P. v. Mayes

Filed 7/13/20 P. v. Mayes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,
Plaintiff and Respondent,
v.
JAMES DELANO MAYES,
Defendant and Appellant.
B298207
(Los Angeles County
Super. Ct. No. KA054756)
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Juan Carlos Dominguez, Judge.
Affirmed.
Sally Patrone Brajevich, 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, Senior
Assistant Attorney General, Idan Ivri and Kristen J. Inberg,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________

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James Delano Mayes appeals the summary denial of his
petition for resentencing under Penal Code1 section 1170.95.
Mayes contends that by filing a facially sufficient petition
pursuant to section 1170.95, subdivision (b), he made the
requisite prima facie showing under subdivision (c) that he falls
within the provisions of section 1170.95. He thus asserts that the
superior court was required to appoint counsel, accept briefing by
the parties, and conduct a hearing at which Mayes was present
and represented by counsel. Mayes further challenges the
sufficiency of the evidence in support of his conviction for first
degree murder as a direct aider and abettor. He asserts that
because he could not be convicted under section 188 as amended
by Senate Bill No. 1437 (2017–2018 Reg. Sess.), his first degree
murder conviction should be vacated.
Mayes’s contentions lack merit. The superior court
properly determined that Mayes is ineligible for relief as a matter
of law because the record reflects he was convicted of first degree
murder as a direct aider and abettor, and not under a felony-
murder theory or the natural and probable consequences
doctrine. The superior court thus did not err in denying Mayes’s
petition for resentencing under section 1170.95 without first
appointing counsel and conducting a hearing. As for Mayes’s
challenge to the sufficiency of the evidence supporting his murder
conviction under a direct aiding and abetting theory, that ship
has already sailed: In his direct appeal from the conviction,
Mayes specifically raised, and this court expressly rejected
Mayes’s challenge to the sufficiency of the evidence supporting
1 Undesignated statutory references are to the Penal Code.

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his first degree murder conviction as a direct aider and abettor.
(People v. Haynes et al. (Sept. 3, 2003, B159390) [nonpub. opn.]
(Haynes).)2 He may not now, in an appeal from the denial of a
section 1170.95 petition, raise the issue anew.
FACTS AND PROCEDURAL BACKGROUND
Following a jury trial, Mayes and his codefendant, Herman
Theodore Haynes, were convicted by separate juries of the first
degree murder of Carla Edmonson in 2001. (Haynes, supra,
B159390.) Mayes was convicted as a direct aider and abettor. In
his direct appeal, Mayes asserted among other things that there
was no evidence he aided and abetted Haynes in the killing. We
rejected the contention, holding that having weighed the
prosecution’s evidence in light of the inconsistent or contrary
evidence presented by the defense, the jury had concluded that
Mayes was guilty of the murder of Edmonson. We found that
substantial evidence, albeit circumstantial, supported the jury’s
determination. (Haynes, supra, B159390.)
On March 28, 2019, Mayes filed a petition for resentencing
under section 1170.95, alleging 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 be
convicted of murder because of the changes to sections 188 and
189 by Senate Bill No. 1437. The petition further alleged that
Mayes was convicted of first degree felony murder but could not
now be convicted under the current section 189, because he was
not the actual killer, he did not aid and abet with intent to kill,
2 We have granted Mayes’s request to take judicial notice of
the record in the appeal from his conviction in case No. B159390.

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and he was neither a major participant nor acted with reckless
indifference to human life. Mayes’s petition included a request
that counsel be appointed to represent him.
That same day, without appointing counsel and with no
appearance by Mayes or the People, the superior court summarily
denied the petition. In its order the court stated: “[P]etitioner is
not entitled to relief as a matter of law” because he “was
convicted of murder but the court file reflects that petitioner was
not convicted under a theory of felony-murder of any degree, or a
theory of natural and probable consequences.”
DISCUSSION
I. The Superior Court’s Summary Denial of
Mayes’s Petition Was Proper
A. Senate Bill No. 1437 and section 1170.95
The Legislature enacted Senate Bill No. 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 not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
To accomplish this objective, Senate Bill No. 1437 amended
section 188, defining malice, and section 189, which classifies
murder into two degrees and lists the predicate felonies for the
crime of first degree felony murder.3 (Stats. 2018, ch. 1015, §§ 2,
3; People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
3 The amendments to section 189 included the new
requirement that a participant in a specified felony during which

