P. v. Carroll

Filed 12/17/20 P. v. Carroll 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.
MAURICE VERNELL
CARROLL,
Defendant and Appellant.
B299815
(Los Angeles County
Super. Ct. No. BA203327)
APPEAL from an order of the Superior Court of Los
Angeles County, William R. Pounders, Judge. Affirmed.
Doris M. LeRoy, 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 Viet H. Nguyen, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________

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Maurice Vernell Carroll appeals from a postjudgment order
summarily denying his petition for resentencing under Penal
Code section 1170.951 as to his first degree murder conviction.
Carroll contends because his petition stated the necessary
elements for eligibility for relief, the superior court erred in
denying his petition without appointing counsel. Because the
record of conviction shows Carroll was either the actual shooter
or aided and abetted the shooter with the intent to kill, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shooting
On May 16, 2000 Carroll and Terrell Cunningham, both
members of the Rollin 20’s gang, entered a video store.2 After
warning a customer to leave the store, Cunningham pulled out a
gun and pointed it at Roberto Garcia, the owner of the store, and
1 All statutory references are to the Penal code.
2 The summary of facts is drawn from our opinion in People
v. Carroll (Sept. 10, 2003, B157628) (nonpub. opn.) (Carroll I).
On September 28, 2020 the People filed a request for judicial
notice asking this court to take judicial notice of the appellate
records and our opinion in Carroll I. We denied the request to
take judicial notice of the opinion as unnecessary and construed
the remainder of the request as a motion to augment the record
on appeal, which we granted. Carroll filed a motion to diminish
the record on appeal on the basis that “nothing in the record of
the proceedings appealed from herein indicates the prior
appellate record was before the court below when it ruled.”
Because we do not rely on the appellate record in Carroll I, we
grant Carroll’s motion.

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Reynaldo Araujo, Garcia’s nephew. Cunningham ordered Garcia
and Araujo into a corner at the back of the store and told them to
get on the floor. When Cunningham demanded to know where
Garcia kept the money, Garcia told him there was no money.
Cunningham then directed Garcia and Araujo to the cash
register and ordered them to open it. When Cunningham
discovered the register only had five dollars, Cunningham
became angry and demanded, “‘Show me the money or I’ll kill you
both.’” Cunningham took Garcia and Araujo to the back of the
store, made them lie on the floor, and emptied their pockets.
Carroll, who had been stuffing video games into garbage bags,
said to Cunningham, “‘Let me kill them both.’” After hearing
this, Garcia jumped up and ran out the back door. As he was
escaping, Garcia heard gunshots. Garcia then saw Carroll and
Cunningham drive away. The police arrived and discovered
Araujo’s body in the back room. He had died from three fatal
gunshots, one to the back of his head and two to his back.
Although Carroll initially bragged that he had been the
shooter, he changed his story after discovering that Cunningham
“had snitched.” Cunningham claimed Carroll was the shooter.
According to Cunningham, he gave the gun to Carroll to watch
Garcia and Araujo while Cunningham went to the door to speak
to the “lookout.” When he opened the door, Cunningham heard
the shots, and then he and Carroll ran to the getaway vehicle.
B. Carroll’s Conviction and Appeal
Carroll and Cunningham were tried before separate juries.
The jury found Carroll guilty of the murder of Araujo (§ 187,
subd. (a); count 1), and it found true the special circumstance
that the murder was committed during the commission of a

