P. v. Staten

Filed 7/20/20 P. v. Staten CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
CURTIS STATEN, JR. et al.,
Defendants and Appellants.
B297663
(Los Angeles County
Super. Ct. No. TA080513)
APPEAL from postjudgment orders of the Superior Court of
the Superior Court of Los Angeles County, John J. Lonergan, Jr.,
Judge. Affirmed.
Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant Curtis Staten, Jr.
Lynda A. Romero, under appointment by the Court of
Appeal, for Defendant and Appellant Kevin Jefferson.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Amanda V.

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Lopez and Stephanie A. Miyoshi, Deputy Attorneys General, for
Plaintiff and Respondent.
________________________________
Curtis Staten and Kevin Jefferson, convicted at a joint trial
of first degree murder and attempted willful, deliberate and
premeditated murder following a gang-related drive-by shooting
(see People v. Jefferson (2008) 158 Cal.App.4th 830 (Jefferson)),
appeal from postjudgment orders denying their petitions for
resentencing under Penal Code section 1170.95,1 based on the
superior court’s findings, made without appointment of counsel or
an evidentiary hearing, that they had failed to make a prima
facie showing of their eligibility for relief and the superior court’s
ruling, in the alternative, that section 1170.95 is
unconstitutional. In People v. Verdugo (2020) 44 Cal.App.5th
320, review granted March 18, 2020, S260493 (Verdugo), we
rejected Staten and Jefferson’s argument regarding the
procedures the superior court must follow once a section 1170.95
petition has been filed.2 Because Staten and Jefferson have
1 Statutory references are to this code.
2 The Supreme Court in Verdugo ordered briefing deferred
pending its decision in People v. Lewis, S260598, in which the
issues to be briefed and argued are limited to “(1) May superior
courts consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c)?”

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advanced no persuasive reason for us to reconsider that decision,
we affirm.3
FACTUAL AND PROCEDURAL BACKGROUND
1. The Commitment Offenses, Trial and Appeal
The evidence at Staten and Jefferson’s joint trial
established a white Chevrolet Suburban stopped late at night
next to the parked automobile in which Anthony Staniforth and
Dalinda Penaloza sat, talking to each other about their future.
The passenger in the Suburban’s front seat bent over, came up
with a handgun and began shooting. Staniforth was killed;
Penaloza was hit with broken glass. (Jefferson, supra,
158 Cal.App.4th at pp. 833-834.)
During an investigation that initially focused on locating
the SUV, the police impounded Staten’s white Suburban, which
had a broken tinted window and matched Penaloza’s description
of the shooter’s vehicle. Three fired bullet casings were found
inside the SUV, and a gun expert matched those casings with a
casing from the murder scene: “The same gun had fired all four.”
(Jefferson, supra, 158 Cal.App.4th at p. 834.) Although
Staniforth was not a gang member, it was believed the shooting
was in retaliation for the murder the day before of a member of
3 The Attorney General agrees with Staten and Jefferson
that section 1170.95 is constitutional, and several well-reasoned
court of appeal decisions have rejected the superior court’s
constitutional analysis (e.g., People v. Bucio (Apr. 27, 2020,
B299688); People v. Solis (2020) 46 Cal.App.5th 762; People v.
Lamoureux (2019) 42 Cal.App.5th 241). However, because we
affirm the orders denying Staten’s and Jefferson’s petitions based
on the superior court’s findings regarding their failure to make a
prima facie showing of eligibility for resentencing, we need not
address that issue.