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Senate Bill No. 1437 and its amendment to section 188
“significantly restricted potential aider and abettor liability, as
well as coconspirator liability, for murder under the natural and
probable consequences doctrine, effectively overruling [People v.]
Chiu [(2014) 59 Cal.4th 155 (Chiu)] insofar as it upheld second
degree murder convictions based on that theory. Now, rather
than an objective, reasonable foreseeability standard, as
discussed in [People v.] Prettyman [(1996) 14 Cal.4th 248] and
Chiu, pursuant to new section 188, subdivision (a)(3), to be guilty
of murder other than as specified in section 189, subdivision (e),
concerning felony murder, the subjective mens rea of ‘malice
aforethought’ must be proved: ‘[T]o be convicted of murder, a
principal in a crime shall act with malice aforethought.’ (See also
Sen. Bill 1437 (Stats. 2018, ch. 1015, § 1, subd. (g) [‘[a] person’s
culpability for murder must be premised upon that person’s own
actions and subjective mens rea’].) And that required element of
malice ‘shall not be imputed to a person based solely on his or her
participation in a crime.’ (§ 188, subd. (a)(3).)” (People v. Lopez
(2019) 38 Cal.App.5th 1087, 1103, review granted Nov. 13, 2019,
S258175; People v. Lewis (2020) 43 Cal.App.5th 1128, 1135,
a death occurs may be convicted of murder for that death “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. [¶] [or] (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.” (§ 189, subd. (e)(1)–(3).)

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review granted Mar. 18, 2020, S260598 (Lewis).) However, as
Lewis observed, while the amendment to section 188 effectively
eliminated use of the natural and probable consequences doctrine
to support a murder conviction, the change did not “alter the law
regarding the criminal liability of direct aiders and abettors of
murder because such persons necessarily ‘know and share the
murderous intent of the actual perpetrator.’ (People v. McCoy
(2001) 25 Cal.4th 1111, 1118; see Chiu, supra, 59 Cal.4th at
p. 167 [a direct aider and abettor ‘acts with the mens rea required
for first degree murder’].)” (Lewis, supra, 43 Cal.App.5th at
p. 1135, rev.gr.)
In addition to these amendments, Senate Bill No. 1437 also
added section 1170.95 to provide a procedure by which those
convicted of felony murder or murder under a natural and
probable consequences theory can seek retroactive relief if they
could no longer be convicted of murder because of the changes in
sections 188 or 189. (People v. Martinez, supra, 31 Cal.App.5th at
pp. 722–723.) A petition under section 1170.95 must include the
following allegations:
“(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.
“(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, subd. (a)(1)–(3).)

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In addition, the petition must include a declaration of
eligibility based on the requirements of subdivision (a), the year
of conviction and the superior court case number, and whether
the petitioner requests appointment of counsel. (§ 1170.95, subd.
(b)(1).) Subdivision (b)(2) provides that “[i]f any of the
information required by this subdivision is missing from the
petition and cannot be readily ascertained by the court, the court
may deny the petition without prejudice to the filing of another
petition and advise the petitioner that the matter cannot be
considered without the missing information.”
B. Mayes failed to make a prima facie showing that he
falls within the provisions of the new law as required
under subdivision (c) of section 1170.95
Mayes contends he “made a prima facie showing in his
petition that he was entitled to relief pursuant to [section]
1170.95 by completing the petition, checking the appropriate
boxes, and signing it under penalty of perjury.” To the contrary,
Mayes’s petition merely satisfied the requirements of section
1170.95, subdivisions (a) and (b), which address the superior
court’s initial determination of the facial sufficiency of the
petition. Mayes did not satisfy the prima facie showing
requirement of subdivision (c).
Section 1170.95, subdivision (c) prescribes the superior
court’s responsibilities upon the filing of a complete petition:
“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

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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).)
In interpreting section 1170.95, we must give meaning to
all parts of the statute to the extent possible. (People v. Verdugo
(2020) 44 Cal.App.5th 320, 329, review granted Mar. 18, 2020,
S260493 (Verdugo); People v. Shabazz (2006) 38 Cal.4th 55, 67
[“ ‘The meaning of a statute may not be determined from a single
word or sentence; the words must be construed in context, and
provisions relating to the same subject matter must be
harmonized to the extent possible’ ”].) “[T]he language used in a
statute or constitutional provision should be given its ordinary
meaning, and ‘[i]f the language is clear and unambiguous there is
no need for construction, nor is it necessary to resort to indicia of
the intent of the Legislature . . . .’ [Citation.] To that end, we
generally must ‘accord[] significance, if possible, to every word,
phrase and sentence in pursuance of the legislative purpose,’ and
have warned that ‘[a] construction making some words
surplusage is to be avoided.’ ” (People v. Valencia (2017) 3
Cal.5th 347, 357; People v. Abrahamian (2020) 45 Cal.App.5th
314, 332.)
It is clear from the language of section 1170.95,
subdivision (c) that in this next stage the superior court conducts
two separate reviews of the facially sufficient petition before an
order to show cause may issue: The first review 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

