People v. Lewis ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
VINCE E. LEWIS,
Defendant and Appellant.
S260598
Second Appellate District, Division One
B295998
Los Angeles County Superior Court
TA117431
July 26, 2021
Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Cuéllar, Kruger, and Jenkins concurred.
PEOPLE v. LEWIS
S260598
Opinion of the Court by Groban, J.
Senate Bill No. 1437 (Stats. 2018, ch. 1015; Senate Bill
1437) eliminated natural and probable consequences liability for
murder and limited the scope of the felony murder rule. (Pen.
Code, §§ 188, subd. (a)(3), 189, subd. (e), as amended by Senate
Bill 1437.) Senate Bill 1437 also added section 1170.95 to the
Penal Code,1 which creates a procedure for convicted murderers
who could not be convicted under the law as amended to
retroactively seek relief.
In this case, we are asked to decide two questions specific
to section 1170.95, subdivision (c): (1) may superior courts
consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for
relief?; and (2) when does the right to appointed counsel arise?
Here, the trial court considered the record of conviction
without appointing counsel and summarily denied defendant
Vince E. Lewis’s section 1170.95 petition. The Court of Appeal
concluded this procedure was proper. Contrary to the Court of
Appeal’s decision, we conclude that the statutory language and
legislative intent of section 1170.95 make clear that petitioners
are entitled to the appointment of counsel upon the filing of a
facially sufficient petition (see § 1170.95, subds. (b), (c)) and that
1
All undesignated statutory references are to the Penal
Code.
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Opinion of the Court by Groban, J.
only after the appointment of counsel and the opportunity for
briefing may the superior court consider the record of conviction
to determine whether “the petitioner makes a prima facie
showing that he or she is entitled to relief.” (§ 1170.95, subd.
(c).)
Nevertheless, we conclude that the deprivation of Lewis’s
right to counsel under subdivision (c) of section 1170.95 was
state law error only, tested for prejudice under People v. Watson
(1956) 46 Cal.2d 818 (Watson). The parties dispute whether the
trial court’s failure to appoint counsel can be deemed harmless
on this record. We decline to reach that issue. We instead
reverse the Court of Appeal’s judgment and remand the cause
to the Court of Appeal for an evaluation of prejudice under
Watson in the first instance.
I. BACKGROUND
A. Factual and Procedural History
In 2012, defendant Lewis, along with codefendants Ariana
Coronel and Mirian Herrera, were convicted of killing fellow
Easy Riders gang member Darsy Noriega for her apparent
disloyalty to their gang.2 At their trial, former codefendant Amy
Aleman testified that Noriega was ordered to attend a gang
meeting, which had been called by Lewis, on the night of her
death. During the meeting, Lewis told Aleman, Coronel,
Herrera, and Noriega to accompany him to buy beer, which they
2
The brief summary of facts is drawn from the Court of
Appeal’s prior opinion in Lewis’s direct appeal. (People v. Lewis
(July 14, 2014, B241236) [nonpub. opn.] (Lewis I).) In this
matter, the Court of Appeal took judicial notice of Lewis I. (See
People v. Lewis (2020) 43 Cal.App.5th 1128, 1133, fn. 1 (Lewis
II).)
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Opinion of the Court by Groban, J.
did. After leaving the liquor store, Lewis drove around,
eventually parking on a street near an alley. After Lewis
parked, Aleman, Herrera, and Noriega got out of the car and
walked down the alley; Lewis and Coronel remained in the car.
In the alley, Herrera shot Noriega to death; Noriega was hit by
approximately ten bullets. The prosecution’s gang expert
offered testimony that “in general a gang meeting is required to
decide whether a member needs to be disciplined and only one
person in the gang, the ‘shot caller,’ can call such a meeting.”
(Lewis I, supra, B241236.)
The jury convicted Lewis, Coronel, and Herrera of
Noriega’s first degree murder. (§ 187, subd. (a).) The jury
further found that the murder was committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1)(c)) and that
Herrera personally and intentionally discharged a firearm
causing death (§ 12022.53, subd. (d)). Lewis was sentenced to
25 years to life.
Lewis, Coronel, and Herrera appealed. (Lewis I, supra,
B241236.) While their appeal was pending, we decided People
v. Chiu (2014) 59 Cal.4th 155 (Chiu). Chiu “held that natural
and probable consequences liability cannot extend to first
degree premeditated murder because punishing someone for
first degree premeditated murder when that person did not
actually perpetrate or intend the killing is inconsistent with
‘reasonable concepts of culpability.’ ” (Gentile, supra, 10 Cal.5th
at p. 838, quoting Chiu, at p. 165; see generally Chiu, at pp. 165–
166.)3 Chiu further explained, “When a trial court instructs a
3
As we stated in Gentile, Senate Bill 1437 superseded Chiu,
supra, 59 Cal.4th 155 insofar as Chiu upheld aider and abettor
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Opinion of the Court by Groban, J.
jury on two theories of guilt, one of which was legally correct and
one legally incorrect, reversal is required unless there is a basis
in the record to find that the verdict was based on a valid
ground.” (Chiu, at p. 167.) Stated differently, “[d]efendant’s
first degree murder conviction must be reversed unless we
conclude beyond a reasonable doubt that the jury based its
verdict on the legally valid theory that defendant directly aided
and abetted the premeditated murder.” (Ibid.)
In relevant part, the Lewis I court agreed with Lewis that,
under Chiu, the trial court erred by instructing the jury that it
could convict him of Noriega’s murder if he aided Herrera in an
assault on Noriega with force likely to produce great bodily
injury and that murder was the natural and probable
consequence of the assault. (Lewis I, supra, B241236.)
