P. v. Lee

Filed 7/27/20 P. v. Lee CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
EARL ARTHUR LEE,
Defendant and Appellant.
B297565
(Los Angeles County
Super. Ct. No.TA087633)
APPEAL from an order of the Superior Court of
Los Angeles County and request to file an amicus brief, Robert J.
Perry, Judge. The order is affirmed, the request to file an amicus
brief is denied.
Charlotte E. Costan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Earl A. Lee was convicted of two counts of first
degree murder with three special circumstances, including that
he “intentionally killed the victim while [he] was an active
participant in a criminal street gang.” (Pen. Code, § 190.2, subd.
(a)(22).)1 We affirmed his conviction and sentence on direct
appeal. Appellant subsequently filed a petition for resentencing
under section 1170.95. The trial court summarily denied the
petition on two independent grounds: (1) appellant is not eligible
for resentencing because he was the actual killer, acted with the
intent to kill, and was a major participant in the crime who acted
with a reckless indifference to human life, and (2) section 1170.95
and the legislation that led to its enactment, Senate Bill 1437
(S.B. 1437), are unconstitutional.
Appellant now contends that he established a prima facie
case for relief that entitled him to counsel and a hearing, the trial
court erred by relying on the Court of Appeal opinion resolving
his direct appeal, and the trial court violated his rights to counsel
and due process of law. He also contends that S.B. 1437 and
section 1170.95 are constitutional. Respondent Attorney General
agrees that S.B. 1437 and section 1170.95 are constitutional.
Respondent further asserts, and we agree, that we need not reach
the issue of constitutionality because appellant is ineligible for
relief under section 1170.95 as a matter of law. We accordingly
deny the application of the California District Attorneys
Association to file an amicus curiae brief in support of the
unconstitutionality of S.B. 1437 and section 1170.95 and affirm
the order of the trial court.
1All further statutory references are to the Penal Code
unless otherwise indicated.

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BACKGROUND
I. Underlying Convictions
Our summary of the factual background is based upon our
opinion affirming appellant’s conviction, People v. Lee (July 2,
2010, B213692) [nonpub. opn.], which was relied upon by the trial
court and is part of the record on appeal.
During appellant’s joint trial with codefendants Calvin
Dennis and Reyon Ingram, the prosecution presented the
following evidence. On the evening of October 2, 2006, Najee
Hassan accompanied his friend Derrick Kellum to pick up
Kellum’s sons, Octavious and Derrick Junior, and take them to
Lawrence Bennett’s house. Kellum called Dennis en route to tell
Dennis he was going to Bennett’s house. Hassan testified that
Dennis met them when they arrived at Bennett’s house. Dennis
threw Kellum against a car and held a gun to him. Someone
dressed in white joined Dennis, and the two beat Kellum and
took his wallet. Dennis and his companion bumped chests and
yelled, “Front Hood,” the name of a local gang.
Derrick Junior, who was 11 years old at the time of trial,
testified that Dennis and Ingram robbed his father in front of
Bennett’s house. After the robbery, while Derrick Junior was in
the car with his father and Octavious, he heard his father
speaking angrily with someone on a cell phone and agreeing to
meet that person around the corner. Derrick Junior’s father then
stopped the car and got out. Derrick Junior heard gunshots and
saw his father fall against the car. Derrick Junior saw Dennis
standing next to where his father had been standing and
observed Ingram shooting into the car. Derrick Junior managed
to escape and run to a friend’s house. Sheriff’s deputies

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responding to the scene found Octavious lying dead outside the
driver’s side of the car. Derrick Junior’s father, Kellum, was
lying dead in the backseat. Both had suffered fatal gunshot
wounds. Law enforcement recovered eight expended cartridge
casings and six bullets from the scene. Forensic specialists were
able to determine that at least two, and possibly three, different
guns were used.
Glenn Jefferson testified that Dennis, Ingram, and
appellant came to his house on the night of the shooting; he knew
them by their gang monikers of Bay-Rob, Soulja Boy, and Payso,
respectively. Jefferson agreed to drive the trio wherever they
wanted in his mother’s black Lincoln Navigator. They left the
house with Jefferson driving, Dennis in the front passenger seat,
and Ingram and appellant in the backseat.
Dennis instructed Jefferson to drive down the street. As
they approached the corner of 134th Street and Compton Avenue,
Dennis, Ingram, and appellant jumped out of the Navigator.
Jefferson heard a voice through the speaker of Dennis’s cellphone
saying, “I just want my wallet back.” Jefferson then heard a
couple of gunshots. Ingram ran back to the Navigator with a gun
in his hand, opened the back door, and told Jefferson to wait for
the others. Appellant and Dennis subsequently got into the
vehicle, and Jefferson drove them back to Jefferson’s house.
When the men returned to the house, Jefferson saw
appellant with a wallet and Dennis counting money. Dennis said
something to the effect of, “I know Soulja Boy, he did his thing.”
Jefferson admitted on the stand that he had previously withheld
information from law enforcement and lied at two preliminary
hearings. He stated that he did so because Dennis, Ingram, and
appellant were at large and he feared for his family’s safety if he