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after briefing by both sides to determine whether the petitioner
has made a prima facie showing he or she is entitled to relief.”
(Verdugo, supra, 44 Cal.App.5th at p. 328, rev.gr.)
Mayes, however, ignores the first step prescribed by
subdivision (c), arguing that the superior court reviews only the
summary allegations of the petition: If the court finds these
allegations meet the requirements of subdivisions (a) and (b), it
must also find they are sufficient to survive the initial prima
facie review under subdivision (c), and the court must appoint
counsel if requested. Numerous courts have rejected Mayes’s
position. (Lewis, supra, 43 Cal.App.5th at pp. 1137–1140, rev.gr.;
People v. Tarkington (2020) 49 Cal.App.5th 892, 897–899
(Tarkington); People v. Edwards (2020) 48 Cal.App.5th 666, 673–
675, review granted July 8, 2020, S262481; People v. Torres
(2020) 46 Cal.App.5th 1168, 1173, 1178, review granted June 24,
2020, S262011; People v. Cornelius (2020) 44 Cal.App.5th 54, 57–
58, review granted Mar. 18, 2020, S260410; Verdugo, supra, 44
Cal.App.5th at pp. 332–333, rev.gr.)
The issue of whether a superior court may consider the
record of conviction in determining whether a petitioner has
made a prima facie showing of eligibility for relief under section
1170.95 is currently under review by the California Supreme
Court. (<https://appellatecases.courtinfo.ca.gov/search/case/
mainCaseScreen.cfm?dist=0&doc_id=2311967&doc_no=S260598
&request_token=NiIwLSEmXkw5W1BBSCMtSEJJUEw0UDxTJ
SJeUzNRMCAgCg%3D%3D> [as of July 7, 2020], archived at
<https://perma.cc/RV72-6SDZ>.) Pending further guidance from
our Supreme Court, we agree with these courts’ conclusions that
section 1170.95, subdivision (c) permits the superior court to
review the record of conviction as well as the averments of the

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petition, and to summarily deny the petition without the
appointment of counsel where this initial review reveals that the
petitioner is ineligible for relief as a matter of law.
“ ‘A prima facie showing is one that is sufficient to support
the position of the party in question.’ ” (Lewis, supra, 43
Cal.App.5th at p. 1137, rev.gr., quoting Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 851.) In the initial prima
facie review required by section 1170.95, subdivision (c), the
superior court must determine the petitioner’s “statutory
eligibility for resentencing, a concept that is a well-established
part of the resentencing process under Propositions 36 and 47.
[Citations.] The court’s role at this stage is simply to decide
whether the petitioner is ineligible for relief as a matter of law,
making all factual inferences in favor of the petitioner.”
(Verdugo, supra, 44 Cal.App.5th at p. 329, rev.gr.) In the context
of Propositions 36 and 47, as well as in habeas corpus
proceedings, this initial review does not require blind acceptance
of the allegations contained in the petition, but permits the court
to examine the record of conviction to determine if a prima facie
basis for relief exists. (Lewis, at pp. 1137–1138 [court’s initial
review of petition for resentencing under Prop. 36 and Prop. 47 to
determine if petition establishes prima facie case for eligibility
includes examination of the record of conviction]; see also People
v. Page (2017) 3 Cal.5th 1175, 1188–1189 [Prop. 47]; Teal v.
Superior Court (2014) 60 Cal.4th 595, 600 [Prop. 36].)
“ ‘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

