People v. Hodges CA2/6

Filed 8/18/21 P. v. Hodges CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B305465
(Super. Ct. No. BA203416)
Plaintiff and Respondent, (Los Angeles County)

v. REVISED ORDER
MODIFYING OPINION AND
ODELL D. HODGES, DENYING REHEARING
[NO CHANGE IN
Defendant and Appellant. JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on July 27, 2021, be
modified as follows:
1. Two full paragraphs, beginning at third full paragraph on
page 7 (“A defendant’s right to counsel”) and ending on page 8
with citations (“(People v. Rouse, supra, 245 Cal.App.4th at
p. 300; see also People v. Duchine, supra, 60 Cal.App.5th at
p. 813.)”), are deleted.
There is no change in the judgment.
Respondent's petition for rehearing is denied.

____________________________________________________________
GILBERT, P.J. PERREN, J. TANGEMAN, J.
Filed 8/17/21 P. v. Hodges CA2/6 (prior 8/17/21 modification order)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B305465
(Super. Ct. No. BA203416)
Plaintiff and Respondent, (Los Angeles County)

v. ORDER MODIFYING
OPINION AND DENYING
ODELL D. HODGES, REHEARING
[NO CHANGE IN
Defendant and Appellant. JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on July 27, 2021, be
modified as follows:
1. Two full paragraphs, beginning at third full paragraph on
page 7 (“A defendant’s right to counsel”) and ending on page 8
with citations (“(People v. Rouse, supra, 245 Cal.App.4th at
p. 300; see also People v. Duchine, supra, 60 Cal.App.5th at
p. 813.)”), are deleted.
There is no change in the judgment.
Appellant's petition for rehearing is denied.

____________________________________________________________
GILBERT, P.J. PERREN, J. TANGEMAN, J.
Filed 7/27/21 P. v. Hodges CA2/6 (unmodified opinion)
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 SIX

THE PEOPLE, 2d Crim. No. B305465
(Super. Ct. No. BA203416)
Plaintiff and Respondent, (Los Angeles County)

v.

ODELL D. HODGES,

Defendant and Appellant.

Odell D. Hodges appeals an order denying his Penal Code
section 1170.95 petition for resentencing of his prior first degree
murder conviction.1 (§§ 187, subd. (a), 189.) The trial court’s
belief that Hodges was the shooter was confirmed by defense
counsel. The jury found that Hodges did not “discharge [the]
firearm” that killed the victim. We reverse and remand.
FACTS
On the evening of June 6, 2000, Troy Cox, Desmond
Alexander, and a man called “S-Dog” were outside a house in Los

1 All statutory references are to the Penal Code.
Angeles. They were affiliated with the Bloods street gang.
Hodges and a man with a blue cap walked by. Alexander and
S-Dog wanted to know why a man in a blue cap was in the
Bloods’ neighborhood. A fight broke out. Five or 10 minutes
later, Hodges and his friend retreated.
Alexander ran to the back of the house followed by Hodges
and the man in the blue cap who were armed. Cox heard gun
shots. Alexander was dead. Hodges and the man in the blue cap
returned to a car and drove away. More than one firearm was
involved in this incident.
Later that night, Cox identified Hodges’s picture in a
photographic lineup as the person who shot Alexander.
The jury found Hodges guilty of first degree murder (§ 187,
subd, (a)) with findings that he used and discharged a firearm
(§ 12022.53).
The prosecutor’s theory was that Hodges was the person
who actually shot and killed Alexander. But the jury rejected
that claim.
The jury made the following finding: “We further find the
allegation that in the commission of the above offense, the said
defendant ODELL DUN HOWARD HODGES, personally and
intentionally discharged a firearm to wit, a handgun which
proximately caused death to DESMOND ALEXANDER within
the meaning of Penal Code section 12022.53(d) to be NOT
TRUE.”
On March 25, 2019, Hodges filed a petition for resentencing
under section 1170.95. In that petition he stated, “I was not the
actual killer.”
The People did not claim that Hodges was the actual killer,
but nevertheless opposed the petition.