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told anyone about the incident. Jefferson also acknowledged that
he was arrested on unrelated charges, to which he pled guilty,
while appellant’s case was pending. Jefferson denied he was
promised anything in exchange for his testimony.
Appellant’s ex-wife, Rita Gilaspie, testified that she had
been married to appellant 20 years earlier and kept in contact
with him. Sometime around the date of the incident, he called
her and said he had something important to tell her. When
Gilaspie returned appellant’s call an hour later, appellant told
her that he had been involved in a double homicide with Bay-Rob,
Soulja Boy, and another unnamed person and had “killed a kid.” .
Appellant told Gilaspie, “It was just supposed to be a robbery,”
but Bay-Rob shot the father and appellant shot the kid. He also
told her, “he was trying to turn this Buick into a Benz”; appellant
owned a Buick LeSabre at the time. Gilaspie heard voices in the
background, and appellant said, “Bay-Rob, it’s all right. This is
my wife. It’s okay, she’s cool.” Appellant told Gilaspie he was “on
the run” and needed money. Gilaspie reported the call to law
enforcement on October 16, 2006. Gilaspie acknowledged on the
stand that she had a prior felony theft conviction and a prior
misdemeanor conviction for welfare fraud. She further admitted
that she was in financial trouble, and had received $5,000,
relocation, and two months of rental assistance for her testimony.
Gilaspie also acknowledged that she had argued with appellant
in September 2006.
Gang experts testified that Dennis and appellant were
members of the Front Hood Crips, a gang that engaged in selling
narcotics and committing assaults, robberies, and murders. One
of them stated that the robbery occurred in Front Hood’s

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neighborhood and opined that both the robbery and murders
were committed for the benefit of the gang.
After appellant and Dennis were arrested, they were placed
in a jail cell where a recording device was hidden. The jury heard
a tape of their conversation. Appellant said he told police that he
did not know Dennis. Appellant expressed the view that the
prosecution had no evidence. He said, “They can’t put nobody
[on] that know . . . .” Apparently referring to Derrick Junior, who
was then 10 years old, Dennis said he believed that a witness had
to be at least 13 to testify. Dennis further claimed that
investigators did not know that appellant had been at the scene.
According to him, the police believed that Ingram and Jefferson
were present when Dennis shot the victim, took his wallet, and
returned to the Navigator. Appellant asked, “How do somebody
know that, though?” Dennis replied, “It had to be somebody that
was there. This is before they even catch [Jefferson].” Appellant
commented that there were only two witnesses to the shootings
and neither would “be able to remember that clearly.” He
concluded, “Homey, that’s how I know, homey, they don’t got
nothin’. They goin’ on hearsay.”
Appellant presented the testimony of two witnesses in his
defense. Willie Brown testified that on the night of the incident,
he heard gunshots and looked out the window of his home and
saw a vehicle. He did not see anyone get into a car. When
presented with a photographic lineup with his initials and a
circled photograph of Jefferson on it, Brown denied seeing it
before and telling police that Jefferson was the person he saw
driving a black Navigator on the night of the murders. Brown
acknowledged telling officers that he saw someone run to a black
Navigator after the shooting and describing that person’s

