IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT
DIVISION ONE
Plaintiff and Respondent,
(Los Angeles County Superior Court, Case No. VA092410)
Appeal from the Order of The Superior Court of Los Angeles County
The Honorable John Torribio, Judge Presiding ______________________________
APPELLANT DANA OFFLEY’S OPENING BRIEF
Joshua L. Siegel, Attorney at Law State Bar Number 262941 171 Pier Ave., # 314 Santa Monica, CA 90405 (310) 463-5346 siegel.joshua@gmail.com Attorney for appellant Dana Offley
TABLE OF CONTENTS
STATEMENT OF APPEALABILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
APPELLANT’S PETITION FOR RESENTENCING WITHOUT APPOINTING
COUNSEL FOR APPELLANT, AND WITHOUT GIVING THE PARTIES THE
OPPORTUNITY TO FILE ADDITIONAL BRIEFING ON THE PETITION. . 13
A. Introduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
B. Factual Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
D. The Trial Court Erred under State Law by Summarily Denying Appellant’s Petition Without Appointing Counsel for Appellant and Giving the Parties the Opportunity to File Additional Briefing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
E. The Trial Court’s Summary Denial of Appellant’s Petition Deprived Appellant of His Federal Constitutional Rights to Due Process and the Assistance of Counsel. . . . . . . . . . . . 29
2
F. The Order Denying Appellant’s Petition must Be Reversed, and the Case must Be Remanded for the Trial Court to Appoint Counsel for Appellant and to Allow the Parties the Opportunity to File Additional Briefing on Appellant’s Petition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
G. Appellant Joins in the Arguments Raised in Co-appellant Keller’s Opening Brief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
CONCLUSION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Ammerman v. Callender (2016) 245 Cal.App.4th 1058. . . . . . . . 26
Bell v. Cone (2002) 535 U.S. 685 [122 S.Ct. 1843, 152 L.Ed.2d 914]. . . . . . . . . 29
Briggs v. Brown (2017) 3 Cal.5th 808. . . . . . . . . . . . . . . . . . . . . . 27
Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. . . . . . . . . . 35-37
Diamond v. Superior Court (2013) 217 Cal.App.4th 1172. . . . . . 25
Hewitt v. Helms (1983) 459 U.S. 460 [103 S.Ct. 864, 74 L.Ed.2d 675]. . . . . . . . . . . 32
Hicks v. Oklahoma (1980) 447 U.S. 343 [100 S.Ct. 2227, 65 L.Ed.2d 175]. . . . . . . . . . 32
In re Bennett (2018) 26 Cal.App.5th 1002. . . . . . . . . . . . . . . . . . . 41
In re Stevenson (2013) 213 Cal.App.4th 841. . . . . . . . . . . . . . . . . 24
4
Marshall v. Rodgers (2013) 569 US 58 [185 L.Ed.2d 540, 133 S.Ct. 1446, 1449]. . . . . . 29
Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152 [145 L.Ed.2d 597, 120 S.Ct. 684]. . . . 31
Mempa v. Rhay (1967) 389 U.S. 128 [19 L.Ed.2d 336, 88 S.Ct. 254]. . . . . . . . . . . . 29
People v. Banks (2015) 61 Cal.4th 788.. . . . . . . . . . . . . . . . . . . . . 22
People v. Bland (2002) 28 Cal.4th 313. . . . . . . . . . . . . . . . . . . . . . 17
People v. Bryant (2013) 56 Cal.4th 959. . . . . . . . . . . . . . . . . . . . . 20
People v. Bryant, Smith, and Wheeler (2014) 60 Cal.4th 335.. . . 42
People v. Chiu (2014) 59 Cal.4th 155. . . . . . . . . . . . . . . . . . . . 21, 38
People v. Clark (2016) 63 Cal.4th 522. . . . . . . . . . . . . . . . . . . 22, 41
People v. Doolin (2009) 45 Cal.4th 390. . . . . . . . . . . . . . . . . . . . . 29
People v. Favor (2012) 54 Cal.4th 868. . . . . . . . . . . . . . . . . . . . . . 38
People v. Frausto (2009) 180 Cal.App.4th 890.. . . . . . . . . . . . . . . 40
People v. Fryhaat (May 31, 2019, E070847) ___ Cal.App.5th ___.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
People v. Gentile (May 30, 2019, E069088) ___ Cal.App.5th ___.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
People v. Gutierrez (2002) 28 Cal.4th 1083. . . . . . . . . . . . . . . 20, 38
5
People v. Johnson (1993) 6 Cal.4th 1. . . . . . . . . . . . . . . . . . . . . . . 35
People v. Keller, et al., (Nov. 25, 2008, B199617) [nonpub. opn.]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
People v. Lee (2003) 31 Cal.4th 613. . . . . . . . . . . . . . . . . . . . . . . . 38
People v. Lucero (2016) 246 Cal.App.4th 750. . . . . . . . . . . . . . . . 40
People v. Martinez (2019) 31 Cal.App.5th 719.. . . . . . . . . . . . 21, 23
People v. Oates (2004) 32 Cal.4th 1048. . . . . . . . . . . . . . . . . . . . . 40
People v. Palmer (2005) 133 Cal.App.4th 1141. . . . . . . . . . . . . . . 17
People v. Reese (2017) 2 Cal.5th 660. . . . . . . . . . . . . . . . . . . . . . . 33
People v. Rocha (2019) 32 Cal.App.5th 352. . . . . . . . . . . . . . . . . . 36
People v. Rouse (2016) 245 Cal.App.4th 292. . . . . . . . . . . 29-31, 34
People v. Ruiz (2018) 4 Cal.5th 1100. . . . . . . . . . . . . . . . . . . . . . . 25
People v. Scott (1998) 64 Cal.App.4th 550. . . . . . . . . . . . . . . . . . . 31
People v. Sivongxxay (2017) 3 Cal.5th 151. . . . . . . . . . . . . . . . . . 34
People v. Watson (1956) 46 Cal.2d 818.. . . . . . . . . . . . . . . . . . 36, 37
People v. Wilkins (2013) 56 Cal.4th 333.. . . . . . . . . . . . . . . . . . . . 36
People v. Zarazua (2008) 162 Cal.App.4th 1348. . . . . . . . . . . 17, 41
Prieto v. Clarke (4th Cir. 2015) 780 F.3d 245. . . . . . . . . . . . . . . . 32
6
Shinault v. Hawks (9th Cir. 2015) 782 F.3d 1053.. . . . . . . . . . . . 32
Sullivan v. Louisiana (1993) 508 U.S. 275 [124 L.Ed.2d 182, 113 S.Ct. 2078]. . . . . . . . . 35
Teal v. Superior Court (2014) 60 Cal.4th 595. . . . . . . . . . . . . . . . . 9
Wilkinson v. Austin (2005) 545 U.S. 209 [125 S.Ct. 2384, 162 L.Ed.2d 174]. . . . . . . . . 32
Wolff v. McDonnell (1974) 418 U.S. 539 [94 S.Ct. 2963, 41 L.Ed.2d 935]. . . . . . . . . . . 32
Penal Code sections
190. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
190.2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
246. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1118.1.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1170.95.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
4.551.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
8.200.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.360.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
8.385.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Miscellaneous Authorities
Couzens, Accomplice Liability for Murder (SB 1437) (Jan. 2019). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Legis. Counsel's Dig., Sen. Bill No. 1437 (2017-2018 Reg. Sess.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Stats. 2018, c. 1015. S.B. 1437 § 1. . . . . . . . . . . . . . . . . . . . . . . . . 28
8
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT
DIVISION ONE
Plaintiff and Respondent,
APPELLANT DANA OFFLEY’S OPENING BRIEF
STATEMENT OF APPEALABILITY
This is an appeal from the denial of appellant’s petition for
resentencing under section 1170.95, and is authorized by section1
1237, subdivision (b). (See Teal v. Superior Court (2014) 60
Cal.4th 595, 596.)
STATEMENT OF THE CASE
An amended information was filed on April 25, 2006, in the
Los Angeles County Superior Court, charging appellant Offley
and co-appellant Keller with murder (§ 187; count one), willful,
deliberate, and premeditated attempted murder (§§ 187, 664,
subd. (a); count two), and shooting at an occupied vehicle (§ 246;
1
9
count three). The information further alleged as to counts one
through three that these counts were gang-related (§ 186.22,
subd. (b)), that appellant personally discharged a firearm causing
great bodily injury and death (§ 12022.53, subds. (b)-(d)), and that
a principal discharged a firearm causing great bodily injury and
death (§ 12022.53, subds. (b)-(e)). (1 CT 1-8.)2
The jury found appellant guilty of second degree murder in3
count one and guilty of the charged offenses in counts two and
three. The jury also found the charged enhancements true. (1 CT
9-18; see also People v. Keller, et al., (Nov. 25, 2008, B199617)
[nonpub. opn.] [at pp. 2-3] [opinion in appellants’ prior appeal].)4
2
The information also charged three other co-defendants who are not parties to the within appeal, and alleged three additional counts against some of these other co-defendants. (1 CT 1-8.)
3
The minutes erroneously state that appellant was convicted of first degree murder in count one. (1 CT 9-19.) The Abstract of Judgment (1 CT 58-59), the minutes of the sentencing hearing (1 CT 53-55), the 15-years-to-life sentence imposed in this count (see § 190, subd. (a)), and this court’s opinion in appellant’s prior appeal (People v. Keller, et al., (Nov. 25, 2008, B199617) [nonpub. opn.] [at pp. 2-3]), all make clear that appellant was convicted of second degree murder in count one.
4
The jury found Keller guilty of first degree murder in count one, and guilty of the charged offenses in counts two and three. The jury also found the charged enhancements true as to Keller. (1 CT
10
The trial court sentenced appellant to a total of 80 years to
life, consisting of 15 years to life each in counts one and two, and
an additional 25 years to life for the firearm use enhancements in
both of these counts. The trial court also imposed and stayed a 5
year sentence in count three. (1 CT 53-55, 58-59.)
In appellants’ prior appeal, this court modified the
judgment to correct the applicable fees, and affirmed the
judgment as modified. As to co-appellant Keller, this court also
struck the gang enhancement in count one. (See People v. Keller,
et al., supra, (Nov. 25, 2008, B199617) [nonpub. opn.] [at pp. 2-6].)
On January 24, 2019, appellants each filed petitions for
resentencing under section 1170.95. (1 CT 60-64 [co-appellant
Keller’s petition], 65-77 [appellant’s petition].)
The trial court summarily denied appellants’ petitions. (1
CT 80-81 [minute order denying co-appellant Keller’s petition],
82-83 [minute order denying appellant’s petition].)
Appellants filed timely notices of appeal from the denial of
their petitions. (1 CT 84-86 [co-appellant Keller’s notice of
appeal], 87-89 [appellant’s notice of appeal].)
9-15.)
11
According to appellant’s probation report, the charges arose
from an incident in which one or more of the charged defendants
allegedly fired multiple gunshots, some of which struck Alex
Barrales (count one) and Pedro Portillo (count two) while they
were in a vehicle (count three). (See 1 CT 36-38.)
5
Because the trial court summarily denied appellant’s petition for resentencing under section 1170.95, there was no new evidence presented in connection with the petition. And because appellant’s prior appeal only raised issues related to appellant’s sentence, this court’s prior opinion does not contain a detailed statement of the underlying facts. (See People v. Keller, et al., supra, (Nov. 25, 2008, B199617) [nonpub. opn.] [at pp. 2-3].)
12
ARGUMENT
APPELLANT’S FEDERAL CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND THE ASSISTANCE OF COUNSEL, BY SUMMARILY
DENYING APPELLANT’S PETITION FOR RESENTENCING WITHOUT
APPOINTING COUNSEL FOR APPELLANT, AND WITHOUT GIVING
THE PARTIES THE OPPORTUNITY TO FILE ADDITIONAL BRIEFING
ON THE PETITION.
contained the necessary allegations under section 1170.95,
subdivision (b)(1), and specifically requested that counsel be
appointed. (1 CT 66-77.) The trial court nevertheless denied
appellant’s petition without appointing counsel for appellant, and
without giving the parties the opportunity to file additional
briefing on appellant’s petition. (1 CT 82-83.)
