Filed 8/13/21 P. v. Jeffries CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B306734
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A356228)
v.
ALLEN LYNN JEFFRIES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Michael D. Abzug, Judge. Affirmed.
Kelly C. Martin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Allen Lynn Jeffries appeals the summary denial of a
petition for resentencing under Penal Code1 section 1170.95.
Although the trial court erred in summarily denying the petition
without first appointing counsel, the error was harmless because
the record of conviction establishes that appellant is ineligible for
relief as a matter of law. (People v. Lewis (S260598, July 26,
2021) __ Cal.5th __ (Lewis) [2021 Cal. LEXIS 5258 at pp. *19,
*28–*29, *32, *36].)
FACTUAL AND PROCEDURAL BACKGROUND
On December 23, 1979, after participating in a dice game,
appellant shot and killed another player in the game. Admitting
he was the actual killer, appellant pleaded guilty to the second
degree murder of Gregory Frazier in violation of section 187,
subdivision (a). In accordance with the plea, the trial court
sentenced appellant to a term of 15 years to life in state prison.
On February 14, 2020, appellant filed a form petition for
resentencing under section 1170.95. Appellant requested the
appointment of counsel, and checked boxes stating, among other
things, he “was not the actual killer” and he “was convicted of
2nd degree murder under the natural and probable consequences
doctrine or under the 2nd degree felony murder doctrine and [he]
could not now be convicted of murder because of changes to Penal
Code § 188, effective January 1, 2019.” After receiving an
opposition from the People but without appointing counsel for
appellant, the trial court summarily denied the petition. The
court based its denial on appellant’s admission on the record at
the plea hearing that he was the actual killer, which the court
1 Undesignated statutory references are to the Penal Code.
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found made him ineligible for relief under section 1170.95 as a
matter of law.
DISCUSSION
Appellant contends the trial court’s denial of his
resentencing petition without appointing counsel or affording him
an opportunity to file a reply to the People’s opposition
“erroneously denied [him] the assistance of counsel and a fair
hearing under section 1170.95 and the state and federal
Constitutions.” Although the trial court erroneously failed to
appoint counsel, we conclude the error was harmless.
The Legislature enacted Senate Bill No. 1437 to “amend
the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, 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);
People v. Gentile (2020) 10 Cal.5th 830, 842; People v. Martinez
(2019) 31 Cal.App.5th 719, 723.) To accomplish this objective, the
Legislature substantively amended sections 188 and 189, and
added section 1170.95, which provides a procedure for seeking
retroactive relief to persons previously convicted of murder under
a felony murder or natural and probable consequences theory if
they could no longer be convicted under the law as amended.
Lewis, supra, __ Cal.5th at pp. __ [2021 Cal. LEXIS 5258 at
pp.*2, *6]; Gentile, supra, 10 Cal.5th at p. 843; Martinez, supra,
31 Cal.App.5th at pp. 722–723.)
Subdivision (a) of section 1170.95 sets forth the
requirements for a facially sufficient petition. The petitioner
must aver that (1) the charging document “allowed the
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prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine”;
(2) “petitioner was convicted of first or second degree murder”;
and (3) “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); Lewis, supra, __ Cal.5th
at pp. __ [2021 Cal. LEXIS 5258 at pp. *6–*7].) Subdivision (b) in
turn “describes where and how the petition must be filed and
specifies its required content,” including a declaration by the
petitioner that he or she “is eligible for relief according to the
criteria set out in subdivision (a).” (People v. Drayton (2020) 47
Cal.App.5th 965, 973 (Drayton).) “If a petition fails to comply
with subdivision (b)(1), ‘the court may deny the petition without
prejudice to the filing of another petition.’ (§ 1170.95, subd.
(b)(2).)” (Lewis, supra, __ Cal.5th at p. __ [2021 Cal. LEXIS 5258
at p. *7].)
If a petition for resentencing under section 1170.95 meets
the requirements of subdivisions (a) and (b), the trial court
“proceeds to subdivision (c)[2] to assess whether the petitioner has
made ‘a prima facie showing’ for relief. (§ 1170.95, subd. (c).)”
(Lewis, supra, __ Cal.5th at p. __ [2021 Cal. LEXIS 5258 at p.
*7].) At this stage, the trial court must accept briefing from the
parties before making its prima facie determination of eligibility.
2 Section 1170.95, subdivision (c) provides in relevant part:
“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
makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.”
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(Lewis, supra, __ Cal.5th at p. __ [2021 Cal. LEXIS 5258 at pp.
*21, 28–29].)
In Lewis, supra, __ Cal.5th __ [2021 Cal. LEXIS 5258], our
Supreme Court held that if a defendant files a facially sufficient
petition and requests the appointment of counsel, the trial court
must appoint counsel and entertain further briefing. (Id. at p. __
[2021 Cal. LEXIS 5258 at p. *15].) Only after the appointment of
counsel and the opportunity for briefing may the superior court
consider the record of conviction to determine whether the
petitioner makes a prima facie showing that he or she is entitled
to relief. (Id. at p. __ [2021 Cal. LEXIS 5258 at pp. *2–3].)
“The record of conviction will necessarily inform the trial
court’s prima facie inquiry under section 1170.95, allowing the
court to distinguish petitions with potential merit from those that
are clearly meritless.” (Lewis, supra, __ Cal.5th at p. __ [2021
Cal. LEXIS 5258 at p. *30.) In making its preliminary
assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved, the trial court
does not engage in factfinding and must take petitioner’s factual
allegations as true. (Lewis, at p. __ [2021 Cal. LEXIS 5258 at p.
*31, quoting Drayton, supra, 47 Cal.App.5th at p. 978.)
“ ‘However, if the record, including the court’s own documents,
“contain[s] facts refuting the allegations made in the petition,”
then “the court is justified in making a credibility determination
adverse to the petitioner.” ’ ” (Lewis, at p. __ [2021 Cal. LEXIS
5258 at p. *31, quoting Drayton, at p. 979.)
Here, appellant’s petition for resentencing met the
requirements for facial sufficiency and he requested counsel.
Lewis therefore dictates the conclusion that the trial court erred
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in its summary denial of appellant’s petition without first
appointing counsel and accepting briefing from both parties.
In Lewis, our Supreme Court nevertheless concluded the
deprivation of a petitioner’s right to counsel under subdivision (c)
of section 1170.95 is state law error only, tested for prejudice
under People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra, __
Cal.5th at pp. __ [2021 Cal LEXIS 5258 at pp. *3, *34–*36].)
Lewis further held that any error in summarily denying a section
1170.95 petition may be harmless unless the petitioner can show
“ ‘ “it is reasonably probable that if [he or she] had been afforded
assistance of counsel his [or her] petition would not have been
summarily denied without an evidentiary hearing.” ’ ” (Id. at
p. __ [2021 Cal. LEXIS 5258 at *36].)
In this case, we find the trial court’s error in failing to
appoint counsel and accept briefing from both parties before
considering the record of conviction and summarily denying the
petition to be harmless. Because the record of conviction
unequivocally establishes⎯by appellant’s own admission on the
record⎯that he was the actual killer, appellant is ineligible for
relief under section 1170.95 as a matter of law. No argument, no
matter how creative, by appointed counsel would change that
fact. Appellant therefore cannot carry his burden of showing a
reasonable probability that the outcome of the proceeding would
have been any different had the trial court appointed counsel and
given appellant the opportunity for further briefing.
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DISPOSITION
The superior court’s order denying relief under Penal Code
section 1170.95 is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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