Filed 6/17/22 P. v. Welch CA2/7
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B300338
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A799639)
v.
ANTHONY LEVELL WELCH,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Michael Garcia, Judge. Reversed and
remanded with directions.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Charles S. Lee,
Ryan M. Smith and Daniel C. Chang, Deputy Attorneys General,
for Plaintiff and Respondent.
______________________
Anthony Levell Welch pleaded no contest to second degree
murder in 1988. In March 2019 Welch petitioned for
resentencing pursuant to Penal Code section 1170.95.1 The
superior court denied the petition without appointing counsel or
holding an evidentiary hearing, finding Welch had been the
shooter during the incident and thus failed to make a prima facie
showing of eligibility for relief.
In our original opinion in this case, based on prior decisions
from this and other courts of appeal, we rejected Welch’s
arguments regarding his right to the immediate appointment of
counsel once a section 1170.95 petition had been filed. Although
expressing concern about the superior court’s failure to articulate
the reasons for its ruling, we concluded, following our review of
the transcript of Welch’s 1988 plea hearing, Welch was ineligible
for resentencing as a matter of law and any error in the superior
court was, therefore, harmless.
After granting Welch’s petition for review, the Supreme
Court transferred the case to us with directions to vacate our
prior decision and reconsider Welch’s appeal in light of People v.
Lewis (2021) 11 Cal.5th 952 (Lewis). In supplemental briefing
Welch, citing several recent court of appeal decisions involving
section 1170.95 petitions for resentencing following guilty or no
contest pleas to murder, argued his plea to second degree murder
did not constitute an admission he had acted with express malice
1 Statutory references are to this code.
2
during the events leading to the murder and, therefore, he was
entitled to an evidentiary hearing to determine whether he was
guilty of murder under California law as amended by the changes
to sections 188 and 189 made effective January 1, 2019. For his
part, without discussing those cases, the Attorney General in his
supplemental brief essentially argued we had correctly
determined Welch was ineligible for resentencing relief as a
matter of law in our original opinion and, notwithstanding
Lewis’s disagreement with our prior analysis of section 1170.95’s
procedural requirements, the superior court’s failures to appoint
counsel and to hold an evidentiary hearing before ruling were
harmless error.
We do not fully agree with either party. Because the
significance of Welch’s conviction of second degree murder
following the trial court’s explanation of the crime is far from
clear at this point, it is reasonably probable his petition would
not have been summarily denied if he had been afforded
assistance of counsel. Accordingly, we reverse the order denying
Welch’s petition and remand for the superior court to appoint
counsel for Welch, direct the prosecutor to file a response to the
petition, permit Welch to file a reply and hold a hearing to
determine whether Welch has made a prima facie case for relief,
as provided in section 1170.95, subdivision (c).
FACTUAL AND PROCEDURAL BACKGROUND
1. Welch’s No Contest Plea
An information filed in 1987 charged Welch with first
degree murder (§ 187) and attempted robbery (§§ 211, 664) with a
special allegation he had used a firearm in committing the
offenses. The police report attached to Welch’s 2016 petition for
writ of habeas corpus stated the victim, Jacques Armstrong, had
3
been shot through the open passenger window of his automobile
by one of a group of men who had approached Armstrong after he
and a friend left a local market, apparently as part of an
attempted carjacking or robbery. Armstrong was identified by a
witness at the scene as the shooter.
At a pretrial hearing on April 12, 1988 the parties indicated
a disposition had been reached, and Welch pleaded no contest to
second degree murder. As reflected in the reporter’s transcript of
that hearing, the trial court explained the People’s theory of the
case was that Welch shot the victim during the course of an
attempted robbery, which would be first degree felony murder.
The court continued, “Ordinarily second degree murder is not
applicable to a felony murder-type situation. But second degree
murder is simply an unlawful killing with what’s called malice
aforethought in this case, which is an intentional killing. Do you
understand?” Welch responded, “Yes, sir.” After describing the
elements of the negotiated agreement, the court asked, “Do you
wish to plead no contest to the charge of second degree murder on
that basis?” Welch responded, “Yes.”
Later during the hearing the court addressed defense
counsel and the prosecutor and noted that, although felony
murder did not require proof of malice, the information against
Welch included an allegation of malice. The court then stated,
“In this case the plea is to murder in the second degree which
does involve malice aforethought. So I don’t see any need to
amend the information. Is the information acceptable to both
counsel as it now reads?” Both Welch’s counsel and the
prosecutor answered, “Yes, your Honor.”