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 During the hearing on the initial phase of the section
1170.95 proceeding, the trial court asked Hodges’s counsel:
“[P]lease correct me if I am wrong on this your client was the
actual shooter.” Counsel: “I would submit on the court’s
assessment of the case.” The court: “That being the fact that I
don’t believe your client qualifies or is eligible for relief under
[Senate Bill No. 1437, section] 1170.95. I will deny your
petition.”
DISCUSSION
The Section 1170.95 Petition
Hodges contends the trial court erred by summarily
denying his section 1170.95 petition based on the erroneous
assumption that he was the actual shooter. He also contends his
trial counsel provided ineffective assistance at that hearing. We
agree.
In 2018 the Legislature passed Senate Bill No. 1437. It
authorized a procedure for those convicted of first or second
degree murder to petition for resentencing. (§ 1170.95.) It
changed the standard for first degree or second degree murder
convictions (§§ 188, 189) based on the felony murder rule or the
natural and probable consequences doctrine. “These changes,
which the Legislature adopted in 2018 in Senate Bill 1437 and
which went into effect on January 1, 2019, 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.” (People v. Anthony (2019) 32 Cal.App.5th 1102,
1147, italics added.)
Section 1170.95, subdivision (a)(1)-(3) provides, in relevant
part, “A person convicted of felony murder or murder under a

3
natural and probable consequences theory may file a petition
with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts when all of the following conditions 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 . . . . [¶] (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.”
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.” (Italics added.)
The first step in the section 1170.95 procedure requires the
petitioner to make a prima facie showing that he or she is eligible
for relief. If a prima facie showing is made, the trial court
proceeds to the second stage and issues an order to show cause
for a hearing. At the hearing, “[t]he prosecutor and the petitioner
may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens.” (§ 1170.95, subd.

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(d)(3), italics added.) “[T]he burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (Ibid.)
Courts have held that where the petition is frivolous or the
petitioner is categorically ineligible for section 1170.95 relief, the
trial court may summarily dismiss the petition. (People v.
Cervantes (2020) 44 Cal.App.5th 884, 887; People v. Verdugo
(2020) 44 Cal.App.5th 320, 329-330, review granted Mar. 18,
2020, S260493; People v. Cornelius (2020) 44 Cal.App.5th 54, 58,
review granted Mar. 18, 2020, S260410.)
A Fair Hearing at the First Stage of the Section 1170.95 Process
Here at the first stage of the section 1170.95 proceeding,
the trial court summarily denied the petition. It asked Hodges’s
counsel, “[P]lease correct me if I am wrong on this your client was
the actual shooter.” Defense counsel confirmed that to be the
case by stating, “I would submit on the court’s assessment of the
case.” Based on this representation, the court said, “That being
the fact . . . I don’t believe your client qualifies . . . .” (Italics
added.) But counsel’s representation to the court, upon which the
court relied, was not accurate. According to a jury finding,
Hodges was not the actual killer.
The jury made the following finding: “We further find the
allegation that in the commission of the above offense, the said
defendant ODELL DUN HOWARD HODGES, personally and
intentionally discharged a firearm to wit, a handgun which
proximately caused death to DESMOND ALEXANDER within
the meaning of Penal Code Section 12022.53(d) to be NOT
TRUE.” This supports Hodges’s claim that he was not the actual
killer.

5
 The trial court did not consider this jury finding before
making its decision to summarily deny the petition on the ground
that Hodges was the actual killer. Nor did it consider the sworn
statements in Hodges’s petition that 1) he was not the actual
killer; and 2) he could not “now be convicted of 1st or 2nd degree
murder because of changes made to Penal Code §§ 188 and 189,
effective January 1, 2019.” (People v. Drayton (2020) 47
Cal.App.5th 965, 980 [the court must consider the sworn
allegations in the section 1170.95 petition].) Instead, the court
solely relied on counsel’s representation to the court.
Consequently, the finding the court made to deny the petition
was based on an incorrect fact confirmed by defense counsel.
The People concede that the trial court denied the petition
on the basis of the false finding that Hodges was “the actual
killer as a matter of law.” They claim, however, that we may
affirm this order by substituting our own findings.
We agree with Hodges that he did not receive a fair hearing
at the first stage of the section 1170.95 proceeding. He claims
that because the record shows that he did not receive a fair
hearing, he is consequently entitled to another section 1170.95
hearing. We agree.
Section 1170.95 provides a procedure to accurately
determine a defendant’s eligibility for resentencing. The
Legislature’s goal was to ensure that defendants were provided a
proceeding consistent with the principles of fair play and “due
process to the petitioner.” (People v. Duchine (2021) 60
Cal.App.5th 798, 813.) We are confident the Legislature never
intended that a first stage section 1170.95 proceeding could be
summarily derailed by a patently false factual finding. A fair