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eligible for relief. For example, if the petition contains sufficient
summary allegations that would entitle the petitioner to relief,
but a review of the court file shows the petitioner was convicted
of murder without instruction or argument based on the felony
murder rule or [the natural and probable consequences doctrine],
. . . it would be entirely appropriate to summarily deny the
petition based on petitioner’s failure to establish even a prima
facie basis of eligibility for resentencing.’ ” (Lewis, supra, 43
Cal.App.5th at p. 1138, rev.gr.)
Here, Mayes concedes and the record of his conviction,
including the appellate opinion in the underlying case,4 reveals
that Mayes was convicted of first degree murder under a direct
theory of aiding and abetting.5 (Haynes, supra, B159390.)
However, a direct aider and abettor can be convicted of murder
notwithstanding the amendments to sections 188 and 189, which
changed nothing with regard to direct aider and abettor liability.
“One who directly aids and abets another who commits murder is
thus liable for murder under the new law just as he or she was
liable under the old law.” (Lewis, supra, 43 Cal.App.5th at
p. 1135, rev.gr.) Accordingly, Mayes was required to make a
prima facie showing that he was not convicted as a direct aider
and abettor, and thereby “ ‘falls within the provisions of’ the
statute.” (Lewis, at p. 1137; § 1170.95, subds. (a)(3) & (c).) He
4 An appellate opinion is part of the record of conviction.
(People v. Cruz (2017) 15 Cal.App.5th 1105, 1110.)
5 The jury was instructed on aiding and abetting, but not
on principles of felony murder or the natural and probable
consequences doctrine.

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failed to do so. The superior court therefore properly denied the
petition on the basis of its finding that Mayes was not entitled to
relief as a matter of law because he was not convicted under a
theory of felony murder or natural and probable consequences,
the two theories affected by Senate Bill No. 1437.
In sum, the allegations in the petition that Mayes “could
not now be convicted of 1st or 2nd degree murder because of
changes made to Penal Code §§ 188 and 189” and that he was
“convicted of 1st degree felony murder” are contradicted by the
record of conviction. Because the record of conviction plainly
shows that Mayes does not fall within the provisions of the
statute, he did not make the first prima facie showing required
under section 1170.95, subdivision (c). Mayes is thus ineligible
for relief as a matter of law, and the superior court properly
denied his petition. (§ 1170.95, subd. (c); Verdugo, supra, 44
Cal.App.5th at p. 329, rev.gr.)
II. Mayes Was Not Entitled to Appointed Counsel
Despite his failure to meet his obligation to make a prima
facie showing of eligibility for relief, Mayes nevertheless
maintains the superior court should have appointed counsel and
proceeded to the next stages of review under section 1170.95,
subdivision (c).
We reject the assertion on the basis of the Lewis6 court’s
reasoning, which we adopt: “The provision for the appointment of
6 The question of when the right to appointed counsel
arises under section 1170.95, subdivision (c) is also pending
before the California Supreme Court. (<https://appellatecases.
courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=
2311967&doc_no=S260598&request_token=NiIwLSEmXkw5W1

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counsel is set forth in the second sentence of section 1170.95,
subdivision (c), and does not, when viewed in isolation, indicate
when that duty arises. When interpreting statutory language,
however, we do not ‘ “examine that language in isolation, but in
the context of the statutory framework as a whole.” ’ [Citation.]
When the statutory framework is, overall, chronological, courts
will construe the timing of particular acts in relation to other acts
according to their location within the statute; that is, actions
described in the statute occur in the order they appear in the
text.” (Lewis, supra, 43 Cal.App.5th at pp. 1139–1140, rev.gr.)
Thus, “the requirement to appoint counsel as arising in
accordance with the sequence of actions described in section
1170.95 subdivision (c); that is, after the court determines that
the petitioner has made [the first] prima facie showing that
petitioner ‘falls within the provisions’ of the statute, and before
the submission of written briefs and the court’s determination
whether petitioner has made ‘a prima facie showing that he or
she is entitled to relief.’ ” (Id. at p. 1140; Tarkington, supra, 49
Cal.App.5th at pp. 900–901.)
We also reject Mayes’s claim that the dismissal of his
petition without the appointment of counsel violated his federal
constitutional rights to counsel and due process under the Sixth
and Fourteenth Amendments.
The United States Supreme Court has declared that the
Sixth Amendment “right to appointed counsel extends to the first
appeal of right, and no further.” (Pennsylvania v. Finley (1987)
BBSCMtSEJJUEw0UDxTJSJeUzNRMCAgCg%3D%3D> [as of
July 7, 2020], archived at <https://perma.cc/RV72-6SDZ>.)