4
The prosecutor then took Welch’s plea of no contest to
second degree murder,2 entered pursuant to People v. West
(1970) 3 Cal.3d 595. The court asked counsel, “Join in the plea
and waivers and stipulate to a factual basis?” Both Welch’s
counsel and the prosecutor answered, “Yes, your Honor.” The
trial court then found, “Defendant’s aware of the charge, the
elements, the allegations, the consequences of his plea, that he’s
knowingly and intelligently waived his constitutional rights,
freely and voluntarily entered into the plea and there is a factual
basis.” It further stated, “Court finds a factual basis based on the
stipulation of counsel. Court is satisfied there is a factual basis
based on the stipulation, which in turn is based on the facts set
out on the record by the court. I’m also satisfied this is an
appropriate West-type plea.” The court accepted the plea.
Pursuant to the negotiated agreement the other charges
and the enhancement allegation were dismissed. Welch was
sentenced to an indeterminate state prison term of 15 years to
life.
2. Welch’s Petition for Resentencing
On March 7, 2019 Welch, representing himself, filed a
petition for resentencing under section 1170.95 and checked
boxes on the printed form petition to establish his eligibility for
2 The prosecutor asked, “Anthony Levee Welch, how do you
plead to count 1 in information number A799639, that on or
about February 5th of 1987 in the County of Los Angeles you
committed the crime of murder in the second degree, a violation
of section 187 of the Penal Code, a felony, that you willfully and
unlawfully, with malice aforethought, murdered Jack Armstrong,
a human being? How do you wish to plead to that?” Welch
responded, “No contest.”
5
relief, including the boxes stating an information had been filed
against him that allowed the prosecution to proceed on a theory
of felony murder or murder under the natural and probable
consequences doctrine and he had pleaded guilty or no contest to
first or second degree murder because he believed he could have
been convicted of murder pursuant to the felony-murder rule or
the natural and probable consequences doctrine. Welch also
checked boxes stating he was convicted of second degree murder
under the natural and probable consequences doctrine or under
the second degree felony-murder rule and could not now be
convicted of murder because of changes to sections 188 and 189
made by Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate
Bill 1437). In a section of the form applicable only to petitioners
who had been convicted under the felony-murder rule, Welch
checked boxes stating he was not the actual killer; he did not,
with the intent to kill, aid or abet the actual killer; and he was
not a major participant in the felony or did not act with reckless
indifference to human life. Welch requested the court appoint
counsel to assist him during the resentencing process.
The superior court denied Welch’s petition for resentencing
on July 5, 2019 outside the presence of Welch (for whom counsel
had not been appointed), the prosecutor or a court reporter. The
minute order stated, “The court has read and considered the
petition for resentencing pursuant to Penal Code
section 1170.95(A). [¶] Based on the evidence of the case, the
court finds the petitioner was the shooter in the murder
conviction; therefore, the petition is denied.”
6
3. Welch’s Appeal, the Petition for Review and the Supreme
Court’s Transfer Order
In an opinion filed November 19, 2020 we affirmed the
order denying Welch’s petition. We rejected Welch’s argument he
was entitled under section 1170.95 to appointment of counsel and
an evidentiary hearing immediately after filing a facially
sufficient petition, holding, as we had in a prior published
decision, the superior court first had to determine as a
preliminary matter whether he had made a prima facie showing
of eligibility for relief. Then, noting the court had stated it
reviewed “the evidence of the case” in concluding Welch was the
actual shooter, we expressed concern that neither the court’s
order nor the record on appeal as provided by the parties
indicated what documents had been reviewed or what
information those documents contained. As such, we generally
agreed with Welch’s argument that, in the absence of anything in
the record to establish his ineligibility for relief as a matter of
law, his declaration he was not the actual killer constituted
prima facie evidence of his eligibility for relief.
