People v. Simms CA2/2

Filed 7/2/21 P. v. Simms 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B304577

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA050222)
v.

ERNEST SIMMS et al.,

Defendants and Appellants.

APPEALS from orders of the Superior Court of Los Angeles
County. Victor D. Martinez, Judge. Reversed and remanded
with directions.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant Simms.
Leonard J. Klaif, under appointment by the Court of
Appeal, for Defendant and Appellant Hill.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Amanda V.
Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
 Ernest Simms and Brian Hill appeal the summary denial of
their petitions for resentencing under Penal Code1 section
1170.95. Appellants maintain that because they made a prima
facie showing that they are entitled to relief under the statute,
the superior court was obligated to issue an order to show cause
pursuant to section 1170.95, subdivision (c), and conduct an
evidentiary hearing in accordance with subdivision (d). Instead,
the superior court improperly engaged in fact finding based on
this court’s prior opinion in the direct appeal to determine that
appellants were major participants in the underlying felonies
who acted with reckless indifference to human life and were thus
ineligible for resentencing as a matter of law. We agree that the
superior court erred to the extent it relied upon the prior
appellate opinion to make its own findings of fact at the prima
facie review stage under section 1170.95, subdivision (c).
The error is not harmless. Having taken judicial notice of
the trial record and reviewed the jury’s verdict forms and jury
instructions, we conclude the record of conviction does not
demonstrate appellants are ineligible for relief as a matter of law.
We therefore remand the matter to the superior court for further
proceedings, including the issuance of an order to show cause and
an evidentiary hearing in accordance with section 1170.95,
subdivision (d).2

1 Undesignated statutory references are to the Penal Code.
2 In remanding this matter to the superior court for
proceedings in accordance with section 1170.95, subdivision (d),
“[w]e express no opinion about [appellants’] ultimate entitlement
to relief following the hearing.” (People v. Drayton (2020) 47
Cal.App.5th 965, 983 (Drayton).)

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 FACTUAL AND PROCEDURAL BACKGROUND
A. The murder of Randy Burge3
On February 22, 1990, around 2:00 p.m., Simms
approached Kevin Thomas, who was in his car stopped in traffic.
Simms put a .25 or .32 caliber revolver to the back of Thomas’s
head and ordered him out of the car. Simms then escorted
Thomas at gunpoint to a nearby residence, where they were met
at the back door by codefendant Clifford Jenkins, who also
pointed a .25 or .32 caliber revolver at Thomas’s head. Jenkins
handcuffed Thomas and wrapped tape around his mouth before
leaving the house. Jenkins returned moments later holding
Randy Burge⎯a witness to Thomas’s kidnapping⎯at gunpoint.
Simms told Burge he was “ ‘at the wrong place at the wrong
time.’ ” (Simms, supra, B074209.)
Hill and codefendant Freddie Doss then entered the house
carrying guns: Hill’s was a .25 or .32 caliber revolver and Doss
held a .38 caliber revolver. Simms and Jenkins forced Thomas to
call his mother to demand a $10,000 ransom. After the call,
Jenkins took a ring, keys, and approximately $30 in cash from
Thomas. Burge began asking the men why he was being held.
Simms pointed his gun at Burge and told him to shut up. But
Burge persisted in asking questions and making noise until
Simms shot him in the foot. (Simms, supra, B074209.)

3 The statement of facts is drawn from this court’s decision
filed on January 11, 1996, in appellants’ direct appeal from their
convictions. (People v. Ernest Simms et al. (Jan. 11, 1996,
B074209) [nonpub. opn.] (Simms); People v. Cruz (2017) 15
Cal.App.5th 1105, 1110 [appellate opinion is part of the record of
conviction].)

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 At some point, Simms and Jenkins left the house to secure
the ransom money while Hill and Doss remained guarding
Thomas and Burge at gunpoint. Fearing he was going to be
killed, Thomas threw himself through a closed glass window. He
landed on his back in the driveway and the handcuffs broke. Hill
and Doss fired at least eight to ten shots at Thomas as he ran
down the street. Thomas ducked into a store and hid while a
store employee called the police. (Simms, supra, B074209.)
Around 9:44 p.m. police located Simms and Jenkins near
the house where Thomas and Burge had been held. Both men
fled and were captured by police a short time later. (Simms,
supra, B074209.)
That night around 9:00 p.m. a witness heard a single
gunshot from Centinela Park in Inglewood, approximately 3.9
miles from the residence where Burge and Thomas had been
held. The next morning a jogger discovered Burge’s body
facedown in the park. His hands were handcuffed behind his
back and a rolled-up T-shirt was stuffed in his mouth. Burge had
been fatally shot execution-style with a single round from a .38
caliber firearm, resulting in a contact wound to his head behind
the ear. He had also suffered a gunshot wound to his foot from a
.22 caliber handgun. The coroner estimated the time of death
between 8:00 and 9:00 p.m. on February 22, 1990. (Simms,
supra, B074209.)
B. Relevant proceedings
Following a jury trial, Simms and Hill (along with
codefendants Jenkins and Doss) were convicted of the first degree
murder of Randy Burge (§ 187, subd. (a); count I), among other