As will be shown, the trial court erred under state law, and
violated appellant’s federal constitutional rights to due process
and to the assistance of counsel (U.S. Const., 5th, 6th, & 14th
Amends.), by summarily denying appellant’s petition without
first appointing counsel for appellant and allowing the parties the
opportunity to file additional briefing on appellant’s petition. (See
§ 1170.95, subd. (c) [“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
13
service of the petition and the petitioner may file and serve a
reply within 30 days after the prosecutor response is served.”].)
This error was also prejudicial because if the court had properly
appointed counsel for appellant and allowed the parties the
opportunity to file additional briefing on appellant’s petition
before deciding whether appellant stated a prima facie case for
relief, there is at least a reasonable chance that the trial court
would have granted appellant’s petition.
Nor do the jury’s findings at trial necessarily show that
appellant was ineligible for relief because the murder and
attempted murder convictions could have been based on felony
murder and/or natural-and-probable-consequence theories, the
premeditation and deliberation allegation under section 664,
subdivision (a), did not require that appellant personally acted
with those mental states, and this court never resolved
appellant’s claim that there was legally insufficient evidence to
prove that he personally discharged a firearm under section
12022.53, subdivision (d). (See People v. Keller, et al., supra, (Nov.
25, 2008, B199617) [nonpub. opn.] [at pp. 3-4]; see also 1 CT 71-73
[at trial, trial court and prosecutor both agreed that appellant
could not have been the person who fired the shot that struck the
decedent].)
14
petition must therefore be reversed, and the case must be
remanded for further proceedings on appellant’s petition.
B. Factual Background.
1170.95, appellant declared:
against him that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine;
(2) at trial, he was convicted of first degree or second degree
murder; and
(3) he could not be convicted of first or second degree
murder because of changes to section 188 or 189 made effective
January 1, 2019.
Appellant’s petition listed the case number and year of his
conviction.
Appellant filed this petition in the trial court that originally
imposed sentence, and served a copy of his petition on his trial
counsel and the district attorney’s office.
Appellant’s petition also specifically requested that the trial
court appoint counsel for appellant.
(1 CT 65-69; § 1170.95, subds. (a) & (b).)
15
In support of his petition, appellant attached copies of
relevant pages of the reporter’s transcripts from his trial, in
which witnesses testified that appellant did not have a gun
during the charged incident and did not make any statements
about shooting anyone (1 CT 75), and that the victim was shot at
a 90 degree angle from where he had been sitting (1 CT 77).
Appellant also attached copies of relevant pages from the
trial court’s ruling on his motion for acquittal under section
1118.1, in which the trial court expressed doubt about whether
appellant was the actual killer and the prosecutor apparently
agreed. (1 CT 71-73.) According to these pages, the following
exchange occurred between the trial court and the prosecutor at
appellant’s trial:
[The court]: As to Mr. Offley, where is the evidence that he personally is the one that slew Mr. Barralas [sic]?
[Prosecutor]: It doesn’t have to be, your honor. It just has to be that he personally discharged and as part of personally discharged, if...
[The court]: It says here that it’s further alleged under [section] 12022.53(d) that Mr. Offley personally and intentionally discharged a firearm which proximately caused great bodily harm.
[Prosecutor]: I don’t think I have to prove that. I think I just have to prove that he actually fired a
16
gun and that injury was caused to Mr. Barralas [sic]. I think there’s a case directly on point on that.[ ]6
[The court]: I’ll take it under submission. I would like it see [sic] the case. You are saying if I fire a 357 magnum and somebody is shot by a shotgun, I’m guilty of personally inflicting great bodily injury and death?
[Prosecutor]: Well, there are two theories. There is [1 CT 73] one where basically you are proximately causing it. It doesn’t matter that the bullet that you fired did not actually cause the injury, but basically by the shooting, by the act of acting in concert.
[The court]: I’m troubled by that so let me read the case. That was the only question I had. Because from where Mr. Offley is, he can’t be the one that fired the bullet that killed the young man because the car is
6
Cases have upheld imposition of an enhancement under section 12022.53, subdivision (d), where the defendant’s discharge of the firearm set in motion the chain of events leading to the injury or death. (See People v. Zarazua (2008) 162 Cal.App.4th 1348, 1359- 1362 [defendant’s gunfire led rival to speed away and hit another vehicle, killing victim]; People v. Palmer (2005) 133 Cal.App.4th 1141, 1148-1155 [police officer injured while ducking to avoid being shot].) But the proximate cause element of section 12022.53, subdivision (d), is lacking if the injury or death occurred before the defendant’s firearm was discharged. (People v. Palmer, supra, 133 Cal.App.4th at 1154; People v. Bland (2002) 28 Cal.4th 313, 338.)
17
a good probably about a 45-degree angle and the bullet is a direct 90 degree entry.
[Prosecutor]: I agree.
[The court]: That’s the only – that’s what I’m saying. With the angles of the shooting, Mr. Offley can’t by necessity be the actual assailant – slayer.
[Prosecutor]: He can be the actual slayer. It just can’t be the bullet coming from his gun was the one that struck and killed Mr. Barrales.
[The court]: That’s what I’m saying. We are all on the same page.
(1 CT 71-73, italics added.)
In response to appellant’s present petition, the trial court
denied the petition without appointing counsel for appellant and
without giving the parties the opportunity to file additional
briefing. The court ruled:
The court has reviewed the file. Defendant was the actual killer in count 1 - Penal Code section 187 and count 2 - Penal Code section 664/187 as the jury found personal use of a firearm under Penal Code section 12022.53(D) on both counts. The petition is denied.
(1 CT 82.)
Also significant is this court’s ruling in appellant’s prior
appeal. There, appellant contended that there was insufficient
18
evidence to prove that he personally discharged the firearm
causing death to Barrales, so as to support the additional 25-
years-to-life term imposed under section 12022.53, subdivision
(d). This court declined to decide whether the evidence was legally
sufficient to support such a finding. Instead, this court reasoned
that appellant was eligible for an enhancement under section
12022.53, subdivision (e), because, regardless of whether he
personally discharged the firearm and caused death, there was
sufficient evidence to prove that the crime was gang-related and
that a principal discharged a firearm causing death. This court
thus never specifically decided whether there was legally
sufficient evidence to prove that appellant personally caused
Barrales’s death, i.e. whether appellant was the actual killer.