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the Compton Fruit Town Piru street gang, which his fellow gang
members blamed on the Varrio Tortilla Flats, a rival Compton
gang. (Id. at p. 833.)4 Jefferson was a member of Fruit Town
Piru; Staten belonged to a different gang, but the two men knew
each other because Jefferson was dating Staten’s cousin and,
according to Jefferson, “Staten and his family had been living in
the neighborhood for ages.” (Id. at p. 835.)
Following the arrest of Staten and Jefferson, the police put
the two men in a cell with a hidden microphone. As hoped,
“Staten and Jefferson started talking about the shooting. Both
made incriminating statements. Many comments revealed their
damning knowledge of the crime’s details. At their joint trial, the
jury heard their taped conversation.” (Jefferson, supra,
158 Cal.App.4th at p. 835.) Although an initial trial resulted in a
hung jury, at the second trial both men were convicted of first
degree murder and attempted willful, deliberate and
premeditated murder with true findings the offenses had been
committed for the benefit of a criminal street gang and a
principal in the offenses had personally and intentionally
discharged a firearm causing death. The jury found not true the
allegation Jefferson had personally discharged a firearm causing
death. Jefferson was sentenced to an aggregate indeterminate
state prison term of 76 years to life; Staten to an aggregate
indeterminate state prison term of 75 years to life. (Id. at p. 839.)
On appeal we rejected Staten and Jefferson’s arguments it
was error to admit the tape of their jail cell conversations into
4 Staniforth, who was wearing short sleeves when he was
shot, had tattoos on his arms, one of which could have been
mistaken for a “V.F.” gang tattoo. (Jefferson, supra,
158 Cal.App.4th at p. 834.)

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evidence. (Jefferson, supra, 158 Cal.App.4th at pp. 839-845.) In
the nonpublished portion of our opinion, we also rejected their
argument the court’s instructions violated their right to due
process by permitting the jury to convict them of first degree
murder without finding express malice. (See People v. Jefferson
(Jan. 7, 2008, B192952), pp. 16-18.) We explained, “The court
instructed about first degree murder on two theories. The first
was based on a willful, deliberate, and premeditated killing.
(CALJIC No. 8.20.) This instruction was that, to find first degree
murder, the jurors had to find ‘express malice aforethought.’
‘Express malice’ and ‘an intent to kill’ are functional equivalents.
(People v. Moon (2005) 37 Cal.4th 1, 29.) The second theory of
first degree murder was ‘drive-by murder.’ (CALJIC No. 8.25.1.)
The drive-by murder instruction required the jury to find the
‘defendant specifically intended to kill a human being.’ Both first
degree murder theories thus required an express intent to kill.”
These instructions, we held, adequately required express
malice and an intent to kill as conditions of first degree murder.
But, we continued, even if there had been error, it would have
been harmless beyond a reasonable doubt. “There was no doubt
this murder was intentional, deliberate, and premeditated. The
motive was retaliation. Staten and Jefferson went on a hunt for
someone to kill. They headed for rival gang territory. They found
a target. Staten stopped the Suburban and backed up to get
closer. No one spoke before shooting. There was no provocation
or heat of passion. Two shooters fired many bullets at close
range. Staten and Jefferson set out to take a life for a life. They
accomplished their mission. On these facts, debate about express
intent to kill instructions is academic.” (People v. Jefferson,
supra, B192952, p. 18.)

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2. The Petitions for Resentencing
In his petition for resentencing, filed January 22, 2019 on a
downloadable form created by Re:Store Justice (see Verdugo,
supra, 44 Cal.App.5th at p. 324 & fn. 2), Staten declared by
checking boxes that he had been convicted of first or second
degree murder pursuant to the felony murder rule or the natural
and probable consequences doctrine and could not now be
convicted of murder because of amendments to sections 188 and
189, effective January 1, 2019. In a section of the form petition
applicable only to petitioners who had been convicted under the
felony murder rule, Staten checked the box stating he was not
the actual killer. Staten requested the court appoint him counsel
during the resentencing process.
In his petition, also filed January 22, 2019 on the Re:Store
Justice form, Jefferson checked boxes declaring he had been
convicted of first or second degree murder pursuant to the felony
murder rule or the natural and probable consequences doctrine
and could not now be convicted of murder because of
amendments to sections 188 and 189, effective January 1, 2019.
He also checked boxes stating he had been convicted of first
degree felony murder and could not now be convicted under that
theory because he was not the actual killer, did not assist the
actual killer with the intent to kill and was not a major
participant in the underlying felony. In addition, Jefferson
checked the box stating there had been a prior determination by
a court or jury that he was not a major participant and had not
acted with reckless indifference to human life when participating
in the underlying felony leading to his conviction under the felony
murder rule. Jefferson also requested appointment of counsel.