However, quoting Chiu, supra, 59 Cal.4th at page 167, the Lewis
I court concluded the error was harmless beyond a reasonable
doubt because the record showed that Lewis directly aided and
abetted Herrera in the deliberate, premeditated murder of
Noriega. (Ibid.)
We denied Lewis’s petition for review of Lewis I.
B. Senate Bill 1437
Effective January 1, 2019, the Legislature passed Senate
Bill 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
liability for second degree murder under the natural and
probable consequences theory. (Gentile, supra, 10 Cal.5th at pp.
848–849.)
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Opinion of the Court by Groban, J.
not a major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f).) In addition to substantively amending sections 188
and 189 of the Penal Code, Senate Bill 1437 added section
1170.95, which provides a procedure for convicted murderers
who could not be convicted under the law as amended to
retroactively seek relief. (See Gentile, supra, 10 Cal.5th at
p. 843.)
Pursuant to section 1170.95, an offender must file a
petition in the sentencing court averring that: “(1) A complaint,
information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine[;] [¶] (2) The petitioner was convicted of first degree or
second degree murder following a trial or accepted a plea offer
in lieu of a trial at which the petitioner could be convicted for
first degree or second degree murder[;] [¶] [and] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subds. (a)(1)–(3); see also
§ 1170.95 subd. (b)(1)(A).) Additionally, the petition shall state
“[w]hether the petitioner requests the appointment of counsel.”
(§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with
subdivision (b)(1), “the court may deny the petition without
prejudice to the filing of another petition . . . .” (§ 1170.95, subd.
(b)(2).)
Where the petition complies with subdivision (b)’s three
requirements, then the court proceeds to subdivision (c) to
assess whether the petitioner has made “a prima facie showing”
for relief. (§ 1170.95, subd. (c).)
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If the trial court determines that a prima facie showing for
relief has been made, the trial court issues an order to show
cause, and then must 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, provided that the new sentence, if any, is not greater
than the initial sentence.” (§ 1170.95, subd. (d)(1).) “The
prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens.” (§ 1170.95, subd. (d)(3).) At the hearing
stage, “the burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (§ 1170.95, subd. (d)(3).)
C. Section 1170.95 Petition
On January 7, 2019, Lewis filed a petition complying with
section 1170.95 in the sentencing court, wherein he requested
counsel. On February 4, 2019, the superior court, without
appointing counsel, summarily denied the petition by minute
order. The court concluded, in pertinent part, that Lewis did not
make a prima facie case for resentencing under Senate Bill 1437
because, based on the Lewis I court’s decision on direct appeal,
he “would still be found guilty with a valid theory [direct aiding
and abetting] of first degree murder.”
Lewis appealed. The Court of Appeal affirmed the trial
court’s summary denial. (Lewis II, supra, 43 Cal.App.5th 1128.)
The court rejected Lewis’s claims that the trial court erred by
not appointing counsel and relying on the record of conviction to
summarily deny his petition. We granted Lewis’s petition for
review.
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Opinion of the Court by Groban, J.
II. APPOINTMENT OF COUNSEL
A. Principles of Statutory Interpretation
The proper interpretation of a statute is a question of law
we review de novo. (United Educators of San Francisco etc. v.
California Unemployment Ins. Appeals Bd. (2020) 8 Cal.5th 805,
812; People v. Prunty (2015) 62 Cal.4th 59, 71.) “ ‘ “ ‘As in any
case involving statutory interpretation, our fundamental task
here is to determine the Legislature’s intent so as to effectuate
the law’s purpose. [Citation.] We begin by examining the
statute’s words, giving them a plain and commonsense
meaning.’ ” ’ ” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)
“ ‘[W]e look to “the entire substance of the statute . . . in order to
determine the scope and purpose of the provision . . . .
[Citation.]” [Citation.] That is, we construe the words in
question “ ‘in context, keeping in mind the nature and obvious
purpose of the statute . . . .’ [Citation.]” [Citation.] We must
harmonize “the various parts of a statutory enactment . . . by
considering the particular clause or section in the context of the
statutory framework as a whole.” ’ ” (People v. Arroyo (2016) 62
Cal.4th 589, 595 (Arroyo).)
B. Language and Structure of Section 1170.95,
Subdivision (c)
The two issues before us turn on the interpretation of
subdivision (c) of section 1170.95. Subdivision (c) provides in
full: “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
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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.)
The Court of Appeal and the People read subdivision (c)’s
two references to “a prima facie showing” to require two distinct,
sequential inquiries: one “that petitioner ‘falls within the
provisions’ of the statute,” and a second “ ‘that he or she is
entitled to relief.’ (§ 1170.95, subd. (c).)” (Lewis II, supra, 43
Cal.App.5th at p. 1140; see also People v. Verdugo (2020) 44
Cal.App.5th 320, 327 (Verdugo) [agreeing with Lewis II and
describing in greater detail subdivision (c)’s “two-step process
for the court to determine if an order to show cause should
issue”], review granted Mar. 18, 2020, S260493.) By
chronologically parsing out each sentence of subdivision (c), the
Court of Appeal concluded that a petitioner is only entitled to
counsel, if requested, after successfully making the first prima
facie showing. (Lewis II, at p. 1140.)
We reject this interpretation of section 1170.95,
subdivision (c). Rather, we read subdivision (c) to describe only
a single prima facie showing. (Accord People v. Cooper (2020) 54
Cal.App.5th 106, 118, review granted Nov. 10, 2020, S264684
(Cooper); People v. Daniel (2020) 57 Cal.App.5th 666, 673–674,
review granted Feb. 24, 2021, S266336 (Daniel) [same panel
“adher[ing] to our holding in Cooper”].) Considering subdivision
(c)’s language in the context of section 1170.95 as a whole (see
Arroyo, supra, 62 Cal.4th at p. 595), subdivision (c) clearly
describes a single process. More specifically, the first sentence
of subdivision (c) does not require a distinct prima facie showing
before the appointment of counsel. Under its natural reading,
“ ‘[t]he first sentence [of subdivision (c)] states the rule’ ” and
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Opinion of the Court by Groban, J.
