P. v Odom

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Filed 2/25/21 P. v Odom CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
RYAN ODOM,
Defendant and Appellant.
A160316
(Solano County
Super. Ct. No. VCR211543)
MEMORANDUM OPINION1
Defendant was convicted of torture and first degree murder with the
special circumstances of kidnapping with intent to kill and intentional
murder involving the infliction of torture. (Pen. Code, §§ 187, 190.2,
subds. (a)(17), (18).)2 The victim was “beaten, hog-tied, and shot in the head
because defendant . . . believed he stole a PlayStation from her.” (People v.
Odom (2016) 244 Cal.App.4th 237, 240 (Odom). Defendant participated in
1 This appeal is appropriately resolved by memorandum opinion in
accordance with California Standards of Judicial Administration, section 8.1.
2 All further references are to the Penal Code unless otherwise
indicated.

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the beating of the victim, and another individual shot him. (Id. at pp. 243-
245.) We affirmed defendant’s conviction. (Id. at pp. 257-258.)3
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg.
Sess.) (Senate Bill 1437), which altered liability for murder under the
theories of felony murder and the natural and probable consequences
doctrine. The bill also established a procedure, under newly enacted section
1170.95, for eligible defendants to petition for resentencing.
Defendant filed three petitions for resentencing under that section, all
of which were denied. This appeal is from the order denying her two most
recent petitions, in which she alleged she was convicted of murder under the
felony murder doctrine or the natural and probable consequences doctrine
and could no longer be convicted of murder due to Senate Bill 1437’s changes
to the law. Defendant checked the boxes on the form petition indicating she
“was not the actual killer” and she “did not, with the intent to kill, aid, abet,
counsel, command, induce, request, or assist the actual killer in the
commission of murder in the first degree.” She also requested counsel be
appointed.
The trial court denied the petitions without appointing counsel based
on her record of conviction, stating the petitions “do not state a prima facie
basis for relief.” The court concluded “[c]ontrary to the allegations in her . . .
3 We grant defendant’s request for judicial notice of our prior opinion.
(Evid. Code, §§ 452, subd. (d), 459.) We deny defendant’s request for judicial
notice of two letters from the Judicial Council, one to the bill’s author and one
to the former governor, regarding its position on Senate Bill 1437. The court
in People v. Tarkington (2020) 49 Cal.App.5th 892, rev. granted Aug. 12,
2020, S263219, concluded the same two letters “are not cognizable legislative
history” and “are not proper subjects of judicial notice.” (Id. at pp. 904-907,
fn. 12.)

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petition, [defendant] was not prosecuted under a felony-murder theory, nor
was her jury so instructed, in connection with the torture murder allegations.
She was convicted of first degree murder and torture, and both special
circumstances were found to be true. The torture special circumstances
finding . . . required the jury to find, beyond a reasonable doubt, that
[defendant] intended to kill the victim. The record of conviction in this case,
including the Court of Appeal’s conclusion that ‘the evidence that the
defendant decided [the victim] should be killed is overwhelming’ [citation],
and that the jury found true the [Penal Code] § 190.2 (a)(18) special
circumstance (intentional murder involving the infliction of torture) means
that [defendant] is collaterally estopped from relitigating the issues that were
necessary to those decisions.”
On appeal, defendant challenges the summary denial of her
resentencing petitions without appointment of counsel to represent her. We
conclude the trial court’s denial of the petition without appointing counsel
was harmless, and affirm.
DISCUSSION
“Senate Bill 1437 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).) Substantively, Senate Bill 1437 accomplishes
this by amending section 188, which defines malice, and section 189, which
defines the degrees of murder, and as now amended, addresses felony murder
liability. Senate Bill 1437 also adds the aforementioned section 1170.95,
which allows those ‘convicted of felony murder or murder under a natural

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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 . . . .’ (§ 1170.95, subd. (a).)”
(People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
In People v. Cooper (2020) 54 Cal.App.5th 106 (rev. granted Nov. 10,
2020, S264684), this division concluded “a petitioner is entitled to counsel
upon the filing of a facially sufficient petition for relief that requests counsel
be appointed.”4 (Id. at p. 123.) The failure to appoint counsel at that
juncture, however, does not violate a federal Constitutional right, and is
therefore subject to harmless error analysis. (People v. Daniel (2020)
57 Cal.App.5th 666, 674-676 (Daniel), rev. granted Feb. 24, 2021, S266336.)
Defendant does not dispute the trial court’s conclusion that she is
ineligible for resentencing under section 1170.95 in light of the jury’s finding
true the torture special circumstances finding, since it required the jury to
find, beyond a reasonable doubt, that defendant intended to kill the victim.
(Odom, supra, 244 Cal.App.4th at pp. 240, 249.)
Instead, relying on Cooper, she asserts allowing the trial court to
“consider the ‘record of conviction,’ including the appellate opinion, in
determining whether a petitioner has established a prima facie case . . . is
unfair to an unrepresented section 1170.95 petitioner.” This is so, she asserts,
because “[t]here is a risk that propositions are more likely to look
‘indisputable’ if there is no counsel tasked with disputing them.”
4 We are aware other appellate courts have reached a contrary
conclusion, and the issue is before the California Supreme Court in Cooper
and other cases. (See, e.g., People v. Lewis (2020) 43 Cal.App.5th 1128, rev.
granted March 18, 2020, S260598; People v. Tarkington, supra,
49 Cal.App.5th 892.) While the Attorney General asserts Cooper was
wrongly decided, we need not revisit the issue, given our disposition.

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Cooper, however, did not conclude a trial court’s consideration of the
record of conviction, including the appellate court opinion, constitutes
impermissible factfinding. Rather, Cooper considered whether the court
erred in relying on the transcript of the preliminary hearing to conclude the
defendant was “ineligible for relief as a matter of law.” (Cooper, supra,
54 Cal.App.5th at p. 123.) As the court explained, at a preliminary hearing
“ ‘ “the magistrate is not a trier of fact,” ’ and a ruling holding a defendant to
answer is in no way equivalent to a jury’s factual finding or a defendant’s
admission.” (Id. at p. 124, italics omitted.) Thus, Cooper concluded the trial
court had engaged in factfinding because it relied on the preliminary hearing
transcript to determine the defendant’s murder conviction rested on a valid
theory. (Id. at p. 108.)
The vast majority of appellate courts, including this court, have
concluded that in determining whether a defendant has made a prima facie
showing of entitlement to resentencing, courts may consider the record of
conviction, which includes any prior appellate court opinions. (Daniel, supra,
57 Cal.App.5th at pp. 676-677; see People v. Garcia (2020) 57 Cal.App.5th
100, 111, rev. granted Feb. 10, 2021, S265692 [canvassing cases so holding].)
The trial court appropriately did so here, relying on the record of conviction
and the appellate opinion to determine the jury found true the special
circumstances of intentional murder involving torture and kidnapping with
intent to kill.
Thus, the record of conviction demonstrates defendant is ineligible for
relief under section 1170.95 as a matter of law, and she has failed to meet her
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,

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57 Cal.App.5th at p. 676.) Thus, any error in failing to appoint counsel was
harmless.
DISPOSITION
The order denying defendant’s resentencing petitions under section
1170.95 is affirmed.

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_________________________
Banke, J.
We concur:
_________________________
Margulies, Acting P.J.
_________________________
Sanchez, J.
A160316, People v. Odom

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