P. v. Smith

Filed 6/11/20 P. v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.
JOSEPH TONY SMITH,
Defendant and Appellant.
B298413
(Los Angeles County
Super. Ct. No. A974333)
APPEAL from an order of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Christopher Love, 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, Charles S. Lee and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *

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Joseph Tony Smith (defendant) filed a petition seeking
resentencing pursuant to Penal Code section 1170.95.1 The trial
court summarily denied the petition without appointing counsel.
Because the findings by the jury and this court establish as a
matter of law that defendant was the actual killer for both of his
murder convictions, the trial court’s denial of relief was correct.
Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The underlying crimes2
On August 24, 1988, defendant shot and killed two men. In
the “early morning,” he went to an alley to buy rock cocaine from
18-year-old Eric Riley (Riley). After completing the purchase,
defendant pulled out a gun, demanded all the cocaine and money
in Riley’s possession and, when Riley did not comply, shot Riley
in the stomach. Riley died from that wound. After stopping at a
liquor store, defendant drove to the residence of 76-year-old
Anthony Earl (Earl). After selling Earl $20 of cocaine, defendant
sent Earl’s companion to the liquor store, knocked Earl to the
floor, kicked him repeatedly, pulled out his gun, and demanded
that Earl give him money. When Earl refused, defendant shot
him in the stomach. Although Earl tossed the money from his
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We take judicial notice of the opinion and appellate record
from the direct appeal in this matter. (People v. Joseph Tony
Smith (Aug. 6, 1993, B064537) [nonpub. opn.]; see also Evid.
Code, §§ 459, 452, subd. (c))

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pants pockets toward defendant and begged for his life, defendant
shot him a second time in the chest. Earl died from those
wounds.
B. Prosecution, conviction and appeal
The People charged defendant with (1) the murder of Earl
(§ 187), (2) the robbery of Earl (§ 211), (3) the murder of Riley
(§ 187), (4) the robbery of Riley (§ 211); and (5) the robbery of
Earl’s companion (§ 211). The People further alleged that
defendant personally used a firearm for each of the murders
(former § 12022.5, subd. (a) (1987)), that the murders were
committed in the course of the robberies (§ 190.2, subd. (a)(17)),
and that defendant committed multiple murders (§ 190.2, subd.
(a)(3)). The People additionally alleged that defendant had three
prior serious felony convictions (§ 667, subd. (a)).
The trial court instructed the jury on the crimes of murder
and robbery as well as grand theft (as a lesser included offense to
robbery). As to murder, the court instructed the jury that
defendant could be found guilty if he (1) acted with malice
aforethought in killing the victim(s), or (2) acted with the
“specific intent to commit a robbery” and the victim(s) were killed
“during the commission” of the robberies (that is, on a felony-
murder theory). The court denied defendant’s request to instruct
the jury on voluntary manslaughter due to provocation.
The jury convicted defendant of the first degree murder of
Earl, the second degree murder of Riley, and grand theft of Earl
(as a lesser included offense to the charged robbery); the jury
acquitted defendant of robbing Earl, Earl’s companion, and Riley.
The jury found true the personal use of a firearm allegation as to
Earl’s murder [as to each murder] as well as the multiple murder
allegation, but found untrue that either murder was committed

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in the course of a robbery. The court found the three prior
serious felony convictions true. The trial court sentenced
defendant to life without the possibility of parole plus 17 years
and eight months, comprised of (1) a sentence of life without the
possibility of parole as to Earl’s murder plus two years for
personal use of a firearm plus 15 years for the three prior serious
felonies (at five years a piece), (2) a concurrent sentence of 15
years to life as to Riley’s murder, and (3) a consecutive sentence
of eight months (one third of the midterm sentence of two years)
for the grand theft of Earl.
Defendant appealed his convictions. As pertinent to this
appeal, this court ruled that the trial court correctly declined to
instruct on voluntary manslaughter because “the average
reasonable person in [defendant’s] circumstances would not be
compelled to kill from passion rather than, as [defendant] did,
from due deliberation and reflection.”
II. Procedural Background
On February 5, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable 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.
The trial court summarily denied defendant’s petition on
the ground that, after a review of the “court file and [the]
appellate opinion,” defendant was “not eligible” for relief because
he was the “actual shooter” in both murders.
Defendant filed this timely appeal.