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3. The Superior Court’s Rulings
The superior court denied Staten’s and Jefferson’s petitions
for resentencing on March 25, 2019,5 ruling, as a matter of law,
neither Staten nor Jefferson was entitled to relief. Summarizing
our description of the circumstances of Staniforth’s murder and
our opinion’s analysis of Staten and Jefferson’s argument
regarding the trial court’s murder instructions, the court stated
the two men had acted with express malice in aiding and abetting
the shooter and had not been convicted of murder under either
the felony murder rule or the natural and probable consequences
doctrine. Alternatively, the court ruled, Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437)
impermissibly amended two California initiatives, Proposition 47
and Proposition 115, and violated article I, sections 28(A)(6) and
29 of the California Constitution, and section 1170.95, as adopted
by Senate Bill 1437, violated the separation of powers doctrine
established by the California Constitution.
Staten and Jefferson were not present in court when the
court ruled. Counsel had not been appointed for them.
DISCUSSION
1. Senate Bill 1437 and the Right To Petition To Vacate
Certain Prior Convictions for Murder
Senate Bill 1437, effective January 1, 2019, amended the
felony murder rule and eliminated the natural and probable
5 Section 1170.95, subdivision (a), provides the petition for
resentencing is to be filed “with the court that sentenced the
petitioner.” Gary E. Daigh, who presided at Staten and
Jefferson’s trial (see Jefferson, supra, 158 Cal.App.4th at p. 830),
retired in 2012. Judge John J. Lonergan, Jr. ruled on Staten’s
and Jefferson’s petitions.

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consequences doctrine as it relates to murder through
amendments to sections 188 and 189. New section 188,
subdivision (a)(3), provides, “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.”
New section 189, subdivision (e), in turn, provides with
respect to a participant in the perpetration or attempted
perpetration of a felony listed in section 189, subdivision (a), in
which a death occurs—that is, as to those crimes that provide the
basis for the charge of first degree felony murder—that the
individual is liable for murder “only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited,
requested, or assisted the actual killer in the commission of
murder in the first degree. [¶] (3) The person was a major
participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of
Section 190.2.”
Senate Bill 1437 also permits, through new section 1170.95,
an individual convicted of felony murder or murder under a
natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime. Section 1170.95, subdivision (c), requires the
sentencing court to review the petition; determine if it makes a
prima facie showing the petitioner falls within the provisions of

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section 1170.95; and, if the petitioner has requested counsel, to
appoint counsel to represent the petitioner. After counsel has
been appointed, the prosecutor is to file and serve a response to
the petition; and the petitioner may file a reply. If at this point
the court finds the petitioner has made a prima facie showing he
or she is entitled to relief, the court must issue an order to show
cause (§ 1170.95, subd. (c)) and conduct a hearing to determine
whether to vacate the murder conviction and resentence the
petitioner on any remaining counts (§ 1170.95, subd. (d)(1)).6
2. The Superior Court Properly Denied Staten’s and
Jefferson’s Resentencing Petitions on the Ground They
Are Ineligible as a Matter of Law for Any Relief Under
Section 1170.95
As our 2008 opinion affirming the trial court judgments
made clear, Staten’s and Jefferson’s first degree murder
convictions were not based on the felony murder rule or the
natural and probable consequences doctrine; and the jury
necessarily found the two men had acted with express malice
when they participated in the drive-by shooting of Staniforth and
Penaloza. Nonetheless, because they checked boxes on a
preprinted form making the counterfactual declaration their
convictions had been based on either or both of those theories and
they could not now be convicted of murder under the amended
versions of section 188 and 189, Staten and Jefferson contend
they were entitled to appointment of counsel and an evidentiary
hearing as a matter of statutory interpretation and constitutional
6 Once an evidentiary hearing has been ordered, the People
may present new and additional evidence to demonstrate the
petitioner is not entitled to resentencing. The petitioner also may
present new or additional evidence in support of the resentencing
request. (§ 1170.95, subd. (d)(3).)