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clothing, but said he did not identify someone named Soulja Boy
as that person. Brown claimed he did not tell police he
recognized the vehicle and did not know anyone in the courtroom.
Brown admitted he had concerns for his family’s safety, but
denied he was in danger for testifying at the trial. Appellant also
called a detective, who testified that he interviewed Brown on
October 5, 2006, and Brown identified Jefferson as the driver of
the Navigator at that time.
Appellant’s codefendants, Ingram and Dennis, also
presented evidence in their defenses. Ingram offered the
testimony of Davon Gilbeau, who stated that Dennis got into an
argument with Kellum at a liquor store on the night of the
shooting. Gilbeau testified that Dennis displayed a gun in his
waistband to Kellum and said he was going to shoot somebody
that night. Ingram also took the stand himself. He testified that
Jefferson drove him, Dennis, and appellant to the area of the
shooting. Dennis and appellant got out of the Navigator, while
Ingram and Jefferson remained inside. Ingram decided to step
out, but heard gunshots as he was doing so. Appellant returned
to the Navigator first, followed by Dennis. Jefferson then drove
them away. During the drive, Ingram testified, appellant and
Dennis discussed shooting the victims and warned Ingram not to
say anything.
Dennis called a witness who testified that she was in the
liquor store with Gilbeau, Dennis, and Kellum. She said that
Dennis did not threaten Kellum.
The jury found appellant guilty of two counts of first degree
murder (§ 187, subd. (a)), with special circumstance findings that
he committed multiple murders, intentionally killed one of the
victims by means of lying in wait, and intentionally killed the

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victims while he was an active participant in a criminal street
gang (§ 190.2, subd. (a)(3), (15), (22)). The jury also found that a
principal intentionally discharged a firearm and proximately
caused great bodily injury or death. (§ 12022.53, subd. (c)(1).) It
further found that the offenses were committed for the benefit of
a criminal street gang. (§ 186.22, subd. (b)(1).) In a subsequent
bench trial, the trial court found that appellant suffered two prior
serious felony convictions within the meaning of sections 1170.12,
subdivisions (a) through (d) and 667, subdivisions (b) through (i).
The trial court denied appellant’s motion for new trial and
sentenced him to consecutive terms of life without the possibility
of parole plus 25 years to life.
On direct appeal, appellant contended the trial court erred
by “(1) denying his motion to dismiss on speedy trial grounds; (2)
denying his Marsden motion; (3) denying his Wheeler motion; (4)
admitting evidence of a prior gun possession; and (5) denying his
motion for new trial.” He also contended “(6) there is insufficient
evidence to support the verdict; and (7) cumulative error requires
reversal.” We affirmed the judgment in full.
II. Section 1170.95 Proceedings
Effective January 1, 2019, S.B. 1437 “‘amend[ed] 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.) It also enacted Penal Code
section 1170.95, permitting those who claimed they could not be

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convicted of murder under the new rules to petition for
resentencing.
Appellant filed a section 1170.95 petition on January 4,
2019. This petition is not in the record. The trial court
summarily denied the petition on March 11, 2019, without
appointing counsel for appellant or holding a hearing. In its
minute order, the trial court recited some of the facts from our
previous opinion summarized above. It then explained: “As an
actual killer in this case, Lee is not eligible for sentencing relief
under Penal Code sections 1170.95 and 189(e)(1). He clearly
acted with an intent to kill and was a major participant who
acted with reckless indifference to human life, and is also barred
from relief on those grounds. See Penal Code sections 189(e)(2)
and (3).” The trial court continued, “As a second and independent
ground for denying this petition for resentencing, the court finds
SB 1437 and Penal Code §1170.95 are unconstitutional” for three
reasons. First, S.B. 1437 “impermissibly amended two California
[voter] initiatives, Proposition 7 and Proposition 115.” Second,
S.B. 1437 “violates Article I, §28(a)(6) and Article 29 of the
California Constitution insofar as it purports to vacate final
judgments in criminal cases.” Third and finally, the trial court
held that section 1170.95 “violates the separation of powers
doctrine established by the California Constitution.”
Appellant filed a second section 1170.95 petition on March
25, 2019. In that form petition, he checked boxes asserting that
he was not the actual killer, “did not, with the intent to kill, aid,
abet, counsel, command, induce, solicit, request, or assist the
actual killer in the commission of murder in the first degree,” and
“was not a major participant in the felony or I did not act with
reckless indifference to human life during the course of the crime