“ ‘[t]he rest of the subdivision establishes the process for
complying with that rule.’ ” (Cooper, at p. 115, quoting People v.
Tarkington (2020) 49 Cal.App.5th 892, 917 (dis. opn. of Lavin,
J.), review granted Aug. 12, 2020, S263219 (Tarkington); accord
Daniel, at pp. 673–674, review granted.)
Such a reading does not “disregard” the first sentence of
subdivision (c), as the People contend. Rather, the first sentence
provides the rule: the court reviews the petition to determine “if
the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section.” (§ 1170.95,
subd. (c).) The last sentence describes what the court shall do if
a petitioner makes a prima facie showing, namely, issue an
order to show cause. This reading is in harmony with the
remainder of section 1170.95. The People’s interpretation of the
first sentence of subdivision (c), by contrast, endeavors to create
a separate initial review process, but the initial review process
is clearly laid out immediately prior in subdivision (b)(2), which
permits a court to deny a noncomplying petition “without
prejudice.” (§ 1170.95, subd. (b)(2).) Thus, to read the first
sentence of subdivision (c) to thereafter provide for another pre-
briefing review by the court, without the assistance of counsel,
conflicts with the overall structure of section 1170.95. (See
People v. Valencia (2017) 3 Cal.5th 347, 357–358 [“But ‘[t]he
words of the statute must be construed in context, keeping in
mind the statutory purpose, and statutes or statutory sections
relating to the same subject must be harmonized, both
internally and with each other, to the extent possible’ ”].)
Notably, whether a petitioner “requests the appointment
of counsel” is part of the information that must be included in a
petition for it to satisfy the court’s subdivision (b)(2) review.
(§ 1170.95, subd. (b)(1)(C); see also subd. (b)(2).) Subdivision
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(c)’s language regarding the appointment of counsel is
mandatory: “If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner.” (§ 1170.95,
subd. (c), italics added.) The combined meaning is clear:
petitioners who file a complying petition requesting counsel are
to receive counsel upon the filing of a compliant petition.
Nonetheless, the People and the Court of Appeal adopt a
position that interprets subdivision (c) to mean that the court
shall appoint counsel only after a first-step prima facie showing
is made, and then counsel may assist the petitioner in making a
second-step prima facie showing. But that is not what the
subdivision says. The sentence addressing counsel simply
states that if petitioner asks for counsel, counsel “shall” be
appointed. (§ 1170.95, subd. (c).) It noticeably does not say that
counsel will be appointed only after some “first-step” prima facie
showing is made. Thus, the People’s proposed reading focuses
instead upon the placement of the second sentence, i.e., because
the second sentence appears after a reference to a “prima facie
showing” in the first sentence, this means that the Legislature
intended to create a separate, first-step prima facie analysis
conducted without the aid of counsel. If the first and second
sentences of subdivision (c) were reversed, presumably the
People’s chronological argument fails. We are unwilling to place
more import on the placement of the second sentence than on
the actual words used in the statute, especially since, as one
analyzes the implications of the People’s argument, it cannot
withstand scrutiny.
The People rely on Verdugo, which, elaborating on the
reasoning in Lewis II, attempts to support a two-step process by
underscoring that the first reference to a prima facie showing in
section 1170.95, subdivision (c) uses the phrase “falls within the
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Opinion of the Court by Groban, J.
provisions of this section,” which Verdugo takes to mean “that
the petitioner may be eligible for relief” (Verdugo, supra, 44
Cal.App.5th at p. 328, review granted, italics added), whereas
the second reference uses the distinct phrase “a prima facie
showing that he or she is entitled to relief” (§ 1170.95, subd. (c),
italics added). (See Verdugo, at p. 328; see also Tarkington,
supra, 49 Cal.App.5th at p. 897, review granted [adopting
Verdugo’s two-step interpretation]; People v. Edwards (2020) 48
Cal.App.5th 666, 673–674, review granted July 8, 2020,
S262481 [same]; People v. Drayton (2020) 47 Cal.App.5th 965,
975–976 (Drayton) [same]; People v. Torres (2020) 46
Cal.App.5th 1168, 1177–1178, review granted June 24, 2020,
S262011 [same].) This is a distinction without a difference. This
argument overlooks the fact that the terms “eligibility” and
“entitlement” are used interchangeably elsewhere in section
1170.95. (Cooper, supra, 54 Cal.App.5th at p. 120, review
granted.)
Subdivision (d)(2) provides in part that “[t]he parties may
waive a resentencing hearing and stipulate that the petitioner
is eligible to have his or her murder conviction vacated and for
resentencing.” (§ 1170.95, subd. (d)(2), italics added.) If
entitlement is something more than eligibility, “why would a
stipulation that the petitioner is merely eligible for relief obviate
the need for a hearing on entitlement?” (Cooper, at p. 120.) As
Cooper concluded, “[S]ection 1170.95’s interchangeable
references to eligibility and entitlement repudiate the notion
that the concepts have different meanings.” (Cooper, at p. 120.)
It thus follows that there is no syntactic basis for interpreting
subdivision (c)’s first sentence to delay petitioner’s right to
counsel.