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right before the court determined they were ineligible for
resentencing under section 1170.95. Neither argument has
merit.
a. Staten and Jefferson’s statutory arguments were
rejected in Verdugo
In Verdugo, supra, 44 Cal.App.5th 320 this court held, after
receiving a facially sufficient petition but before appointing
counsel for the petitioner, the superior court may examine the
readily available portions of the record of conviction, including
any appellate opinion affirming the conviction, to determine
whether the petitioner has made a prima facie showing that he or
she could not be convicted of first or second degree murder
following the changes made to sections 188 and 189 and thus falls
within the provisions of section 1170.95. (Verdugo, at pp. 329-
330, 332.) If the petitioner’s ineligibility for resentencing is
established as a matter of law by the petition itself and the record
of conviction, the petition may be summarily denied. If not, 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 requiring
issuance of an order to show cause and an evidentiary hearing.
(Verdugo, at p. 330.)7
7 We explained, “The first sentence of section 1170.95,
subdivision (c), directs the court to review the petition and
determine if the petitioner has made the requisite prima facie
showing. The second sentence provides, if the petitioner has
requested counsel, the court must appoint counsel to represent
him or her. The third sentence requires the prosecutor to file and

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Here, as discussed, Staten’s and Jefferson’s ineligibility for
resentencing under section 1170.95 was established as a matter
of law by our opinion affirming their convictions for first degree
murder and attempted premeditated murder. They were not
entitled under section 1170.95 to appointment of counsel or an
evidentiary hearing before the court denied their petitions.
b. Staten and Jefferson’s constitutional argument lacks
merit
Asserting the determination whether a petitioner has made
a prima facie showing he or she falls within the provisions of
section 1170.95 is a “critical stage” of a criminal proceeding,
Staten and Jefferson contend the superior court’s summary
denial of their petitions violated their constitutional right to the
assistance of counsel. (See generally Marshall v. Rodgers (2013)
569 U.S. 58, 92 [“[i]t is beyond dispute that ‘[t]he Sixth
Amendment safeguards to an accused who faces incarceration the
right to counsel at all critical stages of the criminal process’”];
People v. Doolin (2009) 45 Cal.4th 390, 453 [sentencing is a
critical stage in the criminal process within the meaning of
the Sixth Amendment].)
serve a response to the petition within 60 days of service of the
petition and permits the petitioner to file a reply to the response.
The structure and grammar of this subdivision indicate the
Legislature intended to create a chronological sequence: first, a
prima facie showing; thereafter, appointment of counsel for
petitioner; then, briefing by the parties.” (Verdugo, supra,
44 Cal.App.5th at p. 332; accord, People v. Cornelius (2020)
44 Cal.App.5th 54, 58 [section 1170.95 does not mandate
appointment of counsel where the petitioner “is indisputably
ineligible for relief”], review granted Mar. 18, 2020, S260410.)

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However, as the Supreme Court explained in People v.
Shipman (1965) 62 Cal.2d 226, 232, “Unless we make the filing of
adequately detailed factual allegations stating a prima facie case
a condition to appointing counsel, there would be no alternative
but to require the state to appoint counsel for every prisoner who
asserts that there may be some possible ground for challenging
his conviction. Neither the United States Constitution nor the
California Constitution compels that alternative.” Accordingly,
in general, in postconviction proceedings, “in the absence of
adequate factual allegations stating a prima facie case, counsel
need not be appointed” to represent a petitioner in the trial court.
(Ibid.; accord, In re Clark (1993) 5 Cal.4th 750, 780 [“the
appointment of counsel is demanded by due process concerns” if a
postconviction “petition attacking the validity of a judgment
states a prima facie case leading to issuance of an order to show
cause”]; see People v. Rouse (2016) 245 Cal.App.4th 292, 298
(Rouse) [“The United States Supreme Court has declined to
extend the Sixth Amendment right to counsel to postconviction
proceedings. [Citation.] Federal courts have consistently ruled
that an incarcerated defendant has no constitutional right to
counsel with respect to statutory postconviction motions seeking
a reduction in sentence”]; see also Cal. Rules of Court,
rule 4.551(c)(1), (2) [following the filing of a petition for writ of
habeas corpus, the superior court must issue an order to show
cause if the petitioner has made a prima facie showing that he or
she is entitled relief; “[o]n issuing an order to show cause, the
court must appoint counsel for any unrepresented petitioner who
desires but cannot afford counsel”].)
Staten’s reliance on Rouse, supra, 245 Cal.App.4th 292, a
case involving a petition for resentencing under section 1170.18,

