P. v. Simmons

1
Filed 6/26/20 P. v. Simmons CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
KWAME T. SIMMONS,
Defendant and Appellant.
E072550
(Super.Ct.No. FSB05319)
OPINION
APPEAL from the Superior Court of San Bernardino County. Brian S.
McCarville, Judge. Affirmed.
Alan S. Yockelson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne S.
Denault and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and
Respondent.

-- 1 of 16 --

2
Defendant and appellant Kwame T. Simmons appeals from the trial court’s order
summarily denying his petition under Penal Code1 section 1170.95, which allows certain
defendants convicted of murder under the felony-murder rule or natural and probable
consequences theory to petition the court to vacate their convictions and for resentencing.
Defendant contends his petition stated a prima facie case for relief under the statute, and
the court erred in denying it without a hearing and in the absence of appointed counsel.
Because defendant was not convicted under the felony-murder rule or natural and
probable consequences theory, we conclude he failed to state a prima facie case for relief.
We therefore affirm the order denying his petition.
I. PROCEDURAL BACKGROUND AND FACTS2
On June 27, 1994, Bonita Thompson was shot and killed when she opened the
front door of her apartment in response to the doorbell ringing. At the same time, a
number of shots were fired at the apartment’s back wall. Nine shell casings and a set of
footprints were found in the backyard. A witness saw defendant and another man
running from the apartment area just after the shooting. Thompson’s nephew, who had
been staying at the apartment, was the intended victim, and the shooting was in retaliation
for the nephew’s testimony in another murder case. After talking to the nephew, the
investigating officer interviewed defendant. At trial, a tape of defendant’s confession
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 On October 23, 2019, we took judicial notice of the record in defendant’s appeal
from the original judgment. (See People v. Simmons (Feb. 11, 1998, E019948) [nonpub.
opn.] (Simmons).) We take much of our factual and procedural recitation from that
opinion.

-- 2 of 16 --

3
was played for the jury. Defendant admitted being the person who fired at the backwall
of the apartment. (Simmons, supra, E019948.)
In 1996, a jury convicted defendant of first degree murder (§ 187, subd. (a)) and
found true the allegation that he personally used a firearm (§ 12022.5, subd. (a)). The trial
court sentenced him to a total term of 29 years to life in state prison, and this court affirmed
the judgment in an unpublished opinion. (Simmons, supra, E019948.)
On January 7, 2019, after Senate Bill No. 1437 became effective, defendant filed a
section 1170.95 petition to vacate his 1996 murder conviction and requested the
appointment of counsel to assist with his sentencing motion. Defendant alleged the
prosecutor introduced his confession as the “sole evidence to substantiate him as a second
shooter and presented a conspiracy natural and probable consequence theory.” In support
of his claim, he attached the version of CALJIC 6.11 (conspiracy-joint responsibility) that
was given to the jury. The People offered no written opposition.
On March 6, 2019, the trial court ordered “appointment of a conflict panel
counsel” and set a hearing for confirmation of counsel. On March 21, the court heard
defendant’s petition and concluded the statute did not apply. Nonetheless, the court
appointed the public defender “to review the application and to determine if a valid
reason exists to go forward.” On March 28, the court summarily denied defendant’s
petition; neither defendant nor his counsel were present. The court stated: “The Court
has independent memory of the [defendant’s] case.[3] I have reviewed the opinion of the
3 The judge presided over defendant’s trial. [footnote continued on next page]

-- 3 of 16 --

4
Fourth District, Division Two, affirming his conviction of murder some time ago. He
does not qualify under this particular new legislation. He was convicted of First-Degree
murder and for personal use of a firearm. He was the actual killer in this particular case,
so he does not qualify. [¶] The Court does not reach the merits. I’m not ruling on the
constitutionality of the issue. I’m just saying that he was the actual killer. The statute
does not apply.”4
II. DISCUSSION
On appeal, defendant argues the trial court erred in concluding he had failed to
state a prima facie case for relief because the court mistakenly believed defendant was the
actual killer. He also argues the court violated his Sixth Amendment rights by summarily
denying his petition in his absence and in the absence of his counsel. We find no merit to
his first argument, and his second argument fails because neither his presence nor that of
his counsel could have altered the result of the proceedings. (People v. Law (2020)
48 Cal.App.5th 811 (Law).)
[footnote continued from previous page]
[footnote continued from previous page]
4 In its memorandum of decision, the trial court checked two boxes. The first box
provides: “The petitioner was convicted of murder but the court file reflects that the
petitioner was the actual killer and was not convicted under a theory of felony-murder of
any degree, or a theory of natural and probable consequences. There are no jury
instructions for aiding and abetting, felony murder, or natural and probable
consequences.” The second box provides: “The appellate opinion affirming the
petitioner’s conviction and sentence reflects that the petitioner was the actual killer and
was convicted of murder on a theory of being the direct perpetrator and not on a theory of
felony murder of any degree, or a theory of natural and probable consequences.”

