Filed 6/9/21 P. v. Sharonoff CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE, C092529
Plaintiff and Respondent, (Super. Ct. No. P10CRF0036)
v.
KENNETH ALLEN SHARONOFF,
Defendant and Appellant.
A jury convicted defendant Kenneth Allen Sharonoff of second degree murder and
several related charges. This court affirmed the conviction in 2012. In May 2020,
defendant filed a petition for resentencing under Penal Code section 1170.951 and
requested the appointment of counsel. The trial court found that defendant was ineligible
for relief and denied the petition without holding a hearing. Defendant appeals, arguing
that the trial court erred in denying his section 1170.95 petition without first appointing
him an attorney.
1 Undesignated statutory references are to the Penal Code.
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For the reasons set forth below, we conclude the trial court did not err in denying
defendant’s petition and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Following the 2010 killing of C.M., a jury found defendant guilty of one count of
second degree murder (§ 187, subd. (a)), one count of elder abuse resulting in death
(§ 368, subd. (b)(1)), two counts of possession of a firearm by a felon (former § 12021,
subd. (a)(1)), and one count of possession of ammunition by a felon (former § 12316,
subd. (b)(1)). The jury also found various enhancement allegations to be true, including
the special allegation that, in committing the murder, defendant had personally and
intentionally discharged a firearm and thereby proximately caused great bodily injury and
death (§ 12022.53, subd. (d)). The trial court sentenced defendant to state prison for an
indeterminate term of 70 years to life plus a consecutive determinate term of 10 years.
Following an appeal, this court affirmed the judgment. (People v. Sharonoff (Feb. 27,
2012, C066292) [nonpub. opn.].) On May 21, 2012, we issued a remittitur, rendering the
judgment final.
On May 13, 2020, defendant filed a handwritten petition to vacate his murder
conviction, citing section 1170.95. In the petition, defendant averred that a complaint or
information had been filed against him that allowed the prosecution to proceed under the
natural and probable consequences doctrine, and he had been convicted of murder under
that theory. He requested that the trial court appoint him counsel in the proceeding on the
petition.
The trial court summarily denied the petition in a written order. The court found
defendant had failed to make a prima facie showing that he was eligible for relief under
section 1170.95, reasoning as follows: “Specifically, Section 1170.95 mandates the
vacating of a murder conviction when three conditions apply. First, a charging document
was filed against a defendant which allowed the prosecution to proceed under the theory
of felony murder, or murder under the natural and probable cause theory. Second, a
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defendant was convicted of murder by a jury’s verdict, or by a plea. Third, a defendant
could not be convicted of murder today due to changes made to Penal Code Sections 188
and 189, which became effective January 1, 2019. [¶] It is clear in the instant case that
the defendant was not prosecuted under the felony murder rule, or the natural and
probable consequences theory. He was not an individual who was vicariously liable for
another person’s actions. Rather, he was the actual killer of [C.M]. The defendant was
the only participant in this crime, and his shooting of [C.M.] directly caused that man’s
death. [¶] In short, because the defendant was the actual killer, he was not prosecuted
under either the felony murder rule, or the natural and probable consequences theory.
The jury determined that he, and he alone, personally and intentionally shot and killed
[C.M]. As such, the enactment of [Penal Code section] 1170.95 cannot be utilized to
vacate his murder conviction.” (Fns. omitted.)
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends the trial court erred by summarily denying his petition without
appointing counsel. He argues this is inconsistent with the language of section 1170.95,
as well as the state and federal constitutional rights to due process and assistance of
counsel. We disagree.
I
Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which became
effective on January 1, 2019, revised the felony-murder rule in California “to ensure that
murder liability is not imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill
amended section 188, which defines malice, and section 189, which defines the degrees
of murder to address felony-murder liability; it also added section 1170.95, which
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provides a procedure by which those convicted of murder can seek retroactive relief if the
changes in the law would affect their previously sustained convictions. (Stats. 2018,
ch. 1015, §§ 2-4; People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417; People v.
Lewis (2020) 43 Cal.App.5th 1128, 1133, review granted Mar. 18, 2020, S260598
(Lewis).)
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 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).)
To make a prima facie showing, all three of the following conditions must apply:
“(1) A complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder.
“[And]
“(3) The petitioner 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).)