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DISCUSSION
Defendant argues that the trial court erred in summarily
denying his section 1170.95 petition without appointing counsel
and entertaining briefing. Because resolution of this argument
turns on questions of statutory construction and the application
of law to undisputed facts, our review is de novo. (People v.
Blackburn (2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person filing a petition under section 1170.95 is entitled
to the appointment of counsel if, in his petition, he “makes a
prima facie showing that he or she is entitled to relief” under that
section. (§ 1170.95, subd. (c); People v. Lewis (2020) 43
Cal.App.5th 1128, 1140 (Lewis), review granted Mar. 18, 2020,
S260598; People v. Verdugo (2020) 44 Cal.App.5th 320, 330
(Verdugo), review granted Mar. 18, 2020, S260493; see also
People v. Fryhaat (2019) 35 Cal.App.5th 969, 982-984 [so holding,
as to post-conviction relief under section 1473.7].) A person is
entitled to relief under section 1170.95 if, as relevant here, (1)
“[a] complaint, information, or indictment was filed against [him]
that allowed the prosecution to proceed under a theory of felony
murder . . .,” (2) he “was convicted of . . . 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 made to
sections 188 and 189, if he “was the actual killer” (§ 189, subd.
(e)(1)) or “was a major participant in the underlying felony and
acted with reckless indifference to human life.” (§ 189, subd.
(e)(3).) A “‘prima facie showing is one that is sufficient to support
the position of the party in question.’” (Lewis, at p. 1137, quoting

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Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)
Although defendant in his petition alleged each element
necessary to make out a prima face case for relief under section
1170.95, a trial court evaluating whether a defendant has made a
prima facie showing in a section 1170.95 petition is not required
to accept those allegations at face value and may also examine
the record of conviction. (Lewis, supra, 43 Cal.App.5th at p. 1138;
Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) However, the
contents of the record of conviction 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. 330; see also People v. Cornelius
(2020) 44 Cal.App.5th 54, 58 (Cornelius), review granted Mar. 18,
2020, S260410 [record must show defendant is “indisputably
ineligible for relief”].)
Here, the trial court correctly concluded that defendant did
not make out a prima facie case for relief because the record of
conviction establishes, as a matter of law, that he is not eligible
for relief. As to Earl’s murder, the jury specifically found that he
personally used a firearm.3 This finding of fact necessarily labels
3 Although this court’s prior opinion stated that the jury also
found the personal use of a firearm true as to Riley, the
underlying trial court record is muddled on this point: The
People so alleged, the jury was so instructed, and the trial court’s
minute order recording the verdict so reflects, but the jury’s
verdict forms contain no such finding and the trial court in
imposing sentence did not reference (let alone impose sentence
for) such a finding. This uncertainty is of no moment, however,
because (as discussed in the text) the record of conviction

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him the “actual killer” and hence ineligible for relief under
section 1170.95. (E.g., Cornelius, supra, 44 Cal.App.5th at p. 58
[so holding].) As to Riley’s murder, the jury was presented with
only two theories to convict him—as a killer acting with malice
aforethought or as a person who kills unintentionally in the
course of a robbery (that is, felony murder). Because the jury
acquitted defendant of robbery, because robbery was the only
felony supporting the felony-murder theory, and because the jury
found that neither murder was committed in the course of a
robbery, the jury necessarily rejected felony murder as a basis for
liability; the only remaining theory was liability as the actual
killer acting with malice aforethought, which renders defendant
ineligible for relief under section 1170.95. (Accord, In re Hansen
(2014) 227 Cal.App.4th 906, 922 [“‘Absent some contrary
indication in the record, we presume the jury follows its
instructions “and that its verdict reflects the legal limitations
those instructions imposed.’””], quoting Cassim v. Allstate Ins. Co.
(2004) 33 Cal.4th 780, 803-804.) What is more, this court in
rejecting defendant’s argument that the jury should have
instructed on heat of passion as to both murders found that
defendant acted with deliberation rather than out of passion,
which necessarily rests on the finding that he was the “actual
shooter.” This finding also forecloses relief. (E.g., Lewis, supra,
43 Cal.App.5th at pp. 1138-1139 [finding of appellate court
necessarily forecloses relief]; Verdugo, supra, 44 Cal.App.5th at
pp. 335-336 [same]; see generally People v. Stanley (1995) 10
Cal.4th 764, 786-787 [describing the law of the case doctrine and
elsewhere reflects that defendant is ineligible for relief on this
murder count.

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its application to the findings of appellate courts].)
Defendant makes two arguments in response.
First, he argues that Verdugo, and by extension Lewis and
Cornelius, are wrongly decided because the counter-factual
allegations he set forth in his petition should be given controlling
weight. We disagree, for the reasons articulately set forth in
those decisions.
Second, he argues that he has a constitutional right to
counsel that precludes summary denial of his section 1170.95
petition. Again, we disagree. Defendant cites no authority for
the proposition that a party is constitutionally entitled to counsel
to litigate a post-conviction petition on which the record of
conviction forecloses relief as a matter of law. The law is to the
contrary. (See People v. Shipman (1965) 62 Cal.2d 226, 232 [“in
the absence of adequate factual allegations stating a prima facie
case, counsel need not be appointed either in the trial court or on
appeal from a summary denial of [post-conviction] relief in that
court”]; Pa. v. Finley (1987) 481 U.S. 551, 555 (plurality) [“the
[constitutional] right to appointed counsel extends to the first
appeal of right, and no further”]; accord, Dillon v. United States
(2010) 560 U.S. 817, 828 [legislative acts granting post-conviction
relief do not implicate the Sixth Amendment right to a jury].)

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P.J.
LUI
_________________________, J.
ASHMANN-GERST

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