6
hearing at this first stage requires the court to base its decision
on the record. That did not happen here.
Right to Effective Assistance of Counsel at a
Section 1170.95 Hearing
Hodges contends he was denied effective assistance of
counsel at the first stage section 1170.95 hearing. He claims his
counsel’s words prejudicially impacted his section 1170.95
petition. (Strickland v. Washington (1984) 466 U.S. 668, 687-692
[ineffective assistance is shown where counsel’s performance falls
below the standard for reasonably competent counsel and has a
prejudicial impact on the client’s case].)
The People claim Hodges “had no Sixth Amendment right
to counsel” because this was a “postconviction” proceeding. But
counsel was appointed to represent him, and of course he had the
right to effective assistance of counsel.
A defendant’s right to counsel in post-judgment proceedings
“derives not from the Sixth Amendment but “ ‘ “from the due
process and equal protection clauses of the Fourteenth
Amendment.” ’ ” (People v. Rouse (2016) 245 Cal.App.4th 292,
300, citing Martinez v. Court of Appeal of Cal. Fourth Appellate
Dist. (2000) 528 U.S. 152, 155; Douglas v. California (1963) 372
U.S. 353, 356-357.) “It is well established that due process
requires an incarcerated defendant be afforded the right to
counsel in various circumstances where the Sixth Amendment
does not.” (Rouse, at p. 300 [“If we were to assume the right to
counsel does not emanate from the Sixth Amendment since this
is a postconviction proceeding, we still conclude defendant had a
due process right to the assistance of counsel”].)
This proceeding involves a liberty interest and a right to
resentencing. This was the first stage of the section 1170.95

7
process, but these proceedings involve very important due process
and statutory rights. This was a critical stage of the criminal
proceeding. The appointment of counsel for Hodges was
appropriate and necessary. (People v. Rouse, supra, 245
Cal.App.4th at p. 300; see also People v. Duchine, supra, 60
Cal.App.5th at p. 813.)
Where the defendant is entitled to counsel, and has
appointed counsel, as here, he or she also has the right to receive
effective assistance of counsel. (In re Emilye A. (1992) 9
Cal.App.4th 1695, 1711.) Hodges was entitled to representation
that could effectively lead to “a factfinding process affording a
degree of due process to the petitioner.” (People v. Duchine,
supra, 60 Cal.App.5th at p. 813.) Here Hodges did not receive an
accurate factual presentation in court by his counsel. His lawyer
did not review the available record. This does not meet a
standard of reasonable representation.
Moreover, the People’s claim that counsel’s performance
was not prejudicial is incorrect. In Hodges’s section 1170.95
petition, he declared, “I was not the actual killer.” The jury
finding supports that claim. Counsel did not consider that jury
finding and Hodges’s section 1170.95 verified petition allegations.
Counsel and the court were not in a position to assert or make
contrary fact findings at the first stage of the section 1170.95
proceeding. (People v. Drayton, supra, 47 Cal.App.5th at pp. 980,
982.) Moreover, in the People’s opposition to the section 1170.95
petition, they did not claim that Hodges was the actual shooter.
Because of these facts, the trial court erred by relying on
defense counsel’s representation of facts to summarily deny
Hodges’s section 1170.95 petition. (People v. Drayton, supra, 47
Cal.App.5th at p. 980 [the verified section 1170.95 petition may

8
alone constitute a sufficient prima facie showing under section
1170.95 that would preclude a summary dismissal of the
petition].) The statement by Hodges’s counsel was incorrect and
it directly caused the summary dismissal. It incorrectly placed
Hodges into the ineligible category for section 1170.95 relief as
the actual killer and foreclosed any determination about other
factors that could determine whether he was eligible for section
1170.95 relief. We do not decide those factors because they are
initially issues the trial court must resolve. In certain cases the
trial court may receive additional evidence from the parties to
assist it in deciding the petition. (§ 1170.95, subd. (d)(3).)
Moreover, since Hodges’s conviction, our Supreme Court
has highlighted new standards that limit imposing murder
liability for those who did not kill the victim. (See People v. Clark
(2016) 63 Cal.4th 522, 614 (Clark); People v. Banks (2015) 61
Cal.4th 788, 807 (Banks).) These standards and the changes to
murder liability as a result of Senate Bill No. 1437 are factors the
trial court will have to consider. (People v. Torres (2020) 46
Cal.App.5th 1168, 1178-1179, review granted June 24, 2020,
S262011 [jury’s 2001 murder-special-circumstance findings
against defendant alone do not render defendant automatically
ineligible for section 1170.95 relief because of the changes to
murder liability made by Senate Bill No. 1437 and the Clark and
Banks decisions].)
Other Issues
The People claim Hodges is not entitled to section 1170.95
relief because he could alternatively “be liable as a direct aider
and abettor to malice murder.” The trial court gave an aider and
abettor jury instruction at Hodges’s trial in 2001. But under
today’s standards, a jury’s reliance on that particular instruction