-- 4 of 16 --

5
A. Standard of Review and Applicable Law.
“We review de novo questions of statutory construction. [Citation.] ‘Our primary
task “in interpreting a statute is to determine the Legislature’s intent, giving effect to the
law’s purpose. [Citation.] We consider first the words of a statute, as the most reliable
indicator of legislative intent.”’” (Law, supra, 48 Cal.App.5th at p. 819.)
Senate Bill No. 1437 (2017-2018 Reg. Sess.) became effective on January 1, 2019.
The purpose of the new legislation was “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); see People v. Larios
(2019) 42 Cal.App.5th 956, 964.) To accomplish this purpose, Senate Bill No. 1437
amended section 188 to provide “[m]alice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
The Bill also added section 189, subdivision (e) (Stats. 2018, ch. 1015, § 3), which
provides that a person 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

-- 5 of 16 --

6
reckless indifference to human life, as described in subdivision (d) of Section 190.2.”
(Italics added; see People v. Larios, at p. 964.)
“There are two distinct forms of aider and abettor liability. ‘First, an aider and
abettor with the necessary mental state is guilty of the intended crime. Second, under the
natural and probable consequences doctrine, an aider and abettor is guilty not only of the
intended crime, but also “for any other offense that was a ‘natural and probable
consequence’ of the crime aided and abetted.”’” (People v. Williams (2015) 61 Cal.4th
1244, 1268.) Under the direct theory, the prosecution “must show that the defendant
acted ‘with knowledge of the criminal purpose of the perpetrator and with an intent or
purpose either of committing, or of encouraging or facilitating commission of, the
offense.’ [Citation.] ‘The aider and abettor doctrine merely makes aiders and abettors
liable for their accomplices’ actions as well as their own. It obviates the necessity to
decide who was the aider and abettor and who the direct perpetrator or to what extent
each played which role.’” (People v. Gomez (2018) 6 Cal.5th 243, 279.)
Additionally, Senate Bill No. 1437 added section 1170.95 (Stats. 2018, ch. 1015,
§ 4), which “establishes the following procedure for processing petitions for relief.
Section 1170.95, subdivision (a) provides that a person convicted of felony murder or
murder under a natural and probable consequences theory may petition the trial court to
have his or her murder conviction vacated and be resentenced on any remaining counts if
the following conditions are met: (1) A charging document 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

-- 6 of 16 --

7
convicted of first or second degree murder following a trial or an accepted plea; and
(3) The petitioner could ‘not be convicted of first or second degree murder because of
changes to Section[s] 188 or 189’ made by Senate Bill 1437. [Citations.]
“Section 1170.95, subdivision (b) states that the petition must include: a
declaration from the petitioner that he or she is eligible for relief under the statute, the
superior court’s case number and year of conviction, and a statement as to whether the
petitioner requests appointment of counsel. [Citation.] If any of the required information
is missing and cannot ‘readily [be] ascertained by the court, the court may deny the
petition without prejudice to the filing of another petition.’ [Citation.]
“Section 1170.95, subdivision (c) sets forth the trial court’s responsibilities once a
complete petition has been filed: ‘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. . . . 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.’ [Citation.]
“If the court issues an order to show cause, it must hold a hearing to determine
whether to vacate the murder conviction. (§ 1170.95, subd. (d).) At that hearing, the
prosecution has the burden of proving beyond a reasonable doubt that the petitioner is
ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The prosecutor and petitioner ‘may