(See People v. Keller, et al., supra, (Nov. 25, 2008, B199617)
[nonpub. opn.] [at pp. 3-4].)7
7
This court’s prior opinion does not address the fact that appellant received separate sentences for the gang enhancement and the firearm use enhancement in count two. Specifically, the gang enhancement is what increased the minimum eligible parole date in count two from seven to 15 years (see §§ 664, subd. (a), 3046, subd. (a), 186.22, subd. (b)(5)), and appellant then received a consecutive 25-years-to-life sentence under section 12022.53, subdivision (d), in that count. (See 1 CT 53-55, 58-59; People v. Keller, et al., supra, (Nov. 25, 2008, B199617) [nonpub. opn.] [at pp. 3-4].) Unless there was sufficient evidence to prove that appellant personally discharged a firearm causing injury or
19
Prior to Senate Bill 1437, “[t]he felony-murder rule [made]
a killing while committing certain felonies murder without the
necessity of further examining the defendant’s mental state.
Under the felony-murder doctrine, when the defendant or an
accomplice kills someone during the commission, or attempted
commission, of an inherently dangerous felony, the defendant is
liable for either first or second degree murder, depending on the
felony committed. If the felony is listed in section 189, the murder
is of the first degree; if not, the murder is of the second degree.”
(People v. Bryant (2013) 56 Cal.4th 959, 965.) The mental state
previously required for felony murder was “simply the specific
intent to commit the underlying felony; neither intent to kill,
deliberation, premeditation, nor malice aforethought is needed.”
(People v. Gutierrez (2002) 28 Cal.4th 1083, 1140.)
Under the natural and probable consequences doctrine, “[a]
person who knowingly aids and abets criminal conduct is guilty of
not only the intended crime [target offense] but also of any other
crime the perpetrator actually commits [nontarget offense] that is
a natural and probable consequence of the intended crime. Thus,
for example, if a person aids and abets only an intended assault,
death, these separate sentences are not permissible. (§ 12022.53, subd. (e)(2).)
20
but a murder results, that person may be guilty of that murder,
even if unintended, if it is a natural and probable consequence of
the intended assault. A nontarget offense is a natural and
probable consequence of the target offense if, judged objectively,
the additional offense was reasonably foreseeable.” (People v.
Chiu (2014) 59 Cal.4th 155, 161 (Chiu).)8
Senate Bill 1437, which went into effect on January 1,
2019, “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).)” (People v. Martinez (2019) 31 Cal.App.5th
719, 723; see also People v. Gentile (May 30, 2019, E069088) ___
Cal.App.5th ___, ___ [at p. 15].)
Section 188, subdivision (a)(3), now provides: “Except as
stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
8
In Chiu, our supreme court held that “a defendant cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine.” (Chiu, supra, 59 Cal.4th at 167.)
21
Malice shall not be imputed to a person based solely on his or her
participation in a crime.”
Senate Bill 1437 also added subdivision (e) to section 189.
This subdivision provides:
A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven:
(1) The person was the actual killer.
(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.
(§ 189, subd. (e).)
The terms “major participant” and “reckless indifference to
human life” in section 189, subdivision (e), thus have the same
meaning in the context of first degree felony murder as they do in
the context of the felony murder special circumstance (§ 190.2,
subds. (a)(17) & (d)). (See People v. Banks (2015) 61 Cal.4th 788,
798-811; People v. Clark (2016) 63 Cal.4th 522, 611-623.)
22
Senate Bill 1437 also adds...section 1170.95, which allows those convicted of felony murder or murder under a natural and probable consequences theory...to 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...A trial court that receives a petition under section 1170.95 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 made such a showing, the trial court shall issue an order to show cause...The trial court must then hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced....The burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing....If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.
(People v. Martinez, supra, 31 Cal.App.5th at 723-724; see also §
1170.95, subds. (a)-(e).)
23
D. The Trial Court Erred under State Law by Summarily Denying Appellant’s Petition Without Appointing Counsel for Appellant and Giving the Parties the Opportunity to File Additional Briefing.
As can be seen, appellant’s petition contained the necessary
allegations under section 1170.95, subdivision (b)(1), and
specifically requested that counsel be appointed. (1 CT 66-77; see
§ 1170.95, subd. (b)(1)(C).) But the trial court denied appellant’s
petition without first appointing counsel for appellant and
allowing the parties the opportunity to file additional briefing on
the petition, as required by section 1170.95, subdivision (c). (See 1
CT 82.) This was error under state law.
Section 1170.95 provides for an order to show cause (“OSC”)
procedure similar to habeas corpus proceedings, whereby the
superior court first determines whether the defendant has stated
a prima facie case for relief. If the petition alleges facts that, if
proven, would entitle the petitioner to relief, the court must issue
an OSC and hold a hearing to determine whether the defendant
is entitled to relief. (§ 1170.95, subds. (c) & (d); see also In re
Stevenson (2013) 213 Cal.App.4th 841, 855 [discussing OSC
procedure in habeas corpus proceedings].) But unlike habeas
corpus petitions, section 1170.95, subdivision (c), specifically
requires courts to appoint counsel for the defense and allow
24
additional briefing by the parties before deciding whether to issue
an OSC:
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.
(§ 1170.95, subd. (c), italics added.)
“If the statutory language is unambiguous, then its plain
meaning controls.” (People v. Ruiz (2018) 4 Cal.5th 1100, 1106.)
“The word ‘shall’ in a statute is ordinarily deemed mandatory,
and ‘may’ permissive.” (Diamond v. Superior Court (2013) 217
Cal.App.4th 1172, 1190.) The Legislature’s use of the terms
“shall” and “may” in section 1170.95, subdivision (c), thus signify
the Legislature’s intent that trial courts must appoint counsel for
the defendant, the prosecution must file a response to the
petition, and the defendant must be given the opportunity to file a
reply to the prosecution’s response, before the trial court can
make the determination of whether a prima facie case has been
stated.