Nonetheless, although apparently not readily available to
the parties (or to the superior court), Welch had provided a copy
of the reporter’s transcript of his 1988 plea hearing with a
petition for writ of habeas corpus filed in this court in July 2016.3
3 On our own motion we augmented the record on appeal
with the transcript (Cal. Rules of Court, rule 8.155(a)(1)(B)),
provided the parties with copies of the petition and exhibits and
invited supplemental briefing to address the significance of the
plea hearing transcript. Welch’s appointed counsel filed a
supplemental letter brief, arguing the degree of Welch’s
involvement in the incident, including whether he was the actual
shooter, was neither an adjudicated fact nor a fact that could be
7
Quoting portions of the colloquy set out in the preceding section
of this opinion, we held the transcript established Welch was
convicted pursuant to a negotiated plea agreement of committing
second degree murder with malice aforethought, not felony
murder or murder under a natural and probable consequences
theory as required to be eligible for relief under section 1170.95.
The Supreme Court granted Welch’s petition for review and
deferred briefing pending its decision in People v. Lewis,
S260598. On April 27, 2022, after deciding Lewis, supra,
11 Cal.5th 952, the Supreme Court transferred Welch’s case to us
with directions to vacate our prior decision and to reconsider the
cause in light of Lewis.
In supplemental briefing the Attorney General
acknowledged the superior court erred in denying Welch’s
petition at the prima facie stage without appointing counsel, but
argued the error was harmless because the record of conviction
established Welch was convicted pursuant to a negotiated plea
agreement of committing second degree murder with malice
aforethought, not felony murder or murder under the natural and
probable consequences doctrine, as we had held in our original
opinion.
In his supplemental brief Welch cited People v. Rivera
(2021) 62 Cal.App.5th 217, People v. Eynon (2021) 68 Cal.App.5th
967, People v. Davenport (2021) 71 Cal.App.5th 476 and People v.
Flores (2022) 76 Cal.App.5th 974, decided after our prior opinion
in his case, all of which held a guilty or no contest plea to a
charge of murder does not necessarily bar a petition under
section 1170.95. (E.g., Rivera, at p. 234 [“[B]efore Senate Bill
deduced as a matter of law from the plea hearing transcript or
any other part of the record of conviction.
8
No. 1437 malice could be imputed to a defendant under the
felony-murder rule or the natural and probable consequences
doctrine, meaning that the person did not need to harbor express
or implied malice to be convicted of second degree murder. And
given that the allegation that a murder was committed ‘willfully,
unlawfully, and with malice aforethought’ is a generic charge
permitting the prosecution to proceed on any theory of murder,
we cannot conclude that by admitting to the murder as charged
Rivera admitted that he acted with actual malice, not just that
the element of malice was satisfied”]; Davenport, at p. 484 [“‘[i]t is
undisputed that a conviction of second degree murder does not, in
and of itself, bar a petition under section 1170.95’”].)
Emphasizing his plea had been entered pursuant to People v.
West, Welch urged us to reconsider our prior analysis and
conclude the plea only admitted the charged murder took place
and Welch had committed an act with the necessary intent to
render him liable for that murder under then-existing law, not
that he admitted he had acted with express malice, precluding
resentencing relief.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-
843) and significantly narrowing the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see Lewis, supra, 11 Cal.5th at p. 957.) It also
authorized, through new section 1170.95, an individual convicted
9
of felony murder or murder based on the natural and probable
consequences doctrine to petition the sentencing court to vacate
the conviction and be resentenced on any remaining counts if he
or she could not now be convicted of murder because of Senate
Bill 1437’s changes to the definitions of the crime. (See Lewis, at
p. 957; Gentile, at p. 843.) As amended by Senate Bill No. 775
(Stats. 2021, ch. 551, § 2), effective January 1, 2022, these
ameliorative changes to the law now expressly apply to
attempted murder and voluntary manslaughter.
As the Supreme Court held in Lewis, if the section 1170.95
petition contains all the required information, including a
declaration by the petitioner that he or she is eligible for relief
(§ 1170.95, subd. (b)(1)(A)), the court must appoint counsel to
represent the petitioner, if requested (§ 1170.95, subd. (b)(3)),4
and direct the prosecutor to file a response to the petition, permit
the petitioner to file a reply and determine if the petitioner has
made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c); see Lewis, supra, 11 Cal.5th at pp. 962-963.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “the prima facie inquiry
under subdivision (c) is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, the court takes petitioner’s
4 Prior to enactment of Senate Bill No. 775 the requirement
to appoint counsel was set forth in subdivision (c) of
section 1170.95.