Section 189 was amended to include new subdivision (e), which provides:
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“A participant in the perpetration or attempted perpetration of a felony [including
rape, robbery, and burglary] in which a death occurs is liable for murder only if one of
the following is proven:
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, 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.
“(3) The person was a major participant in the underlying felony and acted with
reckless indifference to human life, as described in subdivision (d) of Section 190.2.”
(Stats. 2018, ch. 1015, § 3.)
Senate Bill 1437 also “added a crucial limitation to section 188’s definition of
malice for purposes of the crime of murder.” (People v. Verdugo (2020) 44 Cal.App.5th
320, 326, fn. omitted, review granted Mar. 18, 2020, S260493 (Verdugo).) Under new
section 188, subdivision (a)(3), “[m]alice shall not be imputed to a person based solely on
his or her participation in a crime.” “As a result, the natural and probable consequences
doctrine can no longer be used to support a murder conviction.” (Lewis, supra,
43 Cal.App.5th at p. 1135, review granted.)
II
Summary Denial Prior to Appointing Counsel
Defendant contends the trial court erred by summarily denying his petition without
first appointing counsel, which he claims newly enacted section 1170.95 mandates. In
his view, section 1170.95 does not permit a court to preliminarily determine whether a
defendant meets the statute’s prima facie criteria. Instead, upon receiving a section
1170.95 petition, the trial court must first appoint counsel, if requested, and permit the
parties to file responsive pleadings before determining whether the defendant has stated a
prima facie case of eligibility. Interpreting the statute as defendant urges would render
the first sentence of subdivision (c), which provides that “[t]he court shall review the
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petition and determine if the petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section,” mere surplusage. (§ 1170.95, subd. (c); see
Delaney v. Superior Court (1990) 50 Cal.3d 785, 799 [“a construction that renders a
word surplusage should be avoided”]; see also People v. Woodhead (1987) 43 Cal.3d
1002, 1010 [“It is a settled axiom of statutory construction that significance should be
attributed to every word and phrase of a statute, and a construction making some words
surplusage should be avoided.”].)
When interpreting statutory language, we do not examine language in isolation but
consider the context of the statutory framework as a whole. (Bruns v. E-Commerce
Exchange, Inc. (2011) 51 Cal.4th 717, 724.) “When the statutory framework is, overall,
chronological, courts will construe the timing of particular acts in relation to other acts
according to their location within the statute; that is, actions described in the statute occur
in the order they appear in the text.” (Lewis, supra, 43 Cal.App.5th at pp. 1139-1140,
review granted, citing KB Home Greater Los Angeles, Inc. v. Superior Court (2014)
223 Cal.App.4th 1471, 1477 [statutory scheme’s sequential structure supports
interpretation that acts required by the statute occur in the same sequence].) Applying
this principle to section 1170.95, subdivision (c), the trial court must first determine
whether a petitioner has made a prima facie showing that he or she “falls within the
provisions” of the statute before appointing counsel, receiving briefs and then
determining whether the petitioner has made “a prima facie showing that he or she is
entitled to relief.” (§ 1170.95, subd. (c); Lewis, at p. 1140; see Verdugo, supra,
44 Cal.App.5th at p. 330, review granted [“That the Legislature intended this three-step
evaluation of a section 1170.95 petition is confirmed by the history of the legislation”].)
As other courts have recognized, “[a] prima facie showing of eligibility triggers
the trial court’s obligation to issue an order to show cause and either hold a hearing, give
the parties an opportunity to waive a hearing and stipulate to eligibility, or ‘[i]f there was
a prior finding by a court or jury that the petitioner did not act with reckless indifference
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to human life or was not a major participant in the felony, the court shall vacate the
petitioner’s conviction and resentence the petitioner.’ ” (People v. Ramirez (2019)
41 Cal.App.5th 923, 929, citing § 1170.95, subds. (c), (d)(1) & (2).) That is, only after
the trial court determines that a petitioner has made a sufficient prima facie showing that
he or she “falls within the provisions” of the statute is briefing done and a hearing held
where the prosecution “has the burden to prove beyond a reasonable doubt[] that [a]
petitioner is ineligible for resentencing.” (Ramirez, at p. 929; § 1170.95, subd. (d)(3).)