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offenses.4 The jury also found true two special circumstance
allegations against Hill (as well as Doss) that the murder was
committed during the commission of a robbery, a kidnapping, and
a kidnapping for ransom. (§ 190.2, subd. (a)(17).) (Simms, supra,
B074209.) At sentencing, the trial court struck the special
circumstance findings, stating its intent to sentence all of the
defendants identically. The court sentenced Simms and Hill to a
term of 25 years to life for the first degree murder of Burge, plus
a consecutive term of four years for the personal firearm use
enhancement, for a principal term of 29 years to life.5 (Simms,
supra, B074209.) This court affirmed the judgments of conviction
in an unpublished opinion filed January 11, 1996. (Simms,
supra, B074209.)
Hill and Simms filed petitions for resentencing under
section 1170.95 on March 11, 2019, and July 11, 2019,

4 Appellants were also convicted of the kidnapping of Burge
for robbery (§ 209, subd. (b); count II), the kidnapping of Thomas
for ransom (§ 209, subd. (a); count III), conspiracy to commit the
crime of kidnapping for ransom of Thomas, with true findings on
five of the alleged overt acts (§§ 182/209, subd. (a); count IV), the
robbery of Thomas (§ 211, subd. (a); count V), and the attempted
willful, deliberate, and premeditated murder of Thomas
(§§ 664/187, subd. (a); count VI). The jury found true the
personal use of a firearm allegation as to all defendants on counts
I through VI. (Simms, supra, B074209.)
5Appellants’ sentences also included a consecutive
subordinate term of life with the possibility of parole for the
attempted murder of Thomas (count VI), and stayed sentences
under section 654 of life with the possibility of parole for the two
kidnapping charges and the conspiracy to commit kidnapping
charge. (Simms, supra, B074209.)

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respectively. The superior court appointed counsel, and the
district attorney filed opposition to both petitions. On
January 28, 2020, the parties submitted on the briefs, and the
superior court denied the petitions without issuing an order to
show cause. Relying on this court’s prior opinion in the direct
appeal and the People’s opposition, the superior court summarily
denied the petitions on the ground that Hill and Simms were
major participants who acted with reckless disregard for human
life, and they had therefore failed to state a prima facie case for
relief under section 1170.95, subdivision (c).
DISCUSSION
The Superior Court Summarily Denied
Appellants’ Section 1170.95 Petitions in Error
A. Applicable law
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 (Gentile); People v.
Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)
With one narrow exception (where the victim was a peace
officer killed in the performance of duty and the defendant knew
or reasonably should have known that fact (§ 1170.95, subd. (f)),
“Senate Bill 1437 effectively eliminates murder convictions
premised on any theory of vicarious liability—that is, any theory
by which a person can be convicted of murder for a killing
committed by someone else (such as the felony-murder theory or

6
the natural and probable consequences theory)—unless the
People also prove that the nonkiller defendant personally acted
with the intent to kill or was a major participant who acted with
reckless disregard to human life.” (People v. Fortman (2021) 64
Cal.App.5th 217, 222–223 (Fortman); § 188, subd. (a)(3)
[amending natural and probable consequences doctrine to require
that all principals act with express or implied malice to be
convicted of murder (with the exception of felony murder under
§ 189, subd. (e)]; § 189, subd. (e) [requiring that participant in
specified felony during which a death occurs may be convicted of
murder only if he/she was the actual killer, an aider and abettor
who acted with intent to kill, or a major participant in the
underlying felony who acted with reckless indifference to human
life]; Gentile, supra, 10 Cal.5th at pp. 842–843.)
Senate Bill No. 1437 also added section 1170.95 to provide
a procedure by which those convicted of felony murder or murder
under a natural and probable consequences theory may seek
retroactive relief if they could no longer be convicted of murder
because of the changes to sections 188 or 189. (Gentile, supra, 10
Cal.5th at p. 843; Fortman, supra, 64 Cal.App.5th at p. 223;
Martinez, supra, 31 Cal.App.5th at pp. 722–723.)
Subdivision (a) of section 1170.95 sets forth the three
conditions for eligibility for relief.6 Subdivision (b) in turn