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robbery (§ 190.2, subd. (a)(17)(A)). The jury also found Carroll
guilty of the attempted willful, deliberate, and premeditated
murder of Garcia (§§ 187, subd. (a), 664, subd. (a); count 2).
Further, the jury found Carroll guilty of the robberies of Araujo
and Garcia (§ 211; counts 3 & 4). The jury found true as to each
count the gang enhancement allegation (§ 186.22, subd. (b)(1))
and that in the commission of the crimes a principal personally
used a firearm, personally and intentionally discharged a
firearm, and personally and intentionally discharged a firearm
causing great bodily injury or death (§ 12022.53, subds. (b), (c),
(d) & (e)(1)). The jury did not find true the allegations Carroll
personally used and discharged a firearm, causing great bodily
injury or death (§ 12022.53, subds. (b), (c), (d)).3 The trial court
sentenced Carroll to life without the possibility of parole plus a
consecutive sentence of 25 years to life for the firearm-use
enhancement under section 12022.53, subdivisions (d) and (e)(1).
(Carroll I, supra, B157628.)
We affirmed Carroll’s convictions but concluded the trial
court erred by failing to instruct the jury on the special
circumstance allegation with CALJIC No. 8.80.1, which explains
the mental state required for a true finding. However, we found
the error harmless beyond a reasonable doubt, reasoning, “In
Carroll’s case, even if his jury found he was not the actual killer
3 The jury found Cunningham guilty of first degree murder
and two counts of robbery, and it found true the special
circumstance, gang, and firearm-use allegations, except for the
allegation Cunningham personally and intentionally discharged a
firearm. However, the jury was unable to reach a verdict on the
attempted murder charge, and the court declared a mistrial on
that count. (Carroll I, supra, B157628.)

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but instead was an aider and abettor, they necessarily found he
intended to kill under other properly given jury instructions.
Carroll’s jury found him guilty of the attempted murder of
Garcia. Under the court’s instructions in order to find him guilty
of this charge his jury had to find ‘the person committing the act
harbored express malice aforethought, namely, a specific intent
to kill unlawfully another human being.’ In addition, Carroll's
jury found true the special allegation the murder attempted was
‘willful, deliberate and premeditated.’ These findings establish
beyond doubt the jury was convinced Carroll harbored an intent
to kill. Moreover, because the murder and attempted murder
occurred nearly simultaneously, in very close quarters, and were
presumably motivated by the same frustration over the lack of
loot and desire to eliminate witnesses to the robbery, any
reasonable juror would have found Carroll harbored the identical
intent to kill with regard to both of his victims.”4 (Carroll I,
supra, B157628, fns. omitted.)
C. Carroll’s Petition for Resentencing
On May 31, 2019 Carroll, representing himself, filed a form
petition for resentencing and supporting declaration seeking to
vacate his murder conviction and be resentenced in accordance
with recent statutory changes relating to accomplice liability for
murder. In his petition, Carroll declared he “could not now be
convicted of 1st or 2nd degree murder because of changes made to
4 In his closing argument the prosecutor acknowledged there
was not sufficient evidence from which the jury could conclude
beyond a reasonable doubt whether Carroll or Cunningham was
the actual shooter. (Carroll I, supra, B157628.)

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Penal Code §§ 188 and 189, effective January 1, 2019”; he “was
not the actual killer”; he “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
“[t]here has been a prior determination by a court or jury that
[he] was not a major participant and/or did not act with reckless
indifference to human life.” Carroll also requested the court
appoint an attorney for him.
On June 11, 2019 the superior court summarily denied
Carroll’s petition for resentencing. In its ruling, the court recited
the facts set forth in Carroll I and explained, “The appellate court
acknowledged the mental state required for a true finding of a
felony-murder special circumstance for an aider and abettor; i.e.,
the aider and abettor had to have the intent to kill or be a major
participant in the underlying felony and acted with reckless
indifference to human life. The court held ‘in Carroll’s case, even
if his jury found he was not the actual killer but instead was an
aider and abettor, they necessarily found he intended to kill
under other properly given jury instructions.’” The court also
relied on the conclusion in Carroll I that because the murder and
attempted murder occurred almost simultaneously in very close
quarters with the same motivation, “‘any reasonable juror would
have found Carroll harbored the identical intent to kill with
regard to both of his victims.’” Carroll again appealed.5
5 Carroll’s attorney initially filed a brief in which she raised
no issues. (People v. Cole (2020) 52 Cal.App.5th 1023, 1040,
review granted Oct. 14, 2020, S264278; People v. Serrano (2012)
211 Cal.App.4th 496, 503.) However, we requested supplemental
briefing on the following issues: “(1) May superior courts
consider the record of conviction in determining whether a

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DISCUSSION
A. Senate Bill No. 1437
On September 30, 2018 Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Senate Bill 1437) was signed into law, effective
January 1, 2019. Senate Bill 1437 was enacted to “amend the
felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 1; see People v.
Verdugo (2020) 44 Cal.App.5th 320, 325 (Verdugo), review
granted Mar. 18, 2020, S260493; People v. Perez (2020)
54 Cal.App.5th 896, 902 (Perez), review granted Dec. 9, 2020,
S265254.)
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.” Senate Bill 1437 also added section
189, subdivision (e), which provides, “A participant in the
perpetration or attempted perpetration of a felony listed in
subdivision (a) in which a death occurs is liable for murder only if
defendant has made a prima facie showing of eligibility for relief
under section 1170.95? [¶] (2) When does the right to appointed
counsel arise under section 1170.95, subdivision (c)?” In response
to our order, Carroll and the People filed supplemental briefs.