10
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause. . . . 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.” (Id. at
pp. 970-971, internal quotation marks omitted.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder, attempted murder or manslaughter conviction and
resentence the petitioner on any remaining counts. (§ 1170.95,
subd. (d)(1).) At the hearing the prosecutor has the burden of
proving, “beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019.” (§ 1170.95, subd. (d)(3).) The court may consider evidence
previously admitted at any prior hearing or trial “that is
admissible under current law,” including testimony and
stipulated evidence. (Ibid.) The petitioner and the prosecutor
may also offer new or additional evidence. (Ibid.)
2. The Denial of the Petition Before Appointing Counsel
and Providing an Opportunity for Briefing and a
Hearing Was Not Harmless Error
In Lewis, supra, 11 Cal.5th 952 the Supreme Court held,
once a petitioner files a facially sufficient petition requesting
counsel, the superior court must appoint counsel before
performing any prima facie review under section 1170.95,
subdivision (c). As the Attorney General concedes and contrary
to the holding in our prior decision, because Welch checked all
11
the necessary boxes on his form petition, the superior court erred
by denying his petition without first appointing counsel,
authorizing briefing and holding a hearing to determine whether
Welch had made a prima facie case for relief.
The Lewis Court also held a superior court’s failure to
appoint counsel to represent a petitioner when assessing whether
he or she had made a prima facie showing of entitlement to relief
pursuant to section 1170.95, subdivision (c), is state law error
only, tested for prejudice under People v. Watson (1956) 46 Cal.2d
818. (Lewis, supra, 11 Cal.5th at pp. 957-958, 973-974.) More
specifically, Lewis held, “a petitioner ‘whose petition is denied
before an order to show cause issues has the burden of showing
“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. 974.) Welch has made that showing here.
As discussed, the factual allegations in Welch’s petition,
made under penalty of perjury, would entitle him to relief if
proved true. (Cf. People v. Gentile, supra, 10 Cal.5th at p. 847
[section 1170.95 “expressly contemplates that defendants
convicted of second degree murder can avail themselves of Senate
Bill 1437’s ameliorative provisions”].) The issue before us is
whether those allegations are indisputably refuted by the record
of conviction, including the transcript of the plea hearing, thereby
conclusively establishing Welch is ineligible for resentencing
relief.
As Welch argued in his supplemental briefing, a number of
court of appeal decisions since our original opinion in this case
have held a conviction for murder following a guilty or no contest
plea does not inevitably preclude resentencing relief under
12
section 1170.95 because a plea is not necessarily an admission
the crime was committed with actual malice. (E.g., People v.
Rivera, supra, 62 Cal.App.5th at p. 224.) As the court explained
in People v. Flores, supra, 76 Cal.App.5th at page 987, “In the
plea context, a petitioner convicted of murder is ineligible for
resentencing if the record establishes, as a matter of law, that
(1) the complaint, information, or indictment did not allow the
prosecution to proceed under a theory of felony murder, murder
under the natural and probable consequences doctrine, or
another theory of imputed malice; (2) the petitioner was not
convicted under such theory; or (3) the petitioner could presently
be convicted of murder or attempted murder under the law as
amended by Senate Bill No. 1437.” Reversing the superior court’s
summary denial of the resentencing petition, the Flores court
continued, “Here, petitioner pled no contest to second degree
murder. [Citation.] Furthermore, the first amended information
charged petitioner generically with murder, and did not specify or
exclude any particular theory of murder. [Citation.] In entering
his plea, petitioner did not admit to or stipulate to any particular
theory of murder. Neither the charge nor the plea excludes
petitioner from resentencing eligibility as a matter of law.”
(Ibid.)
Similarly, in People v. Eynon, supra, 68 Cal.App.5th 967,
which involved a plea to first degree murder, the court explained
a generic murder charge allowed the prosecution to proceed on
any theory of liability, including natural and probable
consequences or felony murder. “Accordingly, by pleading guilty
and admitting that he did ‘what Count 1 of th[e] Information says
[he] did, when it says [he] did it,’ Eynon did not admit that he
acted with malice. Rather, he admitted that the charged murder
13
took place and that he committed an act with the necessary
intent to render him liable for that murder under then-existing
law. Then-existing law did not require him to act with malice in
order to be liable for murder, so his plea and factual admissions
did not encompass an admission that he acted with malice.” (Id.
at pp. 977-978.) Emphasizing the point, the court repeated the
petitioner’s admissions a deliberate and premeditated murder
had been committed and he had acted with the necessary intent
to incur liability for that murder, on some unspecified theory, did
not constitute an admission “he acted with deliberation and
premeditation, let alone that he acted with deliberate and
premeditated intent to kill.” (Id. at p. 978.) Nor did the guilty
plea and admission that Eynon committed first degree deliberate
and premeditated murder exclude the possibility that his
conviction was based on the natural and probable consequences
doctrine. (Ibid.)