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or felony.” Appellant also checked a box requesting the
appointment of counsel.
Appellant’s second petition, which was filed in the incorrect
courthouse, was transferred back to the trial judge who had
presided over his criminal trial and ruled on his first petition. On
April 12, 2019, that judge issued a minute order summarily
denying appellant’s second petition. The court stated: “The
defendant’s petition pursuant to Penal Code section 1170.95,
received and filed on March 25, 2019 at the Compton Courthouse,
is forwarded to this court. The defendant’s first petition filed on
January 4, 2019 was denied by this court on March 11, 2019. The
court’s ruling remains in full force and effect.” The court did not
hold a hearing or appoint counsel for appellant.
On April 12, 2019, appellant filed a handwritten letter
requesting a transcript of the court’s proceeding and a notice of
appeal form. The trial court issued an order addressing the letter
on April 23, 2019. It stated in pertinent part, “On March 11,
2019, the Court reviewed Lee’s petition and issued a written
denial finding that as an actual killer, Lee is ineligible for
sentencing relief. There was no hearing, and the matter is
closed.” We deemed appellant’s letter a notice of appeal.
DISCUSSION
Appellant contends that his petition stated a prima facie
case for relief, thereby entitling him to counsel and a hearing,
and that the trial court erred by looking beyond the petition to
our previous opinion when evaluating his petition. Appellant
further contends that trial documents beyond our prior opinion,
namely the full reporter’s transcript of his trial, establish that he
was not the actual killer and “belie the trial court’s
determination” to that effect. He also argues that denial of his

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petition deprived him of his state and federal rights to counsel
and due process of law. In a supplemental brief, he contends the
trial court also erred by finding S.B. 1437 and section 1170.95
unconstitutional. We reject the arguments raised in appellant’s
opening brief and accordingly need not reach his constitutional
argument.2
Section 1170.95 allows a person convicted of felony murder
or murder under the natural and probable consequences doctrine,
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 when all of the following
conditions apply: [¶] (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. . . . [¶] (3) The petitioner could not be convicted
of first or second degree murder because of changes to Section
188 or 189.” (§ 1170.95, subd. (a).)
Subdivision (b)(1) of section 1170.95 requires that the
petition be filed with the court that sentenced the petitioner, and
must include (a) a declaration by the petitioner that he or she is
eligible for relief under the section; (b) the superior court case
number and year of conviction; and (c) whether the petitioner
2We note that the Attorney General agrees that the trial
court erred in finding S.B. 1437 and section 1170.95 to be
unconstitutional. Appellate courts have agreed, and the Supreme
Court has denied review of those cases. (See People v. Lamoureux
(2019) 42 Cal.App.5th 241, review denied Feb. 19, 2020, S259835;
People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270,
review denied Feb. 19, 2020, S259700.)

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requests appointment of counsel. Subdivision (b)(2) provides that
the trial court may deny the petition without prejudice if any of
the information required by subdivision (b)(1) is missing and
cannot be readily ascertained by the court. (§ 1170.95, subd.
(b)(2).)
Subdivision (c) provides: “The court shall review the
petition and determine if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this
section. If the petitioner has requested counsel, the court shall
appoint counsel to represent the petitioner. The prosecutor shall
file and serve a response within 60 days of service of the petition
and the petitioner may file and serve a reply within 30 days after
the prosecutor response is served. These deadlines shall be
extended for good cause. If the petitioner makes a prima facie
showing that he or she is entitled to relief, the court shall issue
an order to show cause.” (§ 1170.95, subd. (c).)
Many appellants challenging the summary denial of their
section 1170.95 petitions contend that section 1170.95 does not
allow a trial court to deny a section 1170.95 petition before the
appointment of counsel (if requested) and briefing by the parties.
As we have noted in our previous opinions, that contention has
been rejected by numerous courts, and the issue is currently
before our Supreme Court. (People v. Lewis (2020) 43
Cal.App.5th 1128, 1137-1140 (Lewis), rev. granted, S260598,
March 18, 2020; People v. Cornelius (2020) 44 Cal.App.5th 54, 58
(Cornelius), rev. granted, S260410, March 18, 2020; People v.
Verdugo (2020) 44 Cal.App.5th 320 (Verdugo), rev. granted,
S260493, March 18, 2020.)
We find the analysis in Verdugo particularly persuasive.
As that court explained, “the relevant statutory language, viewed

