (2020) 44 Cal.App.5th 320,
327 (Verdugo), rev. granted, S260493, Mar. 18, 2020.) If the
prosecution does not stipulate to vacating the conviction and
resentencing the petitioner prior to the hearing (§ 1170.95, subd.
(d)(2)), it then bears the burden of proving “beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.”
(§ 1170.95, subd. (d)(3).) The prosecution may offer new evidence
in addition to that within the record of conviction to carry this
burden; the petitioner similarly may offer new evidence at the
hearing. (Ibid.) If the prosecution prevails, the petition is
denied. “If the prosecution fails to sustain its burden of proof, the
prior conviction, and any allegations and enhancements attached
to the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (Ibid.)
II. Analysis
The parties disagree about the phase to which the
proceedings here had progressed. Appellant contends they were
at the prima facie stage described by section 1170.95, subdivision
(c), while respondent maintains they had progressed to a “de
facto post-OSC hearing under section 1170.95, subdivision (d).”
Respondent also contends appellant forfeited this issue and
“invited the court to make the necessary findings” by “arguing
directly that appellant was not a substantial participant who
acted with reckless disregard.”

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 We decline to find forfeiture. Both parties directly and
extensively argued about whether appellant was a major
participant who acted with reckless disregard. In accordance
with the requirements of section 1170.95, subdivisions (a)(3) and
(b)(1)(A), appellant’s petition asserted that he was not a major
participant and did not act with reckless disregard for human
life. The sole substantive argument the prosecution made in
response was that appellant was a major participant who acted
with reckless indifference. Appellant would have been remiss
had he not in reply “argu[ed] directly that appellant was not a
substantial participant who acted with reckless disregard,”
particularly where the law in the area was (and in many respects
remains) largely unsettled. Indeed, Drayton, supra, 47
Cal.App.5th 965 had not yet been decided, and case law in the
area continues to evolve.
We agree with Drayton and Duchine, supra, 60 Cal.App.5th
798, that “the prima facie showing the defendant must make is
that he did not, in fact, act or harbor the mental state required,
for a murder conviction under current law.” (Duchine, supra, at
p. 815.) “[W]hen assessing the prima facie showing, the trial
court should assume all facts stated in the section 1170.95
petition are true. [Citation.] The trial court should not evaluate
the credibility of the petition’s assertions, but it need not credit
actual assertions that are untrue as a matter of law. . . .”
(Drayton, supra, 47 Cal.App.5th at p. 980.) “The record should be
consulted at the prima facie stage only to determine ‘readily
ascertainable facts,’ such as the crime of conviction and findings
on enhancements.” (Duchine, supra, at p. 815.) “[T]he time for
weighing and balancing and making findings on the ultimate
issues arises at the evidentiary hearing stage rather than the

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prima facie stage, at least where the record is not dispositive on
the factual issues.” (Ibid.; see also Drayton, supra, 47
Cal.App.5th at pp. 980-982.)
Both parties appear to accept this framework; respondent
even acknowledges that appellant’s claim of “improper finding of
fact” would be “valid . . . if the case had been disposed of at the
prima facie stage of subdivision (c).” We conclude the case was in
fact at that stage.
Appellant filed his petition; the prosecution filed a
response; and appellant filed a reply. These events track those
listed in section 1170.95, subdivisions (a), (b), and (c).
Subdivision (a) permits the filing of a petition; subdivision (b)
enumerates what the petition “shall include”; and subdivision (c)
sets forth the procedure for review. “The court shall review the
petition and determine if the petitioner has made a prima facie
showing . . . . The prosecutor shall file and serve a response
within 60 days of service of the petition and the petitioner may
file and serve a reply within 30 days after the prosecutor
response is served.” (§ 1170.95, subd. (c).)
Once these events have occurred, which they did here, the
court must determine whether the petitioner has made the prima
facie showing. (See § 1170.95, subd. (c).) “[S]ubdivision (c) does
not define the process by which the court is to make this
threshold determination,” Verdugo, supra, 44 Cal.App.5th at p.
329, but in practice many courts do so orally after hearing oral
argument from the parties. The record indicates that is what the
court did here. A minute order issued October 28, 2019 states
that the court continued the matter to January 23, 2020 “for
argument pursuant to Penal Code section 1170.95.” At that
argument, the court gave no indication that it had already

15
determined whether appellant had made a prima facie showing.
It did not issue an OSC. (§ 1170.95, subd. (c).) Instead, it heard
argument from both parties, during which neither side presented
additional evidence. The court then made numerous factual
determinations, issued a minute order stating that the case had
been called for an “1170.95(a) PC hearing on petn,” and denied
the petition. The court did not state, either orally or in its
minute order, that the facts it found had been proven beyond a
reasonable doubt.
The court at no time gave the parties any indication that
the matter had advanced to the section 1170.95, subdivision (d)
stage. Respondent suggests such an indication was unnecessary,
because appellant “invoked the prosecution burden of proving
beyond a reasonable doubt his ineligibility for resentencing, a
subject matter strictly within the realm of a subdivision (d),
hearing.” This is simply a restatement of the forfeiture
argument, and we again reject it. Without an OSC or some other
signal from the court, appellant had no way of knowing that the
“argument” for which he was appearing was in fact the hearing at
which he would have the opportunity to present additional
evidence and hold the prosecution to its burden of proof beyond a
reasonable doubt. Indeed, the prosecution similarly lacked notice
and may have presented its case differently had it known the
argument was its final opportunity to address the court.
As the Drayton court stated: “At this stage of the petition
review process, governed by section 1170.95(c), the trial court
should not have engaged in . . . factfinding without first issuing
an order to show cause and allowing the parties to present
evidence at a hearing, as described in section 1170.95,
subdivision (d). Further, the Banks test, which governs the

16
inquiry whether the defendant was a major participant in a
felony necessarily requires the weighing of facts and drawing
inferences. [Citation.] The question whether [appellant] acted
with reckless indifference is a similarly multifaceted inquiry.
[Citation.] In making an assessment of the petitioner’s prima
facie showing, the trial court should not have evaluated and
weighed the evidence but instead should have accepted
petitioner’s asserted facts as true.” (Drayton, supra, 47
Cal.App.5th at p. 982, footnotes omitted.)
Appellant’s petition, which was prepared by counsel,
facially met the requirements of section 1170.95, subdivision (b)
and did not state facts that foreclosed his eligibility for relief as a
matter of law. He accordingly was entitled to an OSC and a
hearing that explicitly met the requirements of section 1170.95,
subdivision (d). The order is reversed and remanded with
directions to provide appellant with those things. We express no
opinion as to the merits of appellant’s petition or either party’s
arguments regarding the substance of the court’s factual
findings.
Because we conclude the court erred by making factual
findings at the prima facie stage, we need not consider the merits
of appellant’s strained argument that the court committed
reversible error by considering a document that appellant
provided.
DISPOSITION
The order denying appellant’s section 1170.95 petition is
reversed. The matter is remanded with directions to issue an
order to show cause and proceed consistently with section
1170.95, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.

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