6 Those conditions are: (1) the charging document “allowed
the 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

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“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).” (Drayton, supra, 47 Cal.App.5th at
p. 973.) If a petition for resentencing under section 1170.95
meets the requirements of subdivisions (a) and (b), the superior
court conducts the analysis prescribed in subdivision (c) before
issuing an order to show cause.7 (Drayton, at pp. 974–975; People
v. Verdugo (2020) 44 Cal.App.5th 320, 327–328, review granted
Mar. 18, 2020, S260493 (Verdugo); People v. Lewis (2020) 43
Cal.App.5th 1128, 1136, 1140, review granted Mar. 18, 2020,
S260598 (Lewis).) At this initial stage, the superior court may
examine readily ascertainable information in the record of
conviction as it conducts a preliminary screening of the petition
to verify the petitioner’s eligibility for relief under the statute.
(Lewis, at p. 1140, rev.gr.; Verdugo, at p. 329, rev.gr.; People v.
Offley (2020) 48 Cal.App.5th 588, 597; People v. Edwards (2020)
48 Cal.App.5th 666, 674–675, review granted July 8, 2020,

January 1, 2019.” (§ 1170.95, subd. (a); Drayton, supra, 47
Cal.App.5th at p. 973.)
7 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.”

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S262481; People v. Tarkington (2020) 49 Cal.App.5th 892, 900,
review granted Aug. 12, 2020, S263219.)
If the initial screening of the record of conviction does not
indicate ineligibility as a matter of law, the superior court must
appoint counsel (if requested) and accept briefing from the
parties on the issue of whether the petitioner is “ ‘entitled to
relief.’ ” (Drayton, supra, 47 Cal.App.5th at p. 976; Verdugo,
supra, 44 Cal.App.5th at pp. 332–333, rev.gr.) At this stage, with
the benefit of the parties’ briefing, the superior court may conduct
a more thorough review of the record, including the jury
instructions, verdict form(s), and any special findings or
enhancement allegations the jury found true to determine if the
petition makes a prima facie showing of entitlement to relief.
(People v. Duchine (2021) 60 Cal.App.5th 798, 815 (Duchine);
People v. Gomez (2020) 52 Cal.App.5th 1, 16, review granted
Oct. 14, 2020, S264033; see Verdugo, at pp. 335–336, rev.gr.)
In conducting its prima facie review under section 1170.95,
subdivision (c), however, the superior court does not engage in
factfinding. Rather, the court must “assume all facts stated in
the section 1170.95 petition are true” (Drayton, supra, 47
Cal.App.5th at p. 980) and draw “all factual inferences in favor of
the petitioner” (Verdugo, supra, 44 Cal.App.5th at p. 329, rev.gr.;
Drayton, at pp. 968, 982). The superior court’s authority to make
determinations without issuing an order to show cause and
proceeding in accordance with section 1170.95, subdivision (d) is
thus circumscribed by “readily ascertainable facts from the record
(such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion
(such as determining whether the petitioner showed reckless

9
indifference to human life in the commission of the crime).”
(Drayton, at p. 980; Duchine, supra, 60 Cal.App.5th at p. 813.)
If, after the parties’ briefing, the petitioner has made a
prima facie showing that he is entitled to relief because there
remains no proof of ineligibility as a matter of law, “the court
shall issue an order to show cause” why relief should not be
granted. (§ 1170.95, subd. (c), italics added; Drayton, supra, 47
Cal.App.5th at p. 980; see Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 851 [“A prima facie showing is one that is
sufficient to support the position of the party in question”]; In re
Edward H. (1996) 43 Cal.App.4th 584, 593 [“A ‘prima facie’
showing refers to those facts which will sustain a favorable
decision if the evidence submitted in support of the allegations by
the petitioner is credited”].) However, “true factfinding should be
reserved and exercised only after an order to show cause is issued
and the parties are permitted to supplement the record with new
evidence, including, if requested, through an evidentiary hearing”
(Duchine, supra, 60 Cal.App.5th at p. 815) at which it is the
prosecution’s burden to prove, beyond a reasonable doubt, that
the petitioner is ineligible for resentencing (§ 1170.95, subd.
(d)(3); Drayton, supra, 47 Cal.App.5th at p. 981).
B. The record of conviction does not establish
appellants’ ineligibility for relief under section 1170.95 as
a matter of law8
Appellants alleged facts sufficient to state a prima facie
case entitling them to relief, and the superior court erred in