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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 provides a procedure in new section
1170.95 for 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 under Senate Bill 1437’s changes to sections 188 and
189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4.) Section 1170.95,
subdivision (b)(1), provides that the petition “shall be filed with
the court that sentenced the petitioner.” The petition must
include a declaration by the petitioner stating he or she is eligible
for relief under the section, providing the superior court case
number and year of the conviction, and indicating whether he or
she requests the appointment of counsel. (§ 1170.95, subd.
(b)(1).)
As we concluded in Verdugo, the Legislature intended for
there to be a three-step evaluation of a section 1170.95 petition.
(Verdugo, supra, 44 Cal.App.5th at pp. 328, 332-333; see Perez,
supra, 54 Cal.App.5th at p. 903.) “If any of the required
information is missing 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.’

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(§ 1170.95, subd. (b)(2).) [¶] If the petition contains all required
information, section 1170.95, subdivision (c), prescribes a two-
step process for the court to determine if an order to show cause
should issue: ‘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 . . . and the petitioner may file and serve a reply . . . . 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.’”
(Verdugo, at p. 327; accord, Perez, at p. 903; People v. Nguyen
(2020) 53 Cal.App.5th 1154, 1165 (Nguyen) [§ 1170.95, subd. (c),
provides for two prima facie reviews]; People v. Tarkington (2020)
49 Cal.App.5th 892, 900-901, review granted Aug. 12, 2020,
S263219 (Tarkington); People v. Torres (2020) 46 Cal.App.5th
1168, 1177, review granted June 24, 2020, S262011
[“subdivisions (b) and (c) of [section 1170.95] require the trial
court to make three separate determinations”].)
“In determining whether the petitioner has made a prima
facie showing that he or she is entitled to relief under section
1170.95, subdivision (c), ‘[t]he trial court should not evaluate the
credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is
eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. Just as in habeas
corpus, if the record “contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.” [Citation.]

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However, this authority to make determinations without
conducting an evidentiary hearing pursuant to section 1170.95,
subd. (d) is limited to readily ascertainable facts from the record
(such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of
discretion . . . .’” (Perez, supra, 54 Cal.App.5th at pp. 903-904,
quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980; accord,
Nguyen, supra, 53 Cal.App.5th at p. 1166.)
After issuing an order to show cause, the trial court must
hold a hearing “to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).) If
a hearing is held, “[t]he prosecutor and the petitioner may rely on
the record of conviction or offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3); see
People v. Lewis (2020) 43 Cal.App.5th 1128, review granted
Mar. 18, 2020, S260598.)6 The prosecution has the burden of
proving beyond a reasonable doubt the petitioner is ineligible for
resentencing. (§ 1170.95, subd. (d)(3).)
6 The Supreme Court in People v. Lewis limited briefing and
argument to the following issues: “(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)[?]” (Supreme Ct. Mins., Mar. 18, 2020, p. 364;
People v. Lewis, supra, 43 Cal.App.5th 1128.)