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subdivision (a) (Proposition 47), is misplaced. In Rouse our
colleagues in Division Eight of this court distinguished published
decisions that had concluded there was no right to counsel at the
initial eligibility stage of a petition under section 1170.18 (Rouse,
at p. 299) and held, once the superior court had determined the
Proposition 47 petition was meritorious and the petitioner
entitled to be resentenced, the resentencing hearing “is akin to a
plenary sentencing hearing” and properly characterized as a
“critical stage” in the criminal process to which the right to
counsel attaches. (Rouse, at pp. 299-300.)
People v. Fryhaat (2019) 35 Cal.App.5th 969, also relied
upon by Stanton and Jefferson, is similar to Rouse and likewise
provides no support for their argument they had a constitutional
right to appointment of counsel simply upon the filing of a
section 1170.95 petition with the proper boxes checked. Fryhaat
involved section 1473.7, which permits an individual no longer in
custody to move to vacate his or her conviction or sentence based
on a lack of understanding of the immigration consequences of a
guilty plea.8 After construing the statutory language to require a
8 Section 1473.7, subdivision (a), provides, “A person who is
no longer in criminal custody may file a motion to vacate a
conviction or sentence for either of the following reasons: [¶]
(1) The conviction or sentence is legally invalid due to prejudicial
error damaging the moving party’s ability to meaningfully
understand, defend against, or knowingly accept the actual or
potential adverse immigration consequences of a plea of guilty or
nolo contendere. A finding of legal invalidity may, but need not,
include a finding of ineffective assistance of counsel. [¶]
(2) Newly discovered evidence of actual innocence exists that
requires vacation of the conviction or sentence as a matter of law
or in the interests of justice.”

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hearing and, arguably, appointment of counsel for an indigent
moving party,9 in order to avoid a constitutional question the
court of appeal held, “In light of the fact writs of habeas corpus
and writs of coram nobis, and likely section 1016.5 motions to
vacate, require court-appointed counsel for an indigent petitioner
or moving party who has established a prima facie case for
entitlement to relief, and given a section 1473.7 motion was
intended to fill the gap left by the foregoing procedural avenues
for relief, interpreting section 1473.7 to also provide for court-
appointed counsel where an indigent moving party has
adequately set forth factual allegations stating a prima facie case
for entitlement to relief would best effectuate the legislative
intent in enacting section 1473.7.” (Fryhaat, at p. 983,
fn. omitted.)
9 Former section 1473.7, subdivision (d), in effect at the time
the superior court ruled on Fryhaat’s motion, provided, “All
motions shall be entitled to a hearing. At the request of the
moving party, the court may hold the hearing without the
personal presence of the moving party if counsel for the moving
party is present and the court finds good cause as to why the
moving party cannot be present.” (Stats. 2016, ch. 739, § 1.)
By the time of the court of appeal’s decision in Fryhaat,
section 1473.7, subdivision (d), had been amended, effective
January 1, 2019, to provide, “All motions shall be entitled to a
hearing. Upon the request of the moving party, the court may
hold the hearing without the personal presence of the moving
party provided that it finds good cause as to why the moving
party cannot be present. If the prosecution has no objection to
the motion, the court may grant the motion to vacate the
conviction or sentence without a hearing.” (Stats. 2018, ch. 825,
§ 2.)

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The scheme embraced as a matter of due process in Rouse
and adopted to avoid a constitutional issue in Fryhaat is precisely
the model created by section 1170.95. At the initial eligibility
stage, there is no right to appointed counsel. However, once the
court concludes it cannot determine the petitioner’s ineligibility
for relief as a matter of law, counsel must be appointed for those
petitioners who have requested it. (§ 1170.95, subd. (c).) Because
the superior court properly ruled Staten and Jefferson were
ineligible for relief under section 1170.95 as a matter of law, they
were not entitled to appointment of counsel as a matter of
statutory or constitutional right.
DISPOSITION
The postjudgment orders are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.

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