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481 U.S. 551, 555.) In this regard, the high court has explained
that a petition seeking postconviction relief by an imprisoned
defendant constitutes “a collateral attack that normally occurs
only after the defendant has failed to secure relief through direct
review of his conviction. States have no obligation to provide this
avenue of relief, [citation], and when they do, the fundamental
fairness mandated by the Due Process Clause does not require
that the State supply a lawyer as well.” (Id. at p. 557; In re
Barnett (2003) 31 Cal.4th 466, 474.) Likewise, the California
constitution confers no unconditional constitutional right to
counsel to mount a collateral attack on a judgment of conviction,
and the rules for postconviction relief⎯whether by petition for
writ of habeas corpus or coram nobis⎯require the petition to first
make a prima facie showing of entitlement to relief before the
court issues an order to show cause and appoints counsel. (In re
Barnett, at p. 475 [habeas corpus]; People v. Shipman (1965) 62
Cal.2d 226, 232–233 [coram nobis]; People v. Fryhaat (2019) 35
Cal.App.5th 969, 982; People v. Rodriguez (2019) 38 Cal.App.5th
971, 982.)
Mayes did not make a prima facie showing that he came
within the provisions of section 1170.95, which would have
triggered a statutory right to counsel. (§ 1170.95, subd. (c).) In
the absence of the requisite prima facie showing that Mayes was
entitled to relief, the superior court was not required to appoint
counsel, order briefing, issue an order to show cause, or schedule
a hearing. (See § 1170.95, subds. (c), (d)(1).)
Mayes cites In re Cobbs (2019) 41 Cal.App.5th 1073, 1079–
1080 (Cobbs) in support of his contention that his right to counsel
was violated when the superior court summarily denied the

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sentencing petition without appointing counsel. Cobbs is
inapposite.
In Cobbs, the defendant was convicted of first degree
murder following a jury trial in which the prosecution relied on
two theories of guilt: felony murder based on attempted robbery,
and murder as the natural and probable consequence of assault
and battery. (Cobbs, supra, 41 Cal.App.5th at p. 1075.) The
judgment of conviction was affirmed on appeal. (Id. at p. 1076.)
Thereafter, the matter returned to the Court of Appeal on a
petition for habeas corpus in which the defendant contended his
first degree murder conviction under the natural and probable
consequences doctrine was invalid under Chiu, supra, 59 Cal.4th
155 and In re Martinez (2017) 3 Cal.5th 1216, and both theories
of conviction⎯felony murder and natural and probable
consequences⎯were invalid in light of the amendments enacted
by Senate Bill No. 1437. (Cobbs, at pp. 1075–1076.)
Nowhere in the opinion did Cobbs examine the required
procedures under section 1170.95, subdivision (c), much less
discuss the appointment of counsel under that section. Rather,
Cobbs expressly rejected defendant’s challenge under Senate Bill
No. 1437 on the ground that the resentencing relief afforded by
the legislation is not available in a habeas corpus proceeding, but
only through a petition filed in accordance with the requirements
of section 1170.95. (Cobbs, supra, 41 Cal.App.5th at pp. 1075–
1076; People v. Martinez, supra, 31 Cal.App.5th at p. 729 [a
“defendant must file a section 1170.95 petition in the trial court
to seek retroactive relief under Senate Bill 1437”].)
III. Mayes May Not Challenge the Sufficiency of the
Evidence Supporting His Murder Conviction in

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an Appeal from the Denial of His Section
1170.95 Petition
Claiming there was “no solid evidence” that Mayes “aided
and abetted the murder with the intent to kill,” Mayes argues at
length that his first degree murder conviction must be vacated.
Mayes has already challenged the sufficiency of the evidence in
support of his conviction as an aider and abettor in his direct
appeal, and lost. (Haynes, supra, B159390.) As discussed above,
nothing in the amendments to sections 188 and 189 altered the
criminal liability of direct aiders and abettors of murder: Such
persons may still be convicted of first degree premeditated
murder based on their own knowledge of the perpetrator’s
unlawful purpose and their own intent to commit, encourage, or
facilitate the commission of the murder. (Chiu, supra, 59 Cal.4th
at p. 167 [direct aider and abettor “acts with the mens rea
required for first degree murder”]; Lewis, supra, 43 Cal.App.5th
at p. 1135, rev.gr.)
Mayes cannot challenge the sufficiency of the evidence
supporting his first degree murder conviction as a direct aider
and abettor in an appeal from the denial of his section 1170.95
petition.

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DISPOSITION
The postjudgment order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.

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