Where the court concludes that the petitioner does not fall within the provisions of the
statute, no purpose would be served by proceeding to the next stages (appointment of
counsel, response by the prosecutor, order to show cause), and summary denial of the
petition without a hearing is proper. Indeed, “ ‘[i]t would be a gross misuse of judicial
resources to require the issuance of an order to show cause or even appointment of
counsel based solely on the allegations of the petition, which frequently are erroneous,
when even a cursory review of the court file would show as a matter of law that the
petitioner is not eligible for relief.’ ” (Lewis, supra, 43 Cal.App.5th at p. 1138, review
granted; see People v. Cornelius (2020) 44 Cal.App.5th 54, 57-58, review granted
Mar. 18, 2020, S260410 [affirming summary denial of petition based on verdict, trial
transcript, and prior appeal]; accord People v. Tarkington (2020) 49 Cal.App.5th 892,
897-898, review granted Aug. 12, 2020, S263219; People v. Edwards (2020)
48 Cal.App.5th 666, 673, review granted July 8, 2020, S262481; People v. Drayton
(2020) 47 Cal.App.5th 965, 975-976; People v. Torres (2020) 46 Cal.App.5th 1168,
1177-1178, review granted June 24, 2020, S262011; but see People v. Cooper (2020)
54 Cal.App.5th 106, 113-123 [holding that all properly pleaded petitions immediately
entitle a petitioner to counsel], review granted Nov. 10, 2020, S264684.)
As the trial court discussed, defendant was ineligible for relief because he was the
actual killer and had not been convicted of felony murder or murder under a theory of
natural and probable consequences. Here, the trial court found the facts underlying
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defendant’s conviction for second degree murder established beyond a reasonable doubt
that he killed the victim. As we observed on direct appeal, a witness saw defendant shoot
the victim twice during an argument. (People v. Sharonoff, supra, C066292.) Moreover,
as the trial court noted, its conclusion was “mandated not only by the evidence presented
at trial, but also by the jury’s finding that the special allegation ([§] 12022.53[, subd. ](d))
that the defendant personally and intentionally discharged the firearm that proximately
caused [C.M.’s] death was true.” As the “actual killer,” defendant did not fall within
section 1170.95’s resentencing provision because he could still be convicted of first or
second degree murder under section 189 as amended by Senate Bill 1437. (§ 189,
subd. (e).)
Defendant alternatively argues that the trial court’s summary denial of his petition
violated his federal constitutional right to counsel under the Sixth Amendment.
However, defendant had no constitutional right to counsel at this stage of a section
1170.95 proceeding. This provision’s retroactive relief reflects an act of lenity by the
Legislature and is not subject to Sixth Amendment analysis. (Cf. People v. Anthony
(2019) 32 Cal.App.5th 1102, 1156 [no right to jury trial in proceedings under Senate Bill
1437 because its retroactive relief is “an act of lenity that does not implicate defendants’
Sixth Amendment rights”].)
Finally, defendant claims the summary denial of his petition violated his
procedural due process rights because it deprived him of procedures to which he was
entitled under section 1170.95. Not so. As we have discussed, the trial court’s summary
denial of defendant’s petition complied with section 1170.95’s procedures.
III
Harmless Error
Defendant’s argument is that after receiving his petition, the trial court should
have appointed counsel and deferred ruling on the petition until the government had filed
a response, and defendant—with the assistance of counsel—a reply. But defendant has
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not offered any explanation for how the assistance of counsel in drafting a reply brief
could have produced a different result.
Defendant’s bare petition does not support a prima facie showing that he falls
within the provisions of section 1170.95. Further, as summarized by the trial court, his
record of conviction precludes it. (See Verdugo, supra, 44 Cal.App.5th at pp. 329-330,
review granted.) The trial court properly determined that defendant’s record of
conviction showed he did not fall within the provisions of section 1170.95 because
“defendant was not prosecuted under the felony murder rule, or the natural and probable
consequences theory” and “he was the actual killer.” Even with the benefit of counsel
appointed to represent him in this appeal, defendant is patently ineligible for relief under
the statute.
Under these circumstances, even assuming appointment of counsel was required,
the trial court’s failure to do so was harmless beyond a reasonable doubt. (See People v.
Cornelius, supra, 44 Cal.App.5th at p. 58, review granted [rejecting contention that trial
court erred in ruling on § 1170.95 petition before appointing counsel where petitioner
was “indisputably ineligible for relief”].)
DISPOSITION
The judgment (order) denying the petition is affirmed.
/s/
HOCH, J.
We concur:
/s/
RAYE, P. J.
/s/
BLEASE, J.
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