25
petition without considering the additional pleadings [specified in
section 1170.95, subdivision (c)], or at least until the filing period
for a response or reply has expired...[P]etitioner is likely entitled
to counsel at some point during the process where the court is
considering whether the petitioner has stated a prima facie basis
for relief. (§ 1170.95, subd. (c).)” (Couzens, Accomplice Liability
for Murder (SB 1437) (Jan. 2019) [at p. 29]; but see Ammerman v.
Callender (2016) 245 Cal.App.4th 1058, 1086 [articles and
treatises are not binding legal authority].)9
If the Legislature had intended to give trial courts the
power to summarily deny petitions under section 1170.95 without
first appointing counsel for the defendant and giving the parties
the opportunity to file additional briefing on the petition, it would
have used permissive terms in section 1170.95, subdivision (c).
9
Judge Couzens takes the view that a court could summarily deny a petition without appointing counsel for the petitioner in situations where a review of the court file shows that the defendant was not even convicted of murder. (Couzens, Accomplice Liability for Murder (SB 1437), supra, [at p. 29].) This would be contrary to the mandatory language of section 1170.95, subdivision (c), but such an error would necessarily be harmless because a defendant who was not convicted of murder is plainly not entitled to relief. And in any event, since appellant was convicted of second degree murder, appellant’s case does not present this type of situation.
26
This could have been accomplished by a statute to the effect that
the court may appoint counsel and may request a response from
the prosecution before ruling on the petition, as in the rules of
court governing habeas corpus proceedings. (See Cal. Rules of
Court, rules 4.551(b) & (c), 8.385(b)(1) [before ruling on habeas
corpus petition, court “may request an informal written
response”].) Instead, the Legislature elected to write section
1170.95 in a way that mandates appointment of counsel and the
filing of additional briefing on the petition before the court is
authorized make a ruling. This can also be seen by comparing
section 1170.95, subdivision (c), with subdivision (b)(2), which
allows the trial court to summarily deny a petition without
prejudice only in limited situations where the necessary
information has been omitted from the petition and cannot be
readily ascertained by the court.
Nor is there any reason not to give these terms in section
1170.95, subdivision (c), their ordinary meanings. (See Briggs v.
Brown (2017) 3 Cal.5th 808, 850 [“shall” not given its “normal
mandatory interpretation” if such an interpretation would defeat
the statute’s purpose or raise constitutional questions].) No
constitutional concerns would be raised by giving the defendant
the right to counsel and giving the parties the right to file
additional briefing. Requiring the appointment of defense counsel
27
and briefing by the parties before a ruling would be consistent
with the statute’s goal of ensuring that defendants receive
sentences that are commensurate with their individual level of
culpability. (See Stats. 2018, c. 1015. S.B. 1437 § 1.) And there is
nothing to suggest that the Legislature did not intend for the
terms “shall” and “may” to be given their ordinary meanings in
section 1170.95, subdivision (c). The Legislative Counsel's Digest
even specifically observes that counsel will be involved in the
petition process: “By requiring the participation of district
attorneys and public defenders in the resentencing process, this
bill would impose a state-mandated local program.” (Legis.
Counsel's Dig., Sen. Bill No. 1437 (2017-2018 Reg. Sess.), italics
added.) This language, when read together with the mandatory
language of section 1170.95, subdivision (c), confirms the
Legislative intent for counsel to be involved before the court
determines whether the defendant has stated a prima facie case.
It follows that a trial court errs under state law by
summarily denying a petition under section 1170.95 without first
appointing counsel for the defendant (upon request) and allowing
the parties the opportunity to file additional briefing on the
petition. This is what occurred in appellant’s case. Indeed, the
court did not even wait until the 60 day filing period for the
prosecution’s response had expired. (See 1 CT 65-77, 82-83 [trial
28
court denied appellant’s petition 13 days after it was filed].) Nor
did the trial court deny appellant’s petition without prejudice
under section 1170.95, subdivision (b)(2), because some necessary
information was lacking. The trial court consequently erred under
state law by denying appellant’s petition without first appointing
counsel for appellant and allowing the parties the opportunity to
file additional briefing.
E. The Trial Court’s Summary Denial of Appellant’s Petition Deprived Appellant of His Federal Constitutional Rights to Due Process and the Assistance of Counsel.
The trial court’s ruling also violated appellant’s federal
constitutional rights to due process and to the assistance of
counsel.
and federal constitutional right to counsel at all “critical stages”
of the criminal process. (People v. Rouse (2016) 245 Cal.App.4th
292, 296-297 (Rouse); see also Marshall v. Rodgers (2013) 569 US
58 [185 L.Ed.2d 540, 133 S.Ct. 1446, 1449]; Bell v. Cone (2002)
535 U.S. 685, 695-696 [122 S.Ct. 1843, 152 L.Ed.2d 914]; Mempa
v. Rhay (1967) 389 U.S. 128, 134-137 [19 L.Ed.2d 336, 88 S.Ct.
254]; People v. Doolin (2009) 45 Cal.4th 390, 417; People v.
Hawthorne (1992) 4 Cal.4th 43, 69; U.S. Const., 6th, & 14th
Amends.) A stage is “critical” if it has “significant consequences
for the accused.” (Bell v. Cone, supra, 535 U.S. at 695-696.) “The
29
potential substantial prejudice to defendant's rights inheres in
the particular confrontation and the ability of counsel to help
avoid that prejudice. The essence of a ‘critical stage’ is the
adversary nature of the proceeding, combined with the possibility
that a defendant will be prejudiced in some significant way by the
absence of counsel.” (Rouse, supra, 245 Cal.App.4th at 297.)