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The briefing schedule established by subdivision (c) also
belies this “two-step” theory. The Court of Appeal and the
People presume that the trial court’s “first stage” prima facie
review will take place before the appointment of counsel and the
submission of written briefs. (See Lewis II, supra, 43
Cal.App.5th at p. 1140.) The People assert that “[t]he court can
easily conduct the step one analysis without the prosecutor
running afoul of the 60-day deadline, or the court may grant the
prosecutor an extension of time.” In Tarkington, the majority
inferred from subdivision (c)’s briefing deadlines “that the
Legislature simply intended to ensure that the petition is
evaluated, from start to finish, in an expeditious fashion. It is
to be expected that the superior court will promptly rule on
eligibility; running the briefing period from the date of the
petition’s filing ensures that this is so, absent good cause for a
longer period.” (Tarkington, supra, 49 Cal.App.5th at p. 904, fn.
9, review granted.) But that is not what the statute says. (See
Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th
1094, 1103 [“it is well settled that we must look first to the words
of the statute, ‘because they generally provide the most reliable
indicator of legislative intent’ ”].)
Section 1170.95, subdivision (c) expressly requires that a
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.”
(§ 1170.95, subd. (c), italics added.) “ ‘[I]f the Legislature had
anticipated that the court would undertake its own review of the
merits of the petition as an intermediate step before appointing
counsel, it would have calculated the deadlines not from the date
of service of the petition but instead from the date the court
completed its initial review. And though the Legislature
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required the prosecution to respond within 60 days of being
served with the petition, it did not create a deadline for the court
to conduct an intermediate review.’ ” (Cooper, supra, 54
Cal.App.5th at p. 121, review granted, quoting Tarkington,
supra, 49 Cal.App.5th at p. 920 (dis. opn. of Lavin, J.), review
granted, fn. omitted.) The briefing deadlines may only be
extended “for good cause.” (§ 1170.95, subd. (c).)
Though the structure envisioned by the People and the
Court of Appeal assumes that the trial courts will “promptly rule
on eligibility” (Tarkington, supra, 49 Cal.App.5th at p. 904, fn.
9, review granted), there is nothing in the statute that compels
them to do so and, predictably, our busy trial courts may be
unable to turn to these petitions in less than 60 days. There is
no time limit by which the trial court must make a ruling. This
means that courts can rule, and have ruled, on the so-called
first-step prima facie review after 60 days have passed. The
effect of the People’s interpretation is that the prosecution may
be compelled to file its response before the court makes its “first-
step” prima facie determination. Creating this artificial first
step (which is unencumbered by any time limits) means that the
trial court can, and sometimes does, wait for the prosecution’s
response and then deny the petition before the petitioner even
files a reply. Furthermore, since the briefing deadlines are
triggered by the filing of the petition, the parties will likely begin
preparing their briefs at the same time the court is conducting
its first-step review, the result of which is that the court and the
parties may be duplicating their efforts by conducting
essentially the same type of review of the same documents at
the same time. Moreover, if the trial court awaits full briefing
on its first-step prima facie review and then decides that the
petitioner has met his or her burden, the subdivision, by its
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terms, does not contemplate any additional briefing for the
second-step prima facie review. While the People propose that
the trial courts can extend time for the filing of the response,
and perhaps courts may order supplemental briefing for the
second-step prima facie review, these options deviate
considerably from the briefing schedule set out by the statute
itself.
In addition, the People assume (as they must in order to
avoid the illogical conclusion that the petitioner must file a
written reply to the prosecution’s response without the aid of
counsel) that the petitioner’s counsel will assist in preparing a
reply. But, again, there is no time limit for the trial court to
conduct its so-called first step review, which means that, absent
a ruling from the trial court, petitioners may be forced to file
their reply briefs without the assistance of counsel. (See Cooper,
supra, 54 Cal.App.5th at p. 121, fn. 8, review granted [“If the
Legislature intended an initial prima facie review before the
parties submitted briefing, surely a better way to ensure that a
trial court conducted it promptly would be to impose a deadline
on the court, not the prosecution”].) Thus, the People’s
interpretation risks creating a highly disorganized and
uncertain briefing schedule, whereby the parties have no idea
whether the court will rule before their statutory deadlines come
due. This means that the parties may prepare their briefs even
if the court rules before they are filed. Under our reading, the
parties can be confident that the court will not act on a petition
until after briefing is complete.4
4
We recognize that, because the time for briefing runs from
the “service of the petition,” any delays in appointing counsel
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All of this, of course, lays bare the fallacy of the so-called
first-step prima facie framework: because the briefing schedule
is tied to the filing of the petition itself and because there is no
time limit by which courts must make this purported “first step”
analysis, section 1170.95, subdivision (c) does not envision a
structure by which courts can make an initial determination
without briefing and without the appointment of counsel.
Instead, there is a much more logical interpretation of this
provision, and it is the one we adopt here: a complying petition
is filed; the court appoints counsel, if requested; the issue is
briefed; and then the court makes one (not two) prima facie
determination.5
The People’s interpretation also raises serious questions
about how to distinguish between the so-called first-step and
second-step prima facie analyses. The Court of Appeal
could pose an obstacle to a represented petitioner submitting a
reply within the required timeframe. (§ 1170.95, subd. (c).) As
a general matter, a trial court should afford both parties the
opportunity to brief the question of a petitioner’s eligibility for
relief and may extend the briefing deadlines “for good cause” as
necessary to ensure that such an opportunity is meaningful.
(§ 1170.95, subd. (c).)
5
In concluding that the trial court could review the record
of conviction before appointing counsel, the Court of Appeal
analogized to section 1170.18 (enacted by Proposition 47 in
2014) and section 1170.126 (enacted by Proposition 36 in 2012).
(See Lewis II, supra, 43 Cal.App.5th at pp. 1137–1138.) We find
the reliance on these sections unhelpful because there are
significant differences in the way the statutes are drafted.
