People v. King CA2/2 ( 2021 )

Filed 1/27/21 P. v. King CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301396
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A393928)
v.
CHARLES EARL KING,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Norman J. Shapiro, Judge. Affirmed.
Daniel G. Koryn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Charles S. Lee and
David W. Williams, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant and appellant Charles Earl King (defendant)
appeals from the summary denial of his petition for resentencing
under Penal Code section 1170.95.1 Defendant contends that the
trial court was required to appoint counsel and permit briefing
prior to making a determination of defendant’s eligibility for
relief. Finding no merit to defendant’s contention, we affirm the
order.
BACKGROUND
The 1984 conviction2
On August 9, 1983, De Jun Gant was shot and killed in the
presence of at least six witnesses as he was leaving a liquor store.
Four of the witnesses positively identified defendant as the
shooter, and the other two witnesses said that defendant
resembled the shooter. Defendant was convicted of first degree
murder with a true finding pursuant to section 12022.5 that he
personally used a firearm. Defendant was sentenced to a prison
term of 27 years to life. The conviction was affirmed on appeal.
The section 1170.95 petition
In May 2019, defendant filed a petition for resentencing
under section 1170.95. On the form petition, defendant checked
the boxes for the allegations that he had been charged with
murder, that he was not the actual killer, that he was convicted
“pursuant to the felony murder rule or the natural and probable
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 We summarize the facts from our prior, unpublished
opinion affirming defendant’s conviction in People v. King (Dec.
20, 1985, B008353) [nonpub. opn.] (King I).)
2
consequences doctrine,” and that his murder conviction would be
invalid under the “changes made to Penal Code §§ 188 and 189,
effective January 1, 2019.” He also requested the appointment of
counsel.
On July 15, 2019, the trial court summarily denied
defendant’s section 1170.95 petition on the ground that defendant
had been convicted of first degree murder as an actual shooter,
making him ineligible for resentencing under section 1170.95.
Defendant filed a timely notice of appeal from the order
denying his petition.
DISCUSSION
Defendant contends the trial court erred by summarily
denying his resentencing petition without appointing counsel to
represent him, in violation of his constitutional rights.3
Defendant argues that the trial court was required to review only
his petition to determine his eligibility. He argues that as his
petition contained all the required allegations, the court was
required to appoint counsel, receive briefs from both the
prosecution and the defense, determine whether he made a prima
facie showing of entitlement to relief, and if so, issue an order to
show cause why relief should not be granted.
3 Defendant does not specify which constitutional rights he
claims to have been violated. In his reply brief, defendant argues
that the trial court’s error was structural, requiring automatic
reversal, but he does not provide argument or authority in
support of this assertion. We need not consider such “perfunctory
assertion[s] unaccompanied by supporting argument. [Citation.]”
(People v. Smith (2003) 30 Cal.4th 581, 616, fn. 8.)
3
A petitioner under section 1170.95 is entitled to the
appointment of counsel, the opportunity for further briefing, and
a hearing only if in his petition, a prima facie showing that he is
entitled to relief is made. (See § 1170.95, subds. (c) & (d).) A
“‘prima facie showing is one that is sufficient to support the
position of the party in question.’ [Citation.]” (People v.
Drayton (2020) 47 Cal.App.5th 965, 977 (Drayton), quoting
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) As
relevant here, a person is entitled to relief under section 1170.95
if, (1) “[a] complaint, information, or indictment was filed against
[him] that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable
consequences doctrine,” (2) he “was convicted of first degree or
second degree murder following a trial,” 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.” (§ 1170.95,
subd. (a).) A person may be convicted of murder, even after the
2019 changes to sections 188 and 189, if he “was the actual
killer.” (§ 189, subd. (e)(1).)
Where a petition alleges each element necessary to make
out a prima facie case for relief under section 1170.95, a trial
court is not required to accept those allegations at face value, but
may also examine the record of conviction. (People v. Lewis
(2020) 43 Cal.App.5th 1128, 1137, review granted Mar. 18, 2020,
S260598; People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330,
review granted Mar. 18, 2020, S260493; People v. Tarkington
(2020) 49 Cal.App.5th 892, 899-900, 908-909, review granted
Aug. 12, 2020, S263219 (Tarkington); Drayton, supra, 47
Cal.App.5th at p. 968; People v. Edwards (2020) 48 Cal.App.5th
666, 673-674, review granted July 8, 2020, S262481; People v.
4
Torres (2020) 46 Cal.App.5th 1168, 1178, review granted June 24,
2020, S262011; but see People v. Cooper (2020) 54 Cal.App.5th
106, 119-121, review granted Nov. 10, 2020, S264684.) The
record of conviction includes such documents as the “complaint,
information or indictment filed against the petitioner; the verdict
form or factual basis documentation for a negotiated plea; and
the abstract of judgment.” (Verdugo, at pp. 329-330.) The record
of conviction may also include any appellate opinion in the case.
(See Lewis, at pp. 1138-1139.) However, the contents of the
record of conviction will defeat a defendant’s prima facie showing
only when the record “show[s] as a matter of law that the
petitioner is not eligible for relief.” (Lewis, at p. 1138, italics
added; Verdugo, at p. 333; Torres, at p. 1177; Drayton, at p. 968;
see also People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review
granted Mar. 18, 2020, S260410 (Cornelius) [record must show
defendant is “indisputably ineligible for relief”].)
Defendant suggests that the trial court should have
followed an analogous habeas corpus procedure, to assume the
truth of the petition’s factual allegations in determining whether
a prima facie showing of entitlement to relief was been made.
However, even in a habeas proceeding a court is not required to
assume the allegations are true if they are directly contradicted
by the court’s own records. (In re Serrano (1995) 10 Cal.4th 447,
456.)
Here, the trial court correctly concluded that defendant did
not make a prima facie case for relief because the record of
conviction establishes, as a matter of law, that he is not eligible
for relief. The jury found beyond a reasonable doubt that
defendant was the actual killer and personally used a firearm.
Thus, the changes to sections 188 and 189 are inapplicable, and
5
defendant is ineligible for resentencing under section 1170.95 as
a matter of law. (See Cornelius, supra, 44 Cal.App.5th at p. 58;
Tarkington, supra, 49 Cal.App.5th at pp. 899, 910.)
We agree with respondent that if the trial court had
followed an erroneous procedure, any error would be harmless.
Defendant argues that we should apply the test applied to federal
constitutional error as stated in Chapman v. California (1967)
386 U.S. 18, 24, to determine whether the error was harmless
beyond a reasonable doubt.4 As the record of conviction shows
that defendant is ineligible for resentencing under section
1170.95 as a matter of law, we would find the claimed error
harmless under any standard.
4 Defendant does not identify the constitutional error he
believes was violated. (Ante, fn. 3.) However, assuming he
means to suggest a violation of his right to counsel under the
Sixth Amendment to the United States Constitution, prisoners
have no federal “constitutional right to counsel when mounting
collateral attacks upon their convictions [citation].”
(Pennsylvania v. Finley (1987) 481 U.S. 551, 555.) Under the
federal constitution, the right to appointed counsel extends only
to trial and the first appeal; and when states enact statutes to
provide other postconviction relief, they have substantial
discretion to develop and implement such programs. (Id. at
pp. 557-559.)
6
DISPOSITION
The order of the superior court denying defendant’s petition
for resentencing under section 1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST
7