8 We have previously held that a superior court may deny a
section 1170.95 petition after the prima facie review on the

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making its own findings of fact at the prima facie review stage of
the section 1170.95 proceeding without issuing an order to show
cause and conducting an evidentiary hearing. Specifically, the
superior court relied on the prior appellate opinion to conclude

ground that a defendant convicted of murder with a felony-
murder special-circumstance finding (§ 190.2, subd. (a)(17)) is
ineligible as a matter of law for resentencing under section
1170.95. (People v. Nunez (2020) 57 Cal.App.5th 78, review
granted Jan. 13, 2021, S265918.) The rationale for our holding in
Nunez lay in the instructions to the jury that in order to find the
felony-murder special-circumstance allegation true, the jury had
to find beyond a reasonable doubt that the defendant intended to
kill or was a major participant in the underlying felony who acted
with reckless indifference to human life. (Nunez, at p. 91.)
In Hill’s case, the jury found true two special-circumstance
allegations under section 190.2, subdivision (a)(17), and although
the trial court struck the special-circumstance findings for
purposes of sentencing, the court’s action did not abrogate the
jury’s findings. (See People v. Brooks (2017) 3 Cal.5th 1, 120
[facts underlying a vacated special-circumstance finding remain
circumstances of the crime of which defendant was convicted].)
Our holding in Nunez would therefore ordinarily preclude Hill
from making the requisite eligibility showing as a matter of law.
However, the jury instructions given in this case did not⎯as a
condition to finding the special-circumstance allegations
true⎯require the jury to find Hill had the intent to kill or was a
major participant in the underlying felonies who acted with
reckless indifference to human life. Accordingly, the jury’s
special-circumstance findings do not constitute a unanimous jury
finding beyond a reasonable doubt that Hill intended to kill or
was a major participant who acted with reckless indifference to
human life. In the absence of such a jury finding, Hill’s special
circumstances do not, as a matter of law, bar relief under section
1170.95.

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that appellants are ineligible for relief as major participants in
the underlying crimes who acted with reckless indifference to
human life. As the Duchine and Drayton courts observed,
however, “[t]he major participant and reckless indifference
findings the trial court made based solely on the record evidence
entail the weighing of evidence, drawing of inferences, and
assessment of credibility that should be left to the factfinding
hearing process contemplated by section 1170.95,
subdivision (d).” (Duchine, supra, 60 Cal.App.5th at p. 816;
Drayton, supra, 47 Cal.App.5th at p. 982.) At the prima facie
review stage of a section 1170.95 proceeding, such judicial
factfinding is prohibited.
The error is not harmless because the record of conviction
does not establish appellants’ ineligibility for relief under section
1170.95 as a matter of law. The Attorney General resists this
conclusion by asserting that appellants’ first degree murder
convictions were not based on a felony-murder theory or the
doctrine of natural and probable consequences at all, but on the
theory that they and their codefendants acted with actual malice.
In support of the contention, respondent points to the prior
appellate decision, which in turn relied on the jury’s preprinted
general verdict forms9 to declare that “the jury convicted each
appellant of willful, premeditated and deliberate first degree
murder.” (Simms, supra, B074209.) However, because the
presence of the “willful, deliberate, and premeditated” language

9The preprinted verdict forms stated that the jury found
“the Defendant [Simms/Jenkins/Doss/Hill] guilty of the crime of
the WILLFUL, DELIBERATE, AND PREMEDITATED
MURDER OF RANDY BURGE.”