Specifically, unlike section 1170.95, neither section 1170.18 nor
section 1170.126 expressly provides for the appointment of
counsel or setting of a briefing schedule respecting the prima
facie determination.
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acknowledged that “[i]t is not clear from the text of subdivision
(c) what, if any, substantive differences exist between” the two
prima facie showings the court identified. (Lewis II, supra, 43
Cal.App.5th at p. 1140, fn. 10.) The Court of Appeal ultimately
concluded that: “We need not decide this issue because the court
properly concluded that defendant was neither within the
provisions of the statute, nor entitled to relief, as a matter of law
based on the record of conviction.” (Ibid.) We share the Court
of Appeal’s reluctance to distinguish the “first step” prima facie
review from the “second step,” but we come to a different
conclusion: the reason the steps sound virtually
indistinguishable is because there are not two steps at all.
The People admit that “[t]he substantive question in step
two is the same as in step one — whether the record of
conviction shows the petitioner is ineligible for relief as a matter
of law.” However, they argue that the so-called steps “may be
distinct in time and manner of presentation even if the legal
question they pose is the same.” While the People accept that
there “is no textual basis” to distinguish between the steps, they
posit that appointing counsel “at step two may be helpful for
practical reasons.” More specifically, the People argue, “at step
two, ‘the prosecutor may be able to identify additional material
from the record of conviction not accessible to, or reviewed by,
the court during its first prima facie determination (for example,
jury instructions) that establish the petitioner is not eligible for
relief. In a reply the petitioner, represented by counsel, may
rebut the prosecutor’s claim of ineligibility.’ (Verdugo, supra, 44
Cal.App.5th at p. 330, fn. 9, review granted.)”
According to the People’s argument, the substantive
question in step two is the same as step one and the court may
rely on precisely the same information it relied on in step one.
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Opinion of the Court by Groban, J.
At core, the People’s position is that the only difference between
the two steps is that under the first step the trial court can act
without giving petitioner an opportunity to be heard and
without giving petitioner a lawyer. We disagree.
In sum, subdivision (c) does not establish an internal,
threshold barrier to the appointment of counsel and the
opportunity for briefing.
C. Other Interpretive Aids
Even if we considered the language and structure of
section 1170.95, subdivision (c) to be susceptible to the Court of
Appeal’s piecemeal reading, “ ‘other aids, such as the statute’s
purpose, legislative history, and public policy,’ ” support our
interpretation. (Jones v. Lodge at Torrey Pines Partnership
(2008) 42 Cal.4th 1158, 1163, quoting Coalition of Concerned
Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733,
737.)
As previously noted, Senate Bill 1437 was enacted “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).) Lewis points out, “section 1170.95 requires legal and
factual inquiry into complex legal theories (felony murder, and
natural and probable consequences) not easily understood by an
unrepresented litigant.” Appointing counsel to assist a
petitioner in navigating these complex theories, upon the filing
of a facially sufficient petition, promotes the reliability of section
1170.95’s petitioning process and thereby advances Senate Bill
1437’s stated purpose.
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PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
The Court of Appeal concluded it was “sound policy” to
delay the appointment of counsel in the manner it described
because it “ ‘would be a gross misuse of judicial resources to
require the issuance of an order to show cause or even
appointment of counsel based solely on the allegations of the
petition, which frequently are erroneous, when even a cursory
review of the court file would show as a matter of law that the
petitioner is not eligible for relief.’ ” (Lewis II, supra, 43
Cal.App.5th at p. 1138, quoting Couzens et al., Sentencing Cal.
Crimes (The Rutter Group 2019) ¶ 23:51(H)(1), pp. 23–150 to
23–151; accord, Tarkington, supra, 49 Cal.App.5th at p. 901,
review granted.)
However, noncomplying petitions may be quickly screened
out under subdivision (b)(2) of section 1170.95. Further, the
requirement that a petition include “[a] declaration by the
petitioner that he or she is eligible for relief under this section,
based on all the requirements of subdivision (a)” (§ 1170.95,
subd. (b)(1)(A)) should discourage frivolous petitions. Lastly, as
Lewis himself concedes, after the appointment of counsel the
parties’ briefing, as contemplated by subdivision (c), does not
need to be extensive. (See Tarkington, supra, 49 Cal.App.5th at
p. 925 (dis. opn. of Lavin, J.), review granted [“a brief need be no
longer than the [summary] order the court prepared in this
case”].) Additionally, appointed counsel may ultimately
conclude that a petition is clearly meritless and recommend that
the petition be withdrawn. Conversely, the parties may
stipulate that the petitioner is entitled to relief.
Of course, these devices will not screen out all meritless
petitions. Subdivision (b)(2), for example, only screens out
noncomplying petitions, not petitions that lack substantive
merit. Similarly, despite the declaration requirement under
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PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
subdivision (b)(1)(A), some petitioners may nonetheless file
petitions even when they are not eligible for relief. Section
1170.95 is clearly not without expense. But it is for the
Legislature to balance costs with rewards and, here, the
Legislature appears to have concluded that the benefits to be
gained from providing broad access to counsel, in order to ensure
that all those entitled to resentencing are able to obtain relief,
outweigh the costs of appointing counsel in many cases where
no relief will prove available.
Indeed, the legislative history of Senate Bill 1437
demonstrates the Legislature’s full awareness of its potential
impact on judicial resources. The Senate and Assembly
Appropriations Committees examined the potential fiscal
impact of Senate Bill 1437. They acknowledged that Senate Bill
1437 could lead to “potentially-major costs in the millions of
dollars” for courts to process petitions and hold resentencing
hearings, as well as “potentially-major costs in the hundreds of
thousands of dollars to the millions of dollars” to allow the
Department of Corrections and Rehabilitation to transport
inmates to resentencing hearings. (Sen. Com. on
Appropriations, Analysis of Sen. Bill No. 1437 (2017–2018 Reg.