The determination of whether appellant’s petition states a
prima facie case for relief meets these definitions of a critical
stage. The outcome will have significant consequences for the
accused, in that denial will leave the indeterminate sentence
imposed on the murder conviction intact while a finding of a
prima facie case will lead to issuance of an OSC, a full hearing on
the merits of the petition, and, if the petition is granted, a more
lenient sentence. Section 1170.95, subdivision (c)’s mandatory
provisions for the appointment of defense counsel, and for the
filing of a response by the prosecution and the opportunity for the
defense to file a reply, also demonstrate that this stage of the
proceeding is adversarial in nature. And the absence of counsel
for the defense creates a serious risk of prejudice, in that the
petition might be denied for a legally incorrect reason, when such
an erroneous result could be avoided by input from defense
30
counsel. In appellant’s case, for example, the trial court denied
appellant’s petition based on the jury’s findings at the trial. (1 CT
82.) But as detailed in Section I(F), below, these findings do not
necessarily show that appellant was ineligible for relief. Had the
trial court properly appointed counsel for appellant below,
counsel could have explained these points to the trial court.
Accordingly, appellant had a federal constitutional right to the
assistance of counsel at this stage in the proceedings. By denying
appellant’s petition without first appointing counsel for appellant,
the trial court deprived appellant of this constitutional right.
And even if appellant did not have a Sixth Amendment
right to counsel in this specific context (see Rouse, supra, 245
Cal.App.4th at 298 [Sixth Amendment right to counsel does not
apply to some postconviction proceedings]), federal due process
nevertheless requires that an incarcerated defendant be afforded
the right to counsel in various circumstances where the Sixth
Amendment does not, such as on appeal or in a collateral writ
proceeding after an order to show cause has been issued. (Id. at
300-301; see also People v. Scott (1998) 64 Cal.App.4th 550, 554;
Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000)
528 U.S. 152, 155 [145 L.Ed.2d 597, 120 S.Ct. 684]; U.S. Const.,
5th & 14th Amends.) Since appointment of counsel for appellant
was necessary to ensure fairness in the proceedings and to avoid
31
potential prejudice to the defense, appellant had a federal due
process right to counsel in this context under the above
authorities. The trial court thus also violated appellant’s federal
due process rights by denying appellant’s petition without first
appointing defense counsel and giving counsel the opportunity to
file a reply to the prosecution’s response.
Finally, the trial court’s summary denial of appellant’s
petition violated appellant’s procedural due process rights. A
state court violates a criminal defendant’s due process rights if
the state deprives the defendant of a liberty interest without due
process of law. (See Prieto v. Clarke (4th Cir. 2015) 780 F.3d 245,
248; Shinault v. Hawks (9th Cir. 2015) 782 F.3d 1053, 1057.)
Protected liberty interests arise either from the due process
clause itself, or from state law. (Hewitt v. Helms (1983) 459 U.S.
460, 466 [103 S.Ct. 864, 74 L.Ed.2d 675]; Wilkinson v. Austin
(2005) 545 U.S. 209, 221-222 [125 S.Ct. 2384, 162 L.Ed.2d 174].)
For example, a criminal defendant may have a liberty interest in
receiving conduct credits under state law. (See Wolff v. McDonnell
(1974) 418 U.S. 539, 556-558 [94 S.Ct. 2963, 41 L.Ed.2d 935].)
Accordingly, when state law gives a criminal defendant the
expectation of receiving a certain right or benefit, the denial of
that right may have the additional effect of violating federal due
process. (Hicks v. Oklahoma (1980) 447 U.S. 343, 346 [100 S.Ct.
32
2227, 65 L.Ed.2d 175] [deprivation of state law right to jury
determination of sentence violated defendant’s federal due
process rights].)
As relevant here, section 1170.95, subdivision (c), provides
for certain rights and procedures upon the filing of a petition
under section 1170.95. The court shall appoint counsel for the
defendant. The prosecution shall file a response to the petition.
And the defendant may file a reply. Defendants filing such
petitions have a fair expectation that these provisions of state law
will be followed. Section 1170.95, subdivision (c), thus creates a
liberty interest in having counsel appointed and in having the
opportunity to file additional briefing before the court decides
whether to issue an OSC. The trial court denied appellant’s
petition without affording him any of these rights. In this way, by
summarily denying appellant’s petition, the trial court also
violated appellant’s procedural due process rights.
F. The Order Denying Appellant’s Petition must Be Reversed, and the Case must Be Remanded for the Trial Court to Appoint Counsel for Appellant and to Allow the Parties the Opportunity to File Additional Briefing on Appellant’s Petition.
Although most constitutional errors are subject to harmless
error analysis, some errors are structural and require automatic
reversal. (See People v. Reese (2017) 2 Cal.5th 660, 668-669.)
33
“necessarily unquantifiable and indeterminate.” (People v.
Sivongxxay (2017) 3 Cal.5th 151, 178.)
The “complete absence of counsel” is one example of a
structural error. (People v. Reese, supra, 2 Cal.5th at 669.) In
Rouse, for example, the trial court erred by holding a
resentencing hearing under Proposition 47 without the presence
of the defendant or his counsel, and the appellate court remanded
the matter to the trial court with directions to conduct a new
sentencing hearing, in which the defendant and his counsel could
be present, without analyzing the likelihood that the outcome
would have been the same if a hearing had been held. (Rouse,
supra, 245 Cal.App.4th at 294-301.) Similarly, in People v.
Fryhaat (May 31, 2019, E070847) ___ Cal.App.5th ___, the trial
court erred by denying the defendant’s motion to vacate his
conviction under section 1473.7 without a hearing, without his
presence, and without appointed counsel, and the appellate court
concluded that this error was not subject to harmless error
analysis. (Id. at ___ [at pp. 20-21].)
This court should employ the same approach here. The
effect of the error in appellant’s case is necessarily unquantifiable
and indeterminate because it is impossible to know how the court
would have ruled on appellant’s petition if appellant had been
34
given his right to counsel and to file additional briefing before the
court made this decision. This error also resulted in the complete
absence of defense counsel, even though state law provides that
defense counsel shall be appointed during this stage of the
proceedings. This error must therefore be deemed a structural
error, requiring automatic reversal of the trial court’s order
denying appellant’s petition, and a remand for the court to
appoint counsel for appellant and allow the parties the
opportunity to file additional briefing on appellant’s petition
before the court makes the determination of whether the petition
states a prima facie case.
