Filed 11/3/21 P. v. Carter 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C092181
Plaintiff and Respondent, (Super. Ct. No. 96F00645)
v.
FREDERICK CARTER,
Defendant and Appellant.
Defendant Frederick Carter appeals the trial court’s denial of his petition for
resentencing under Penal Code section 1170.95.1 He contends the trial court erred by
summarily denying his petition without issuing an order to show cause and the court
erred in relying on this court’s prior opinion to conclude defendant was ineligible for
relief under section 1170.95 as a matter of law. We affirm.
1 Undesignated statutory references are to the Penal Code.
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BACKGROUND
Marcel Lofton was killed by multiple gunshot wounds, fired by defendant as
Lofton laid on the ground already wounded by gunshots fired by defendant. Defendant
claimed he suffered from mental health disorders affecting his perceptions.
Defendant was charged with first degree murder of Lofton. The information also
alleged that in the commission of the offense, defendant personally used a nine-
millimeter handgun. Defendant was not charged with felony murder, on an accomplice
liability theory, or under a natural and probable consequences theory. A jury found
defendant guilty of first degree murder and found true the allegation he personally used a
firearm in the commission of the offense. The trial court sentenced defendant to a term
of 25 years to life plus 10 years.2 Defendant appealed, claiming his postoffense
statement was erroneously excluded and instructional error. This court affirmed the
judgment.
Defendant filed a petition for resentencing under section 1170.95. Defendant
declared the prosecution proceeded “under the natural and probable consequences
doctrine,” he was convicted of second degree murder in lieu of going to trial because he
believed he could have been convicted “of 1st or 2nd degree murder pursuant to the
felony murder rule or the natural and probable consequences doctrine,” and he “could not
now be convicted of 1st or 2nd degree murder.”
Pursuant to a standing order, the trial court appointed counsel for defendant and
ordered briefing to determine whether to issue an order to show cause. After reviewing
the parties’ briefs and the “portions of the superior court file and the opinion of the Court
of Appeal affirming the judgment” the trial court noted defendant, acting alone, shot
Lofton. The trial court found “Because of the circumstances of this murder, [defendant]
2 Defendant was also charged, convicted, and sentenced on a stalking count unrelated to
the claims in this appeal
2
does not fall within the provisions of Penal Code § 1170.95. That statute applies only
when the defendant is convicted of felony-murder or under a natural and probable
consequences theory. This murder was a malice aforethought murder. He was not an
accomplice and intended to kill.” Accordingly, the trial court denied the petition.
DISCUSSION
Defendant contends the trial court erred in summarily denying his petition by
resolving factual issues without having issued an order to show cause and considering the
record of conviction, including our appellate opinion, in determining whether he had
made a prima facie showing of eligibility for relief.
Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which was enacted “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); see People v. Verdugo (2020) 44 Cal.App.5th 320, 325, review granted Mar.
18, 2020, S260493 (Verdugo); People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
“Senate Bill No. 1437 achieves these goals by amending section 188 to require that a
principal act with express or implied malice and by amending section 189 to state that a
person can only be liable for felony murder if (1) the ‘person was the actual killer’; (2)
the person was an aider or abettor in the commission of murder in the first degree; or (3)
the ‘person was a major participant in the underlying felony and acted with reckless
indifference to human life.’ (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2,
3.)” (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review granted Mar. 18, 2020,
S260410 (Cornelius); see Verdugo, at p. 326.)
Senate Bill No. 1437 also added section 1170.95, which permits persons convicted
of felony murder or murder under a natural and probable consequences theory to petition
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the sentencing court to vacate the conviction and be resentenced on any remaining counts
if he or she could not have been convicted of murder following Senate Bill No. 1437’s
changes to sections 188 and 189. (Stats. 2018, ch. 1015, § 4.) Section 1170.95,
subdivision (b) requires that the petitioner file a declaration showing his or her eligibility
for relief under subdivision (a), the superior court case number and year of the
petitioner’s conviction, and whether he or she requests the appointment of counsel.
Section 1170.95, subdivision (c), describes the next steps in the process as
follows: “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.”