Sess.) as introduced Feb. 16, 2018, p. 1; see also Assem. Com. on
Appropriations, Analysis of Sen. Bill 1437 (2017–2018 Reg.
Sess.) as amended May 25, 2018, p. 1; Sen. Rules Com., Off. of
Sen. Floor Analyses, 3d reading analysis of Sen. Bill 1437 (2017–
2018 Reg. Sess.) as amended May 29, 2018, p. 6.) Senate Bill
1437 would also entail “[u]nknown costs to county District
Attorneys’ Offices and Public Defenders’ Offices to litigate
petitions for resentencing. These costs likely would be
reimbursable by the state, the extent to which would be
determined by the Commission on State Mandates.” (Sen. Com.
19
PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
on Appropriations, Analysis of Sen. Bill 1437 (2017–2018 Reg.
Sess.) as introduced Feb. 16, 2018, p. 1.)
On the other hand, there could also be significant cost
savings for the Department of Corrections and Rehabilitation.
The Senate Appropriations Committee observed that,
depending on the number of individuals who could successfully
petition for reduced sentences under Senate Bill 1437, the
proposed legislation could result in “[u]nknown, potentially-
major out-year or current-year savings in reduced incarceration
expenses,” and “[w]hen these averted admissions are
compounded, the savings could reach into the millions of dollars
annually.” (Sen. Com. on Appropriations, Analysis of Sen. Bill
1437 (2017–2018 Reg. Sess.) as introduced Feb. 16, 2018, p. 1.)
In apparent recognition of the expenses accompanying its
implementation, Senate Bill 1437 provides: “If the Commission
on State Mandates determines that this act contains costs
mandated by the state, reimbursement to local agencies and
school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.” (Stats. 2018, ch. 1015, § 5.)
This legislative background shows the Legislature did, in
fact, engage in the exact type of cost-benefit assessment and
policy determination it was entitled to make. (See Superior
Court v. County of Mendocino (1996) 13 Cal.4th 45, 53 [“The
judiciary, in reviewing statutes enacted by the Legislature, may
not undertake to evaluate the wisdom of the policies embodied
in such legislation; absent a constitutional prohibition, the
choice among competing policy considerations in enacting laws
is a legislative function”].)
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PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
Permitting trial courts to summarily deny relief before the
appointment of counsel would not significantly conserve judicial
resources. “[E]ven assuming the practice leads to short-term
efficiencies, those savings are a false economy that shifts work
from trial counsel to appellate counsel and from the trial courts
to the appellate courts.” (Tarkington, supra, 49 Cal.App.5th at
p. 925 (dis. opn. of Lavin, J.), review granted.) Leaving it to an
appellate court to review a summary denial, on an
underdeveloped record, arguably places a greater strain on
judicial resources than appointing counsel from the outset. (See
Tarkington, at p. 926 [“Cases in which the prosecution
assembles the record below and writes a short explanatory brief
before defense counsel submits on the record are much less time
consuming on appeal than cases like this one, in which we
cannot even determine the basis for the trial court’s decision”].)
Indeed, the two-part process contemplated by the Court of
Appeal can create unnecessary inefficiencies. It can be
inefficient to ask the trial court to make these threshold legal
determinations without the aid of briefing. It is inefficient to
expect prosecutors to start briefing the question of whether a
petitioner may be eligible for relief under section 1170.95
without knowing if the trial court may simply issue a “first-step”
prima facie denial before their brief is filed. And it is inefficient
to ask our Courts of Appeal to review these “first-step” prima
facie determinations, all without the aid of a fully developed
record below.
Consider a situation where the trial court, without
briefing, summarily denies a petition, but does so on an
improper basis. Petitioner then obtains counsel on appeal who
must argue that the trial court made a legal error. The Court of
Appeal is able to decipher the legal error (despite the absence of
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PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
a fully developed record below) and then must remand to the
trial court to reassess the question of whether the record entitles
the petitioner to an order to show cause. This is exactly what
happened in Cooper. (See Cooper, supra, 54 Cal.App.5th at pp.
123–126, review granted; id. at p. 110 [observing that, while
some documents were in the appellate record, “it is unclear what
other documents the court may have considered”].) That
sequence of events is far from efficient.
In sum, “other aids” resolve any conceivable ambiguity in
the statutory language of section 1170.95, subdivision (c) in
favor of an interpretation requiring that counsel be appointed
upon the filing of a facially sufficient petition. (Jones v. Lodge
at Torrey Pines Partnership, supra, 42 Cal.4th at p. 1163.)
III. RECORD OF CONVICTION
Having concluded that a petitioner is statutorily entitled
to counsel, if requested, upon the filing of a facially sufficient
petition, and that subdivision (c) describes only one prima facie
showing, we now turn to the question of whether a trial court
can rely on the record of conviction in determining whether that
single prima facie showing is made. The answer is yes. In fact,
Lewis agrees that “the court may — with the benefit of advocacy
for both sides — consider the record of conviction at [the prima
facie] stage.” In Lewis’s view, appointed counsel and the
prosecutor “can and should make use of the record of conviction.”