9
to find aider and abettor murder liability could amount to
reversible error. That instruction is not the complete instruction
that is now required. It omitted relevant language necessary for
aider and abettor murder liability. The instruction did not
contain the language that “when a person directly aids and abets
a murder, the aider and abettor must possess malice
aforethought.” (People v. Gentile (2020) 10 Cal.5th 830, 844,
italics added.) “[I]t is certainly not ‘readily ascertainable’ on this
record that the jury found” Hodges “shared the murderous intent
of the shooter” using the aider and abettor instruction the trial
court gave. (People v. Secrease (2021) 63 Cal.App.5th 231, 247.)
“ ‘[A]bsent a record of conviction that conclusively establishes that
the petitioner engaged in the requisite acts and had the requisite
intent, the trial court should not question [the petitioner’s]
evidence’ ” at the first stage of the section 1170.95 proceeding.
(People v. Rivera (2021) 62 Cal.App.5th 217, 230.)
Moreover, after Hodges’s trial, Senate Bill No. 1437
changed the law for murder liability for non-killers and the
definition of malice. Hodges was convicted at a time when the
former felony murder rule was applicable. Consistent with that
former doctrine, his jury was instructed, “Each principal,
regardless of the extent or manner of participation is equally
guilty.” (Italics added.) But Senate Bill No. 1437 changed the
doctrine of imputed murder liability for each participant. Hodges
was also convicted before the Banks and Clark decisions
redefined the standards for imposing murder liability on those
who are not the actual killers.
Hodges notes the prosecutor’s theory was not that he was
an aider and abettor, but rather that he was “the actual shooter,”
and he notes the “jury rejected that theory.” He claims the

10
prosecutor failed to present a case for aider and abettor liability.
He suggests that because of the jury’s finding, there is a gap in
the record about what precisely happened in the back of the
house which is relevant in determining murder liability under
Senate Bill No. 1437. That gap may be filled by evidence from
the parties at an evidentiary hearing following the issuance of an
order to show cause. But not at the first stage of the section
1170.95 proceeding. (People v. Rivera, supra, 62 Cal.App.5th at
p. 230.)
Consequently, here 1) there is a change in the law because
of Senate Bill No. 1437, 2) there is a gap in the factual record, 3)
the parties have conflicting views about how the jury reached its
verdict, and 4) Hodges alleged sufficient facts for section 1170.95
relief in his petition. Consequently, a trial court given these
factors may not engage in “factfinding” to deny relief “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).” (People v. Drayton, supra, 47 Cal.App.5th at
p. 982; see also People v. Tarkington (2020) 49 Cal.App.5th 892,
898, review granted Aug. 12, 2020, S263219 [trial court must
“take petitioner’s factual allegations as true,” and, if sufficient,
issue an order to show cause].)
The People claim Senate Bill No. 1437 was enacted to
provide relief for defendants convicted of murder where the jury
was instructed to use the natural and probable consequences
doctrine. They claim that doctrine was not applied in Hodges’s
case.
But in his section 1170.95 petition, Hodges declared that
the natural and probable consequences doctrine was applied in
his case. That supported a prima facie showing for an order to

11
show cause. (People v. Tarkington, supra, 49 Cal.App.5th at
p. 898; People v. Drayton, supra, 47 Cal.App.5th 965, 982.)
Moreover, the jury was instructed to apply the natural and
probable consequences doctrine. Jurors were instructed, “[A
[proximate] cause of [death] is an act or omission that sets in
motion a chain of events that produces as a direct, natural and
probable consequence of the act or omission the [death] and
without which the [death] would not have occurred.” (Italics
added.)
DISPOSITION
We reverse the order and remand the case to the trial court
for a new section 1170.95 hearing.
NOT TO BE PUBLISHED.

GILBERT, P. J.
We concur:

PERREN, J.

TANGEMAN, J.

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 Norman J. Shapiro, Judge

Superior Court County of Los Angeles

______________________________

Janet Gusdorff, under appointment by the Court of Appeal,
for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Steven D. Matthews and
Michael J. Wise, Deputy Attorneys General, for Plaintiff and
Respondent.

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