-- 7 of 16 --

8
rely on the record of conviction or offer new or additional evidence to meet their
respective burdens.’ (Ibid.)
“In short, a section 1170.95 petitioner must first make a prima facie case for relief,
and if they are able to do so, the trial court must issue an order to show cause and hold a
hearing to determine whether to vacate the murder conviction and recall the sentence.
[Citation] ‘“A prima facie showing is one that is sufficient to support the position of the
party in question.”’” (Law, supra, 48 Cal.App.5th at p. 820.)
B. Analysis.
Defendant contends his petition stated a prima facie case for relief under
section 1170.95, subdivision (a), by alleging his conviction was based on the
prosecution’s “theory of conspiracy and natural and probable consequences” and he “was
a second shooter who fired shots into a wall at the back of the residence, rather than the
person who shot the victim at the front door.” Defendant’s contention lacks merit.
1. The trial court properly reviewed the record of conviction.
As we recently stated in Law, when determining whether a petitioner has stated a
prima facie claim for relief under section 1170.95, the trial court is not limited to the
allegations in the petition. Rather, it may consider the entire record of conviction and
subsequent appellate opinion. (Law, supra, 48 Cal.App.5th at pp. 820-821 [trial court did
not err by looking to the record of conviction, the opinion in defendant’s direct appeal,
and the jury instructions from his trial in evaluating his petition]; relying on People v.
Verdugo (2020) 44 Cal.App.5th 320, 323, review granted Mar. 18, 2020, S260493
(Verdugo) [in determining the sufficiency of a § 1170.95 petition, the trial court may

-- 8 of 16 --

9
review the record of conviction, including documents in the court’s own file and the
appellate opinion resolving the defendant’s direct appeal]; People v. Lewis (2020) 43
Cal.App.5th 1128, 1134, 1138, review granted Mar. 18, 2020, S260598 (Lewis) [same].)
2. The record supports the trial court’s ruling.
Defendant contends that, even if the trial court did not err in “going beyond the
face of the petition in making its determination,” remand is necessary because the “facts
it relied upon do not provide any support for its summary denial.” Specifically,
defendant criticizes the court’s belief that he was the “actual killer in this particular case.”
The People agree the court erred in its belief; however, they argue remand is unnecessary
because “the record shows that the jury necessarily found [defendant] guilty of
premeditated and deliberate first degree murder under a conspiracy-murder theory.” We
agree with the People.
Here, although defendant was not the actual killer, he was charged with first
degree premeditated murder on the theories that he conspired with his confederate to
commit murder or he aided and abetted such killing with the same intent. The jury was
provided with the recording and transcript of defendant’s interview with the investigating
officers. In his interview, defendant admitted that he went to the apartment for the
purpose of killing the victim’s nephew.
The jury was instructed on the prosecution’s theories. With respect to liability as a
coconspirator, the jury was instructed with CALJIC No. 6.11: “Each member of a
criminal conspiracy is liable for each act and bound by each declaration of every other
member of the conspiracy if such act or such declaration is in furtherance of the object of

-- 9 of 16 --

10
the conspiracy. [¶] The act of one conspirator pursuant to or in furtherance of the
common design of the conspiracy is the act of all conspirators. [¶] A member of a
conspiracy is not only guilty of the particular crime that to his knowledge his
confederates agreed to and did commit, but is also liable for the natural and probable
consequences of any [crime] of a co-conspirator to further the object of the conspiracy,
even though such [crime] was not intended as a part of the agreed upon objective and
even though he was not present at the time of the commission of such [crime]. [¶] You
must determine whether the defendant is guilty as a member of a conspiracy to commit
the originally agreed upon crime or crimes, and, if so, whether the crime alleged in Count
1 was perpetrated by co-conspirators in furtherance of such conspiracy and was a natural
and probable consequence of the agreed upon criminal objective of such conspiracy.”
The jury was also instructed with CALJIC No. 8.26, which provided that where
coconspirators conspire to commit murder, they are liable for first degree murder for any
killing that arises out of that conspiracy, “whether the killing is intentional, unintentional,
or accidental.”
With respect to liability as a direct aider and abettor, the jury was instructed with
CALJIC No. 3.00 that “[t]he persons concerned in the commission of a crime who are
regarded by law as principals in the crime thus committed and equally guilty thereof
include: [¶] 1. Those who directly and actively commit the act constituting the crime, or
[¶] 2. Those who aid and abet the commission of the crime.” And it received CALJIC
No. 3.01: “A person aids and abets the commission of a crime when he or she, [¶] (1)
with knowledge of the unlawful purpose of the perpetrator and [¶] (2) with the intent or