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B. The Trial Court Did Not Err in Failing To Appoint Counsel
Before Denying Carroll’s Petition for Resentencing
Carroll urges us to follow the First District’s holding in
People v. Cooper (2020) 54 Cal.App.5th 106, 123, review granted
November 10, 2020, S264684, and the dissenting opinion in
Tarkington, supra, 49 Cal.App.5th at page 915 (dis. opn. of Lavin,
J.), which rejected our conclusion in Verdugo that section 1170.95
only requires appointment of counsel after the superior court
determines as part of its first prima facie review the petitioner is
eligible for relief. The Court of Appeal in Cooper instead held “a
petitioner is entitled to counsel upon the filing of a facially
sufficient petition for relief that requests counsel be appointed.”
(Cooper, at p. 123; accord, Tarkington, at pp. 917, 927 (dis. opn. of
Lavin, J.).) The Cooper court explained, “We decline to adopt the
view that section 1170.95(c) requires two prima facie reviews—
much less two reviews that are substantively different—and
entitles a petitioner to counsel during only the second one.
Rather, we read subdivision (c)’s first sentence—‘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’—as a topic sentence summarizing the trial court’s
task before issuing an order to show cause, and the following
sentences to specify the procedure in undertaking that task. In
our view, this conclusion is supported by both the statute's
language and its legislative history.” (Cooper, at p. 118.)
We decline Carroll’s invitation to follow Cooper and the
dissent in Tarkington.7 Rather, as we explained in Verdugo, to
7 “[O]ur analysis of the trial court’s order focuses on the trial
court’s interpretation of section 1170.95(c), and we therefore

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determine whether the petitioner is eligible for relief (the first
prima facie review), “the court must at least examine the
complaint, information or indictment filed against the petitioner;
the verdict form or factual basis documentation for a negotiated
plea; and the abstract of judgment.” (Verdugo, supra,
44 Cal.App.5th at pp. 329-330.) We added, “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 Senate Bill 1437’s amendments to sections 188
and 189 (see § 1170.95, subd. (a)(3))—for example, a petitioner
who admitted being the actual killer as part of a guilty plea or
who was found to have personally and intentionally discharged a
firearm causing great bodily injury or death in a single victim
homicide within the meaning of section 12022.53, subdivision
(d).” (Id. at p. 330.) Further, “[a] court of appeal opinion,
whether or not published, is part of the appellant's record of
conviction.” (Id. at p. 333.)
As discussed, we concluded in Carroll I that because the
jury found Carroll, in committing the attempted willful,
deliberate, and premeditated murder of Araujo, “‘harbored
express malice aforethought, namely, a specific intent to kill
unlawfully another human being,’” “any reasonable juror would
have found Carroll harbored the identical intent to kill with
review its order de novo.” (People v. Drayton, supra,
47 Cal.App.5th at p. 981; accord, People v. Murillo (2020)
54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978;
see ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 188
[questions of statutory interpretation are reviewed de novo].)

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regard to both of his victims.” (Carroll I, supra, B157628.)
Moreover, Carroll either was the shooter or harbored an intent to
kill in aiding and abetting Cunningham as the shooter, as shown
by his statement to Cunningham just before the shooting, “‘Let
me kill them both.’” (Ibid.)
Therefore, Carroll was not eligible for relief under Senate
Bill 1437 because under new section 189, subdivision (e), he could
still be convicted of murder based on his intent to kill. (Verdugo,
supra, 44 Cal.App.5th at p. 335 [petitioner was not eligible for
relief under § 1170.95 because he harbored the specific intent to
kill the victim, as found in the earlier opinion affirming his
conviction]; People v. Gutierrez-Salazar (2019) 38 Cal.App.5th
411, 414, 419 [petitioner not eligible for relief under Sen. Bill
1437 because jury found true felony-murder special-circumstance
instruction, which required jury to find aider and abettor
intended to kill or was a major participant and acted with
reckless indifference to human life].)
Because Carroll failed to make the initial prima facie
showing for relief under section 1170.95, subdivision (c), he was
not entitled to appointed counsel or a hearing. (Tarkington,
supra, 49 Cal.App.5th at pp. 901-902 [because the court
summarily denied the petition at the first prima facie review
stage, “the appointment of counsel was not statutorily required
by section 1170.95”]; Verdugo, supra, 44 Cal.App.5th at pp. 332-
333 [“If, as here, the court concludes the petitioner has failed to
make the initial prima facie showing required by subdivision (c),
counsel need not be appointed.”]; People v. Lewis, supra,
43 Cal.App.5th at p. 1140 [“Given the overall structure of the
statute, we construe the requirement to appoint counsel as
arising in accordance with the sequence of actions described in

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section 1170.95 subdivision (c); that is, after the court determines
that the petitioner has made a 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.’”].)
DISPOSITIION
The order denying Carroll’s petition for resentencing under
section 1170.95 is affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
DILLON, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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