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in context, makes plain the Legislature’s intent to permit the
sentencing court, before counsel must be appointed, to examine
readily available portions of the record of conviction to determine
whether a prima facie showing has been made that the petitioner
falls within the provisions of section 1170.95—that is, a prima
facie showing the petitioner may be eligible for relief because he
or she could not be convicted of first or second degree murder
following the changes made by [S.B.] 1437 to the definition of
murder in sections 188 and 189.” (Verdugo, supra, 44
Cal.App.5th at p. 323; see also Lewis, supra, 43 Cal.App.5th at
pp. 1137-1140; Cornelius, supra, 44 Cal.App.5th at p. 58.)
The Verdugo court noted that subdivision (b)(2) of section
1170.95 provides for an initial review to determine the facial
sufficiency of the petition, while subdivision (c) “then prescribes
two additional court reviews before an order to show cause may
issue.” (Verdugo, supra, 44 Cal.App.5th at p. 328.) The first of
those is “made before any briefing to determine whether the
petitioner has made a prima facie showing he or she falls within
section 1170.95—that is, that the petitioner may be eligible for
relief—and a second after briefing by both sides to determine
whether the petitioner has made a prima facie showing he or she
is entitled to relief.” (Ibid.) The court also observed that the first
prima facie review of the petition under subdivision (c) of section
1170.95 “must be something more than simply determining
whether the petition is facially sufficient; otherwise given
subdivision (b)(2), this portion of subdivision (c) would be
surplusage.” (Verdugo, supra, 44 Cal.App.5th at pp. 328-329.)
The Verdugo court found that “subdivisions (a) and (b) of
section 1170.95 provide a clear indication of the Legislature’s
intent. As discussed, subdivision (b)(2) directs the court in

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considering the facial sufficiency of the petition to access readily
ascertainable information. The same material that may be
evaluated under subdivision (b)(2)—that is, documents in the
court file or otherwise part of the record of conviction that are
readily ascertainable—should similarly be available to the court
in connection with the first prima facie determination required by
subdivision (c). . . . Based on a threshold review of these
documents, the court can dismiss any petition filed by an
individual who was not actually convicted of first or second
degree murder. The record of conviction might also include other
information that establishes the petitioner is ineligible for relief
as a matter of law because he or she was convicted on a ground
that remains valid notwithstanding [S.B.] 1437’s amendments to
sections 188 and 189. . . . [¶] Because the court is only
evaluating whether there is a prima facie showing the petitioner
falls within the provisions of the statute, however, if the
petitioner’s ineligibility for resentencing under section 1170.95 is
not established as a matter of law by the record of conviction, the
court must direct the prosecutor to file a response to the petition,
permit the petitioner (through appointed counsel if requested) to
file a reply and then determine, with the benefit of the parties’
briefing and analysis, whether the petitioner has made a prima
facie showing he or she is entitled to relief.” (Verdugo, supra, 44
Cal.App.5th at pp. 329-330.)
Our prior opinion resolving his direct appeal is part of
appellant’s record of conviction. (Lewis, supra, 43 Cal.App.5th at
p. 1136 & fn. 7.) The trial court appropriately relied on it when
assessing whether appellant asserted a prima facie case for relief
under section 1170.95. Appellant contends our descriptions of
the facts were hearsay and could not properly support the trial

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court’s finding that he was the actual killer. He also cites to the
reporter’s transcript of his trial—which is not in the appellate
record and may not have been before the trial court—to claim
that he was not the actual killer. We need not resolve these
contentions, as that was only one basis on which the trial court
denied appellant’s petition.
The trial court also found that appellant was ineligible for
relief because he “clearly acted with an intent to kill.” Our prior
opinion—and the minute order documenting appellant’s
sentencing hearing—state that the jury found true a special
circumstance allegation that appellant acted with the intent to
kill. In making this finding, the jury necessarily found true that
appellant participated in the crime and acted with the intent to
kill the victims. This renders him ineligible for relief under
section 1170.95 as a matter of law. (See People v. Gomez (2020)
____ Cal.Rptr.3d ____, 2020 WL 3960294, at pp. *8-*9.) The trial
court accordingly did not err in summarily denying appellant’s
petition.
Appellant also contends the trial court’s failure to appoint
him counsel and conduct a hearing violated his state and federal
due process rights. As discussed, however, the trial court’s
summary denial of appellant’s petition complied with section
1170.95’s procedures. Appellant has therefore suffered no due
process violation. He likewise has not suffered a deprivation of
his constitutional right to counsel, because he had no such right
at this stage of a section 1170.95 proceeding. (Cf. People v.
Anthony (2019) 32 Cal.App.5th 1102, 1156 [no right to jury trial
in proceedings under SB 1437 because its retroactive relief is “an
act of lenity that does not implicate defendants’ Sixth
Amendment rights”], citing People v. Perez (2018) 4 Cal.5th 1055,

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1063-1064; Pa v. Finley (1987) 481 U.S. 551, 555 [prisoners have
no constitutional right to counsel “when mounting collateral
attacks upon their convictions”].)
DISPOSITION
The order denying appellant’s petition under section
1170.95 is affirmed. The application for permission to file an
amicus curiae brief is denied.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.

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