Section 1170.95, subdivisions (b) and (c) create a three-step process for evaluating
a petitioner’s eligibility for relief. (Verdugo, supra, 44 Cal.App.5th at pp. 327-330,
review granted; accord, People v. Torres (2020) 46 Cal.App.5th 1168, 1177, review
granted June 24, 2020, S262011.) First, the trial court determines whether the petition is
facially sufficient under section 1170.95, subdivision (b)(2). (Verdugo, at pp. 327-328.)
To do this, the trial court verifies that the petition contains the information required under
section 1170.95, subdivision (b)(1), and supplies any missing information that can be
“readily ascertained” from reliable, accessible information, including the record of
conviction. (Verdugo, at pp. 328-330.)
If the petition is facially sufficient, then, in the second step, the trial court
determines under section 1170.95, subdivision (c) whether the petitioner has made “a
prima facie showing that the petitioner falls within the provisions of this section.”
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(§ 1170.95, subd. (c).) The Court of Appeal for the Second District, Division 7, has
described this inquiry as “a preliminary review of statutory eligibility for resentencing, a
concept that is a well-established part of the resentencing process under Propositions 36
and 47.” (Verdugo, supra, 44 Cal.App.5th at p. 329, review granted.) “The court’s role
at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of
law, making all factual inferences in favor of the petitioner.” (Ibid.) In making this
inquiry, the trial court may again examine readily available portions of the record of
conviction, including “at least,” 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.” (Id. at pp. 329-330.) The trial court may also consider jury
instructions and any appellate opinion in the case. (Id. at p. 333.)
If the trial court determines that the petitioner is not ineligible for relief as a matter
of law, the evaluation of the petition proceeds to the third step, a “second prima facie
review,” in which “the court must direct the prosecutor to file a response to the petition,
permit the petitioner (through appointed counsel if requested) to file a reply and then
determine, with the benefit of the parties’ briefing and analysis, whether the petitioner
has made a prima facie showing he or she is entitled to relief.” (Verdugo, supra,
44 Cal.App.5th at pp. 328, 330, review granted.) In this second prima facie review, the
trial court must take the petitioner’s factual allegations as true and make a preliminary
assessment whether he or she would be entitled to relief if they were proved. (Id. at
p. 328; see People v. Drayton (2020) 47 Cal.App.5th 965, 976 [in the second prima facie
review, “the trial [court] considers whether the petitioner has made a prima facie showing
of entitlement to (rather than eligibility for) relief”] (Drayton).)
“If, accepting the facts asserted in the petition as true, the petitioner would be
entitled to relief because he or she has met the requirements of section 1170.95[,
subdivision] (a), then the trial court should issue an order to show cause. [Citation.]
Once the trial court issues the order to show cause under section 1170.95[, subdivision]
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(c), it must then conduct a hearing pursuant to the procedures and burden of proof set out
in section 1170.95, subd[ivision] (d) unless the parties waive the hearing or the
petitioner’s entitlement to relief is established as a matter of law by the record.
[Citation.] Notably, following the issuance of an order to show cause, the burden of
proof will shift to the prosecution to prove, beyond a reasonable doubt, that the petitioner
is ineligible for resentencing.” (Drayton, supra, 47 Cal.App.5th at pp. 980-981.) Both
the prosecution and the defense may rely on the record of conviction or may offer new or
additional evidence. (§ 1170.95, subd. (d)(3).)
Analysis
Every Court of Appeal that has considered the issue has concluded that it is proper
for a trial court to consider the record of conviction in evaluating whether a defendant has
made a prima facie showing that he or she falls within the provisions of section 1170.95.
(People v. Lee (2020) 49 Cal.App.5th 254, 262-263, review granted July 15, 2020,
S262459; People v. Law (2020) 48 Cal.App.5th 811, 820-821, review granted July 8,
2020, S262490; People v. Edwards (2020) 48 Cal.App.5th 666, 673-674, review granted
July 8, 2020, S262481; People v. Torres, supra, 46 Cal.App.5th at p. 1178, review
granted; Verdugo, supra, 44 Cal.App.5th at pp. 329-330, 333, review granted; People v.