Constitutional errors that are not structural are generally
reviewed for prejudice under Chapman , which requires reversal10
unless the prosecution can show that the error was harmless
beyond a reasonable doubt. (Chapman, supra, 386 U.S. at 24-25.)
The inquiry is whether the outcome was “surely unattributable to
the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279 [124
L.Ed.2d 182, 113 S.Ct. 2078]; see also People v. Johnson (1993) 6
Cal.4th 1, 56-57 (conc. & dis. opn. of Mosk, J.).) Errors of state
10
Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman).
35
law are generally reviewed under Watson , and require reversal11
if it is “reasonably probable” that the results would have been
more favorable to the defendant if the error had not occurred.
(Watson, supra, 46 Cal.2d at 836.) The term reasonably probable
means “a reasonable chance, more than an abstract possibility.”
(People v. Wilkins (2013) 56 Cal.4th 333, 351.)
In appellant’s case, since the trial court violated appellant’s
federal constitutional rights to due process and to the assistance
of counsel by summarily denying appellant’s petition, this error
must at least be reviewed for prejudice under the more stringent
Chapman standard.
But even under Watson, analogous errors in the denial of
counsel are generally deemed prejudicial because it is impossible
to know how the court would have ruled if it had had the benefit
of counsel’s input. For example, in People v. Rocha (2019) 32
Cal.App.5th 352, the trial court erred by deciding not to strike a
firearm enhancement without first holding a hearing in which the
defendant could be present with counsel, and this error was
prejudicial under Watson because “it is reasonably probable that
input from defendant and his counsel would lead to a more
favorable exercise of the court’s discretion...Indeed, the trial
11
36
court... did not consider other factors defendant and his counsel
may have been able to bring to its attention.” (Id. at 360.)
The same is true here. It is impossible to know how the
trial court would have ruled on appellant’s petition if the court
had properly appointed counsel for appellant and given the
parties the opportunity to file additional briefing before deciding
whether the petition stated a prima facie case for relief. This
relates back to why this error should be deemed structural: the
effects of this error are necessarily unquantifiable and
indeterminate. But for these same reasons, the prosecution
cannot show beyond a reasonable doubt that the trial court would
have denied appellant’s petition anyway, and there is at least a
reasonable chance that defense counsel could have convinced the
court to issue an OSC and grant appellant’s petition. Accordingly,
even if this error is susceptible to harmless error analysis, this
error was prejudicial under Chapman and Watson.
Nor do the jury’s findings necessarily demonstrate that
appellant was ineligible for relief under section 1170.95.
As for appellant’s second degree murder conviction, it is
entirely possible that this conviction was under a felony murder
or natural-and-probable-consequences theory, as appellant
alleged in his petition, in which case the jury could have convicted
him based on merely an intent to commit or aid in the underlying
37
felony. (See People v. Gutierrez, supra, 28 Cal.4th at 1140; Chiu,
supra, 59 Cal.4th at 161.) The murder conviction thus does not
necessarily show that the jury made the findings required under
the present versions of sections 188, subdivision (a)(3), and 189,
subdivision (e).
As for the attempted murder conviction, this did not show
that the jury found that appellant personally acted with intent to
kill either, because this also could have been based on a natural-
and-probable-consequences-theory, i.e. that attempted murder
was a natural and probable consequence of another crime that
appellant aided and abetted (see People v. Favor (2012) 54
Cal.4th 868, 874-880), and because willful, deliberate, and
premeditated attempted murder under section 664, subdivision
(a), does not require that the defendant personally acted with
those mental states. (Ibid.; see also People v. Lee (2003) 31
Cal.4th 613, 616-617.)
The trial court’s reliance on the true finding on the
enhancement under section 12022.53, subdivision (d), was also
misplaced. As noted in appellant’s petition, one of the witnesses
testified that appellant did not have a gun (see 1 CT 75), and the
trial court and the prosecutor both agreed at trial that appellant
could not have been the one who fired the fatal gunshot. (See 1
CT 71-73.) The trial court specifically stated: “from where Mr.
38
Offley is, he can’t be the one that fired the bullet that killed the
young man...” (1 CT 73, italics added.) The prosecutor responded:
“I agree.” (1 CT 73.) The trial court continued: “With the angles of
the shooting, Mr. Offley can’t by necessity be the actual assailant –
slayer.” (1 CT 73, italics added.) The prosecutor did not dispute
this point: “It just can’t be the bullet coming from his gun was the
one that struck and killed Mr. Barrales.” (1 CT 73, italics added.)
And in appellant’s prior appeal, appellant argued that the
evidence was legally insufficient to support this enhancement.
But this court did not decide whether there was legally sufficient
evidence to support this enhancement. Instead, this court ruled
that it need not resolve this question because appellant was
subject to an enhancement under section 12022.53, subdivision
(e), since there was sufficient evidence to show that the crime was
gang-related under section 186.22, subdivision (b), and that a
principal discharged a firearm causing injury or death. (See
People v. Keller, et al., supra, (Nov. 25, 2008, B199617) [nonpub.
opn.] [at pp. 3-4].) 12
12
As noted in footnote 8 above, this reasoning does not account for the fact that appellant received separate sentences for the gang and firearm use enhancements in count two, which is not permissible unless appellant personally discharged the firearm. (§ 12022.53, subd. (e)(2).)
39
It is thus entirely possible that the evidence was legally
insufficient to support the true finding on the section 12022.53,
subdivision (d), enhancement. This true finding consequently
does not necessarily show that appellant was the actual killer, so
as to disqualify him from relief under section 189, subdivision (e).
Instead, this factual question must be resolved in a hearing in the
superior court under section 1170.95, subdivision (d).
Even putting aside these factual questions in appellant’s
case, a true finding on an enhancement under section 12022.53,
subdivision (d), still does not necessarily show that the defendant
is ineligible for relief under section 1170.95. Section 12022.53,
subdivision (d), does not require proof of any specific intent (see
People v. Lucero (2016) 246 Cal.App.4th 750, 757-760), and as a
result, a true finding on this enhancement doesn’t necessarily
show that the defendant acted with the specific intent to kill
required by section 189, subdivision (e). This enhancement can
also theoretically be found true and applied to enhance a sentence
on a murder conviction if the defendant’s personal firearm
discharge only injured someone other than the decedent. (Cf.