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on the preprinted general verdict form does not represent an
actual finding by the jury that appellants committed willful,
deliberate, and premeditated murder, it does not establish the
jury’s rejection of felony murder or natural and probable
consequences as the theory underlying appellants’ first degree
murder convictions. In short, the record of conviction does not
eliminate the possibility that the jury found appellants guilty of
first degree murder under a felony-murder or natural and
probable consequences theory, and thus does not “ ‘show as a
matter of law that [appellants are] not eligible for relief.’ ”
(Lewis, supra, 43 Cal.App.5th at p. 1138, italics added.)
The language on a verdict form is to be “ ‘ “ ‘construed in
light of the issues submitted to the jury and the instructions of
the court,’ ” ’ ” and is not always dispositive of the jury’s findings.
(People v. Camacho (2009) 171 Cal.App.4th 1269, 1272, quoting
People v. Jones (1997) 58 Cal.App.4th 693, 710.) The jury in this
case was instructed it could convict the defendants of first degree
murder on the theories of willful, deliberate, premeditated
murder, felony murder, or under the doctrine of natural and
probable consequences.10 In argument to the jury the prosecutor

10 Specifically, the trial court instructed the jury on aider
and abettor liability for murder based on natural and probable
consequences (CALJIC No. 3.02), coconspirator liability for
murder based on natural and probable consequences (CALJIC
No. 6.11 (1991 rev.)), murder based on the unlawful killing of a
human being with malice aforethought or during the commission
or attempted commission of a robbery (CALJIC No. 8.10), willful,
deliberate, and premeditated murder (CALJIC No. 8.20), first
degree felony murder⎯robbery (CALJIC No. 8.21), first degree
felony murder in pursuance of a conspiracy (CALJIC No. 8.26),

13
explained that the defendants were guilty of the first degree
murder of Randy Burge pursuant to any one of four different
theories: (1) willful, deliberate, and premeditated murder;
(2) robbery felony murder, including murder liability for an aider
and abettor to the robbery and/or for a coconspirator in the
robbery; (3) murder liability for an aider and abettor to a
kidnapping if the murder was a natural and probable
consequence of the kidnapping; and (4) murder liability for a
coconspirator in the conspiracy to kidnap Thomas if a natural
and probable consequence of the conspiracy was the killing of a
witness.
The prosecutor emphasized that although a verdict of first
degree murder had to be unanimous, unanimity as to which
theory applied was not necessary for a conviction. This is correct.
As our Supreme Court has explained, “premeditated murder and
felony murder are not different crimes, but are instead alternate
mechanisms of determining liability. Accordingly, ‘as long as
each juror is convinced beyond a reasonable doubt that defendant
is guilty of murder as that offense is defined by statute, it need
not decide unanimously by which theory he is guilty.’ ” (People v.
Scully (2021) 11 Cal.5th 542, 598.) Here, the preprinted general
verdict form by which the jury convicted appellants of first degree
murder included one of four theories of guilt which some, all, or
none of the jurors may have accepted as the basis for the
conviction.
This is not a case where the jury was given several
different guilty verdict forms, each stating a distinct theory of

and first degree felony murder liability of aider and abettor to a
robbery (CALJIC No. 8.27).

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first degree murder—one theory being willful, deliberate, and
premeditated murder, and others presenting the vicarious
liability theories of felony murder and natural and probable
consequences—that would allow us to infer the basis for the
jury’s guilty verdict from its choice of one verdict form over the
others. Instead, the jury was given a single, general guilty
verdict form for the crime of first degree murder that included
one possible theory of first degree murder preprinted on it. (See
§ 189, subd. (a).) Under these circumstances, the inclusion of the
“willful, deliberate, and premeditated” language on the verdict
form does not constitute a jury finding of the specific theory
underlying the verdict, nor does it preclude the possibility that
the jury found appellants guilty of first degree murder under a
felony-murder or natural and probable consequence theory.
Accordingly, the presence of this phrase on the verdict form does
not establish as a matter of law appellants’ ineligibility for relief
under section 1170.95.
Finally, we reject the suggestion that the observation in our
prior opinion that “the jury convicted each appellant of willful,
premediated and deliberate first degree murder” (Simms, supra,
B074209) should elevate the boilerplate language in the general
verdict form to an express finding by the jury. Where, as here,
the instructions and verdict forms presented to the jury
demonstrate there was no such express finding, we need not give
dispositive weight to the language in our prior decision. (See
People v. Woodell (1998) 17 Cal.4th 448, 457 [“not . . . all
appellate opinions” “establish” what happened before the trial
court, and “[w]hether and to what extent an opinion is probative
in a specific case must be decided on the facts of that case”].)

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 DISPOSITION
The postjudgment orders denying Simms’s and Hill’s
petitions for resentencing are reversed. The matters are
remanded to the superior court for the issuance of an order to
show cause and further proceedings in accordance with Penal
Code section 1170.95, subdivision (d).
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

CHAVEZ, J.

HOFFSTADT, J.

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