Notably, there is no disagreement amongst the Courts of Appeal
regarding the propriety of the parties and the trial court looking
at the record of conviction after the appointment of counsel. (See
Cooper, supra, 54 Cal.App.5th at p. 122, review granted, italics
added, footnote omitted [explaining that the legislative history
of Senate Bill 1437 indicates “the Legislature intended for the
22
PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
prosecutor, not the court, to take the lead in identifying which
petitioners are not entitled to relief as a matter of law based on
the record of conviction”]; Daniel, supra, 57 Cal.App.5th at
p. 677, review granted [“While we agree with Daniel that a trial
court may not rely on the record of conviction to deny a facially
sufficient petition, he offers no reason why a court would be
prohibited from relying on the record of conviction to deny a
petition after deeming it facially sufficient, appointing counsel,
and receiving briefing from the parties”]; see also Tarkington,
supra, 49 Cal.App.5th at p. 925 (dis. opn. of Lavin, J.), review
granted, italics added [“If, based on the record of conviction or
the facts of the case, a petition is clearly meritless, the
prosecutor can submit a simple brief summarizing why the
petitioner is not entitled to a resentencing hearing”].)
The record of conviction will necessarily inform the trial
court’s prima facie inquiry under section 1170.95, allowing the
court to distinguish petitions with potential merit from those
that are clearly meritless. This is consistent with the statute’s
overall purpose: to ensure that murder culpability is
commensurate with a person’s actions, while also ensuring that
clearly meritless petitions can be efficiently addressed as part of
a single-step prima facie review process. (See Stats. 2018, ch.
1015, § 1, subd. (f).)
While the trial court may look at the record of conviction
after the appointment of counsel to determine whether a
petitioner has made a prima facie case for section 1170.95 relief,
the prima facie inquiry under subdivision (c) is limited. Like the
analogous prima facie inquiry in habeas corpus proceedings,
“ ‘the court takes petitioner’s factual allegations as true and
makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
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PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
allegations were proved. If so, the court must issue an order to
show cause.’ ” (Drayton, supra, 47 Cal.App.5th at p. 978,
quoting Cal. Rules of Court, rule 4.551(c)(1)).) “[A] court should
not reject the petitioner’s factual allegations on credibility
grounds without first conducting an evidentiary hearing.”
(Ibid., fn. omitted, citing In re Serrano (1995) 10 Cal.4th 447,
456 (Serrano).) “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.’ ” (Drayton, at p. 979,
quoting Serrano, at p. 456.)
Appellate opinions, like Lewis I, are generally considered
to be part of the record of conviction. (See People v. Woodell
(1998) 17 Cal.4th 448, 454–455.) However, as we cautioned in
Woodell, the probative value of an appellate opinion is case-
specific, and “it is certainly correct that an appellate opinion
might not supply all answers.” (Id. at p. 457.) In reviewing any
part of the record of conviction at this preliminary juncture, a
trial court should not engage in “factfinding involving the
weighing of evidence or the exercise of discretion.” (Drayton,
supra, 47 Cal.App.5th at p. 980.) As the People emphasize, the
“prima facie bar was intentionally and correctly set very low.”
In sum, the parties can, and should, use the record of
conviction to aid the trial court in reliably assessing whether a
petitioner has made a prima facie case for relief under
subdivision (c).6
6
A petitioner is entitled to relief under section 1170.95 only
when he or she “could not be convicted of first or second degree
murder because of changes to section 188 or 189 made effective
24
PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
IV. PREJUDICE
A. Standard of Review
Lewis contends that a trial court’s “consideration of the
record of conviction in connection with a section 1170.95 petition
is a ‘critical stage’ of the criminal process” such that the
deprivation of counsel during such consideration, whether
viewed as a state statutory violation or as a federal or state
constitutional violation, is structural error requiring automatic
reversal. We disagree.
1. The failure to appoint counsel was error under
state statutory law only.
There is no unconditional state or federal constitutional
right to counsel to pursue collateral relief from a judgment of
conviction. (See In re Barnett (2003) 31 Cal.4th 466, 475 [no
federal or state “constitutional right to counsel for seeking
collateral relief from a judgment of conviction via state habeas
corpus proceedings”]; People v. Shipman (1965) 62 Cal.2d 226,
232 [observing the same in the context of coram nobis relief];
Pennsylvania v. Finley (1987) 481 U.S. 551, 556, 557 [observing
that “[p]ostconviction relief is even further removed from the
criminal trial” and concluding that respondent had “no
underlying constitutional right to appointed counsel in state
postconviction proceedings”].) However, we have held that “if a
January 1, 2019.” (§ 1170.95, subd. (a)(3).) We are not asked to
resolve what is substantively required under subdivision (a)(3);
here we only address if, in assessing whether the petitioner has
made a prima facie case for relief under subdivision (c), the court
may consider documents in the record of conviction if they are
relevant to the underlying substantive question. Our holding in
this case means there is no categorical bar to consulting the
record of conviction at the prima facie stage.
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PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
[habeas] petition attacking the validity of a judgment states a
prima facie case leading to issuance of an order to show cause,
the appointment of counsel is demanded by due process
concerns.” (In re Clark (1993) 5 Cal.4th 750, 780.) When “an
indigent petitioner has stated facts sufficient to satisfy the court
that a hearing is required, his claim can no longer be treated as
frivolous and he is entitled to have counsel appointed to
represent him.” (Shipman, at p. 232; see also People v. Fryhaat
(2019) 35 Cal.App.5th 969, 980–981 [due process requires
appointment of counsel when defendant establishes prima facie
case for postconviction relief under section 1473.7]; People v.
Rouse (2016) 245 Cal.App.4th 292, 299 [due process right to
counsel at a Proposition 47 resentencing hearing arose after the
“[d]efendant passed the eligibility stage”].)
For the same reasons, a petitioner is not constitutionally
entitled to counsel at the outset of the subdivision (c) stage of
the section 1170.95 petitioning process. (Accord Daniel, supra,
57 Cal.App.5th at p. 676, review granted.) At that point, the
petitioner has not yet “stated facts sufficient to satisfy the court
that a hearing is required,” but merely endeavors to do so.