People v. Oates (2004) 32 Cal.4th 1048, 1054-1055; People v.
Frausto (2009) 180 Cal.App.4th 890, 899 [“section 12022.53 calls
for multiple enhancements to be imposed when there are several
victims but only one injury”].) In such a situation, the defendant
40
might qualify for a section 12022.53, subdivision (d),
enhancement because he injured someone, even if he was not the
“actual killer” as required by section 189, subdivision (e).
Similarly, cases have upheld section 12022.53 enhancements
where the defendant’s discharge of the firearm set in motion the
chain of events that resulted in a death (see People v. Zarazua,
supra, 162 Cal.App.4th at 1361 [defendant’s gunfire led rival to
speed away and hit another vehicle, killing victim]), but in these
types of situations, the defendant’s act of firing the gun would be
too attenuated for the defendant to be deemed the “actual killer”,
as that term is used in section 189, subdivision (e). Nor does the
fact that the defendant used a weapon in the underlying felony
necessarily mean that the defendant was a “major participant”
who acted with “reckless indifference to human life” under section
189, subdivision (e); the use of a weapon is merely one factor of
the many that bear on this determination. (See People v. Banks,
supra, 61 Cal.4th at 803; People v. Clark, supra, 63 Cal.4th at
617-619; In re Bennett (2018) 26 Cal.App.5th 1002, 1022.)
Had the trial court properly appointed counsel and allowed
the parties the opportunity to file additional briefing, defense
counsel could have emphasized these points, and whatever other
points existed that weighed in favor of the defense. And if the
trial court had had the benefit of this input, it may very well have
41
found that the allegations in the petition sufficiently stated a
prima facie case, such that an OSC had to be issued. In such a
situation, there is at least a reasonable chance that appellant
would have succeeded in obtaining relief after a full hearing in
the superior court.
For all of these reasons, the trial court’s order summarily
denying appellant’s petition must be reversed, and the case must
be remanded for the trial court to appoint counsel for appellant
and hold further proceedings on appellant’s petition in accordance
with section 1170.95, subdivision (c).
G. Appellant Joins in the Arguments Raised in Co- appellant Keller’s Opening Brief.
Co-appellant Keller also argues herein that the trial court
erred by summarily denying his section 1170.95 petition. (See
Keller’s AOB, Section I.) Although the jury’s findings as to Keller
were not exactly the same as the jury’s findings at to appellant,
Keller’s arguments nevertheless apply to appellant for the
reasons discussed herein: the jury’s findings do not necessarily
show that appellant was ineligible for relief under section
1170.95. Accordingly, appellant also joins in and adopts Keller’s
arguments. (Cal. Rules of Court, rules 8.200(a)(5), 8.360(a); see
People v. Bryant, Smith, and Wheeler (2014) 60 Cal.4th 335, 363.)
42
CONCLUSION
For the reasons stated above, the trial court’s order denying
appellant’s petition under section 1170.95 must be reversed, and the
case must be remanded for further proceedings on appellant’s
petition in accordance with section 1170.95, subdivision (c).
Respectfully submitted,
DATED: June 25, 2019 Joshua L. Siegel, Attorney at Law SBN 262941 171 Pier Ave., # 314 Santa Monica, CA 90405 Attorney for appellant
43
WORD COUNT CERTIFICATION
I certify that this document was prepared on a computer using
Corel WordPerfect, and that, according to that program, this
document contains 7,307 words.
44
BY MAIL
I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) and not a party to the within action; my business address is 171 Pier Ave., # 314, Santa Monica, California 90405.
On June 25, 2019, I served the within APPELLANT
OFFLEY’S OPENING BRIEF in said action, by placing a true copy thereof in sealed envelopes addressed as follows and depositing the same in the United States Mail at Los Angeles, California.
Dana Offley, CDCR # V83524 California State Prison, Corcoran P.O. Box 8800 Corcoran, CA 93212-8309
Clerk of the Court, for Delivery to Hon. John Torribio, Judge 12720 Norwalk Blvd., Dept. G Norwalk, CA 90650
I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on June 25, 2019, at Los Angeles, California.
By: Joshua L. Siegel
PROOF OF SERVICE
BY ELECTRONIC SERVICE
I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) and not a party to the within action; my business address is 171 Pier Ave. # 314, Santa Monica, California 90405.
On June 25, 2019, I served from my electronic notification address of Siegel.Joshua@gmail.com a true and correct electronic copy of the within APPELLANT OFFLEY’S OPENING BRIEF in said action to each of the following recipient(s) at the email address indicated:
California Attorney General - Los Angeles Office (docketingLAawt@doj.ca.gov);
California Appellate Project - Los Angeles (capdocs@lacap.com);
Los Angeles County District Attorney (truefiling@da.lacounty.gov);
Eric Larson, Attorney at Law (larson1001@yahoo.com) [Attorney for co-appellant Keller].
I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on June 25, 2019, at Los Angeles, California.
By: Joshua L. Siegel
Statement of Appealability
Argument
I. The Trial Court Prejudicially Erred, and Violated Appellant’s Federal Constitutional Rights to Due Process and the Assistance of Counsel, by Summarily Denying Appellant’s Petition for Resentencing Without Appointing Counsel for Appellant, and Without Giving the Parties the Opportunity to File Additional Briefing on the Petition
A. Introduction
B. Factual Background
C. Applicable Law
D. The Trial Court Erred under State Law by Summarily Denying Appellant’s Petition Without Appointing Counsel for Appellant and Giving the Parties the Opportunity to File Additional Briefing
E. The Trial Court’s Summary Denial of Appellant’s Petition Deprived Appellant of His Federal Constitutional Rights to Due Process and the Assistance of Counsel
F. The Order Denying Appellant’s Petition must Be Reversed, and the Case must Be Remanded for the Trial Court to Appoint Counsel for Appellant and to Allow the Parties the Opportunity to File Additional Briefing on Appellant’s Petition
G. Appellant Joins in the Arguments Raised in Co- appellant Keller’s Opening Brief
Conclusion