Lewis (2020) 43 Cal.App.5th 1128, 1137-1139, review granted Mar. 18, 2020, S260598;
see People v. Tarkington (2020) 49 Cal.App.5th 892, 898-899, review granted Aug. 12,
2020, S263219; People v. Offley (2020) 48 Cal.App.5th 588, 598-599.) And, these
Courts of Appeal have found no error in the summary denial of section 1170.95 petitions
where the record of conviction showed the defendant was ineligible for relief under
section 1170.95 because he could be convicted of first or second degree murder under the
law as amended by Senate Bill No. 1437 and, thus, did not fall within the provisions of
section 1170.95. (Lee, at pp. 262-263; Edwards, at p. 674; Verdugo, at p. 333; Cornelius,
supra, 44 Cal.App.5th at p. 58, review granted; Lewis, at p. 1137.) The California
Supreme Court granted review in Lewis, supra, 43 Cal.App.5th 1128, S260598, and other
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cases to address whether a trial court may consider the record of conviction in
determining if a defendant has made a prima facie showing of eligibility for relief under
section 1170.95. Until our Supreme Court decides the issue, we conclude it was proper
for the trial court to consider the record of conviction in determining whether defendant
made a prima facie showing that he fell within the provisions of section 1170.95.
“A court of appeal opinion, whether or not published, is part of the appellant’s
record of conviction. [Citations.] Accordingly, it [is] proper for [a] superior court to
consider” an opinion affirming a murder conviction “in determining whether [a
petitioner] ha[s] made a prima facie showing of eligibility for relief under section
1170.95 or whether he was ineligible for relief as a matter of law.” (Verdugo, supra,
44 Cal.App.5th at p. 333, review granted.)
A review of the readily available record of conviction, including our prior opinion,
the information, and the abstract of judgment, shows defendant “could not meet the
statutory prerequisites for even filing a section 1170.95 petition because he was not
charged or convicted of second degree felony murder or murder under the natural or
probable consequences doctrine directed at accomplice liability. Accordingly, the
superior court’s summary denial was appropriate on this ground alone.” (People v.
Edwards, supra, 48 Cal.App.5th at p. 674, review granted.)
Moreover, the record of conviction demonstrates defendant was the actual killer,
killing the victim by shooting him multiple times. Defendant was charged with first
degree murder and personally using a firearm in the commission of that crime. The
allegations of the murder involved a single perpetrator, not a situation in which multiple
persons carried out the attack. (People v. Tarkington, supra, 49 Cal.App.5th at p. 899,
review granted.) The guilty verdict shows the jury found beyond a reasonable doubt that
he was the actual killer, and personally used a firearm in the murder. Thus, the record
establishes defendant was the actual killer. (See Cornelius, supra, 44 Cal.App.5th 54,
review granted.) We also note, in line with the jury’s verdict, defendant’s form petition
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did not aver he was not the actual killer. As the trial court correctly concluded, this
murder was not a felony-murder killing, did not involve accomplice liability, and
reflected an intent to kill.
Drayton, supra, 47 Cal.App.5th 965 is not to the contrary. In Drayton, the trial
court evaluated the evidence offered at the preliminary hearing, and making a credibility
determination against defendant, determined that the defendant was a major participant in
the underlying felony who acted with reckless indifference to human life. (Id. at pp. 981-
982.) Engaging in such factfinding prior to issuing an order to show cause was error.
(Id. at p. 982.) There was no dispute that the defendant in Drayton was not the actual
killer and did not intend to kill. (Id. at p. 973.)
In contrast to what occurred in Drayton, the trial court here did not engage in any
factfinding. Rather, it relied on our prior opinion and other portions of the record of
conviction, such as the abstract of judgment and the information, and found defendant
ineligible for section 1170.95 relief as a matter of law. There was no dispute that
defendant here was the actual killer. The statute’s remaining procedural requirements
were accordingly inapplicable. (People v. Offley, supra, 48 Cal.App.5th at p. 597.)
Because defendant was the actual killer, defendant is ineligible for resentencing as
a matter of law under section 1170.95. He simply does not come within the provisions of
the statute. No further briefing or evidence could aid the court in reaching this
conclusion. 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, . . . 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.) The trial court’s summary denial of the
petition was thus proper.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is affirmed.
\s\ ,
BLEASE, Acting P. J.
We concur:
\s\ ,
MURRAY, J.
\s\ ,
RENNER, J.
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