(Shipman, supra, 62 Cal.2d at p. 232.) Instead, the Legislature,
weighing the costs in favor of broader access to counsel (see
discussion ante), created a purely statutory right to counsel that
attaches before the issuance of an order to show cause. Thus,
the trial court’s failure to appoint counsel to represent Lewis
was state law error only.
2. The error is reviewed for prejudice under
Watson.
Typically, when an “error is purely one of state law, the
Watson harmless error test applies.” (People v. Epps (2001) 25
Cal.4th 19, 29; see Watson, supra, 46 Cal.2d at p. 836.)
26
PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
However, state statutory error may amount to structural error
if it is “ ‘analogous to’ . . . ‘the total deprivation of the right to
counsel at trial.’ ” (People v. Lightsey (2012) 54 Cal.4th 668, 699
(Lightsey), quoting Arizona v. Fulminante (1991) 499 U.S. 279.)
Lewis likens the deprivation of counsel in his case to that
in Lightsey, supra, 54 Cal.4th at pp. 699–700, wherein we held
the trial court’s failure to appoint counsel to represent a
defendant during a mental competency proceeding, in violation
of section 1368, was structural error. In considering the
question of prejudice in Lightsey, we observed that, “[a]s with a
pervasive Sixth Amendment violation, the statutory violation
here cannot be likened to ‘trial error’ . . . . Attempting to assess
the effect of the absence of counsel on the trial court’s finding of
competence is, in truth, no different than attempting to assess
the effect on a jury’s final verdict of the absence of counsel
during a trial on substantive charges: there is no reasoned
manner in which to do so because the lack of true adversarial
testing denied defendant the basic procedure by which his
competence should have been determined.” (Id. at p. 701.) We
further observed that permitting an individual whose mental
competence is contested to self-represent and maintain his or
her competence causes “a breakdown . . . in the process of
meaningful adversarial testing central to our system of justice.”
(Id. at pp. 696–697.)
Lewis’s reliance on Lightsey proves unpersuasive; no
similar analogy to the “total deprivation of the right to counsel
at trial” (Lightsey, supra, 54 Cal.4th at p. 699) can be made when
a section 1170.95 petitioner is deprived of his right to counsel
27
PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
under subdivision (c).7 Unlike the deprivation of counsel at a
competency hearing, where a defendant’s very ability to
understand the nature and purpose of the criminal proceedings
against him is in dispute (see Lightsey, supra, 54 Cal.4th at
p. 690), the prima facie stage under subdivision (c) is not
similarly adversarial. Instead, the trial court asks only whether
the petitioner can make a prima facie showing for relief; as we
explained ante, at the prima facie stage, a petitioner’s
allegations should be accepted as true, and the court should not
make credibility determinations or engage in “factfinding
involving the weighing of evidence or the exercise of discretion.”
(Drayton, supra, 47 Cal.App.5th at p. 980.) Lewis must
therefore “demonstrate there is a reasonable probability that in
the absence of the error he . . . would have obtained a more
favorable result.” (Lightsey, supra, 54 Cal.4th at p. 699, citing
People v. Weaver (2001) 26 Cal.4th 876, 968; Watson¸ supra, 46
Cal.2d at p. 836.) More specifically, 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.’ ”
(Daniel, supra, 57 Cal.App.5th at p. 676, review granted.)
7
Lewis makes no argument that he should be entitled to
present new or additional evidence at the prima facie stage
pursuant to subdivision (c) of section 1170.95. We assume, for
purposes of our analysis, that petitioners may not present new
evidence at the prima facie stage. We express no view on the
merits of this assumption.
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PEOPLE v. LEWIS
Opinion of the Court by Groban, J.
B. The Court of Appeal Shall Determine on
Remand Whether the Error Was Prejudicial
Lewis contends that “[e]ven if this Court, like the Court of
Appeal in Daniel, [supra, 57 Cal.App.5th at p. 676, review
granted] leaves open the possibility of harmless error, the error
was not harmless in this case. Counsel could have assisted Mr.
Lewis in making a prima facie factual case that his conviction
for murder rests on now-forbidden natural and probable
consequences reasoning.” The People disagree. We decline to
resolve this dispute and remand the cause to the Court of Appeal
for an evaluation of prejudice under Watson in the first instance.
V. DISPOSITION
We reverse the judgment of the Court of Appeal. The
cause is remanded to the Court of Appeal for further proceedings
consistent with the views expressed herein.
GROBAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
JENKINS, J.
29
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Lewis
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 43 Cal.App.5th 1128Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S260598
Date Filed: July 26, 2021
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Ricardo R. Ocampo
__________________________________________________________
Counsel:
Robert D. Bacon, under appointment by the Supreme Court, for
Defendant and Appellant.
Sara Ross, Stephen Dunkle and John T. Philipsborn for California
Attorneys for Criminal Justice as Amicus Curiae on behalf of
Defendant and Appellant.
Kate Chatfield for Senator Nancy Skinner and The Justice
Collaborative Institute as Amici Curiae on behalf of Defendant and
Appellant.
Sean Riordan, Summer Lacey and David Loy for American Civil
Liberties Union of Northern California, American Civil Liberties Union
of Southern California and American Civil Liberties Union of San
Diego and Imperial Counties as Amici Curie on behalf of Defendant
and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen, Idan Ivri and Amanda V.
Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
Mark Zahner and Nicole C. Rooney, Deputy District Attorney (San
Diego), for California District Attorneys Association as Amicus Curiae
for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Robert D. Bacon
484 Lake Park Avenue, PMB 110
Oakland, CA 94610
(510) 834-6219
Idan Ivri
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6168