Yet recent case law also recognizes that, “[i]n some cases,
the record may reveal that the defendant admitted more than the
elements of the offense charged, and some additional admissions
may preclude relief under section 1170.95.” (People v. Rivera,
supra, 62 Cal.App.5th at p. 234.) That may be the situation here.
Although the information charged murder in generic terms,
as was true in the cases relied upon by Welch, the extended
colloquy among the court, the prosecutor, Welch and Welch’s
counsel appeared not only to exclude the felony-murder rule as a
theory for murder liability but also to define the basis for Welch’s
conviction of second degree murder as express malice murder.
Even accepting that reading of the plea hearing transcript,
however, Welch’s plea was entered pursuant to People v. West,
supra, 3 Cal.3d 595, which he describes as allowing a defendant
14
to plead to a charge without admitting he or she committed the
crime alleged. (See, e.g., People v. Riddles (2017) 9 Cal.App.5th
1248, 1250, fn. 1; People v. Rauen (2011) 201 Cal.App.4th 421,
424; cf. In re Alvernaz (1992) 2 Cal.4th 924, 932 [describing
People v. West as involving “a plea of nolo contendere, not
admitting a factual basis for the plea”].)5
Two slightly different, but equally important, questions are
presented by the limited record before us. First, after stating he
understood the nature of the second degree murder charge at
issue, did Welch admit he acted with express malice by entering a
no contest plea? (See People v. French (2008) 43 Cal.4th 36, 49
[plea of no contest admits the elements of the crime, but does not
constitute an admission of any aggravating circumstances].) If he
did, whether he was the actual shooter or a direct aider and
abettor of the shooter, he is guilty of murder under current law
(see People v. Gentile, supra, 10 Cal.5th at p. 848 [“Senate Bill
1437 does not eliminate direct aiding and abetting liability for
murder because a direct aider and abettor to murder must
possess malice aforethought”]), and, as the Attorney General
contends, ineligible for resentencing.
Second, even if Welch did not admit the elements of express
malice murder, was he, in fact, convicted of that crime, which
would make him ineligible for resentencing because it would
mean he was not “convicted of felony murder or murder under the
natural and probable consequences doctrine or other theory
under which malice is imputed to a person based solely on the
5 The court in People v. Rauen, supra, 201 Cal.App.4th at
page 424, footnote 1, noted, “West did not actually involve a claim
of innocence but addressed the validity of a plea to an uncharged
lesser offense entered pursuant to a plea bargain.”
15
person’s participation in a crime,” section 1170.95,
subdivision (a)’s threshold requirement for resentencing relief?
Or, notwithstanding the trial court’s explanation of the offense,
was it still possible that Welch’s conviction was predicated on the
natural and probable consequences doctrine, with the attempted
robbery the target offense and murder the nontarget offense,
unquestionably a viable theory in 1988 when Welch entered his
plea? (See People v. Eynon, supra, 68 Cal.App.5th at p. 978
[petitioner’s admission he had committed first degree deliberate
and premeditated murder did not “exclude the possibility that his
conviction was based on the natural and probable consequences
doctrine”]; see generally People v. Chiu (2014) 59 Cal.4th 155, 166
[“punishment for second degree murder is commensurate with a
defendant’s culpability for aiding and abetting a target crime that
would naturally, probably, and foreseeably result in a murder
under the natural and probable consequences doctrine”].)
These issues—essential to a determination whether Welch
made a prima facie showing he is entitled to relief—are properly
addressed in the first instance by the superior court following a
hearing, as mandated by section 1170.95, subdivision (c), once
counsel is appointed for Welch, that counsel has a sufficient
opportunity to gather and review materials constituting the
record of conviction (most of which were not before the superior
court when it made its initial ruling), and the matter has been
briefed by appointed counsel and the prosecutor.
16
DISPOSITION
The postjudgment order denying Welch’s petition for
resentencing is reversed, and the cause remanded with directions
to appoint counsel for Welch and to proceed with briefing and a
hearing to determine whether Welch has made a prima facie case
for relief, as provided in section 1170.95, subdivision (c).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
17