-- 10 of 16 --

11
purpose of committing, encouraging, or facilitating the commission of the crime, by act
or advice aids, promotes, encourages or instigates the commission of the crime. [¶] A
person who aids and abets the commission of a crime need not be personally present at
the scene of the crime. [¶] Mere presence at the scene of a crime which does not itself
assist the commission of the crime does not amount to aiding and abetting. [¶] Mere
knowledge that a crime is being committed and the failure to prevent it does not amount
to aiding and abetting.”
The jury was also instructed on murder, malice, and what is required to find first
degree willful, deliberate, and premediated murder. However, the jurors did not receive
CALJIC No. 3.02, regarding liability as an aider and abettor under the natural and
probable consequences doctrine.
During closing, the prosecutor argued the two theories upon which defendant
could be liable for first degree murder: aiding and abetting a killing with the same intent
and conspiring to kill. The prosecutor then directed the jury to the evidence that
established defendant’s liability under each theory, arguing: “[Defendant] joined that
conspiracy. The intent of that conspiracy was that not Bonita Thompson die but that [her
nephew] die. [¶] . . . In this case clearly an expression of motive was that [the nephew]
had testified and it was a retaliatory killing. . . . [¶] Evidence in this case is that
[defendant] was a part of that conspiracy. He was a principal as an aider and abettor.
There were more than one person involved in the commission of this crime. We know
there was a shooter at the front door, the one that actually pulled the trigger and caused
Mrs. Thomson to die. There was a shooter at the back of the apartment. By

-- 11 of 16 --

12
[defendant’s] statements he indicated that was him. [¶] Now, how does that fit into the
conspiracy? Go shoot [the nephew], we’re going to kill him. Of course, the instructions
[defendant] related to us via the tape-recording is that as soon as he heard any shots at the
front door he was to shoot at the back. Diversion, distraction to allow those at the front
door to get the deed done and get away. That was part and parcel of that crime of murder
that was aided and abetted or coconspirator, conspiracy, that earns [defendant] your
verdict of guilty of first-degree murder.” In response, defense counsel conceded that
defendant committed a crime, but not the crime of murder.5
Given the evidence, the prosecution’s theories, jury instructions, and argument of
counsel, the jury could not have convicted defendant under an improper natural and
probable consequences theory because such theory was never promoted by counsel or
communicated to the jury.
Nonetheless, defendant contends that specific language in CALJIC No. 6.11 could
have led the jury to find liability based on the “natural and probable consequences” of the
conspiracy.6 Not so. The specific language defendant refers to was inapplicable to his
5 Defense counsel argued: “[Defendant] got out of harm’s way in that back yard,
and then when he heard that shots had been fired, he did what they told him to do and he
helped them get away. That’s what the People have proven here. They have proven that
[defendant] is guilty. They have proven beyond a reasonable doubt that he’s guilty of a
crime. They have not proven beyond a reasonable doubt that he is guilty of the crime of
murder in the first or second degree.”
6 “A member of a conspiracy is not only guilty of the particular crime that to his
knowledge his confederates agreed to and did commit, but is also liable for the natural
and probable consequences of any [crime] of a co-conspirator to further the object of the
conspiracy, even though such [crime] was not intended as a part of the agreed upon
[footnote continued on next page]

-- 12 of 16 --

13
case given the circumstances surrounding the charged offense and the instructions
provided to the jury. The evidence shows that defendant conspired to kill Bonita
Thompson’s nephew. As such, he was liable for first degree murder for any killing that
arises out of that conspiracy, “whether the killing is intentional, unintentional, or
accidental.” (CALJIC No. 8.26.) According to the People, under defendant’s logic, the
specific language in CALJIC No. 6.11 “would have invited the jury to consider murder as
a natural and probable consequence of a conspiracy to commit murder. Of course, this
unremarkable proposition is nonsensical and shows that the natural and probable
consequences language from the conspiracy instruction was surplus and inapplicable
here.” We agree.
Although the trial court erred in finding defendant was ineligible for relief because
defendant was the actual killer, we conclude the error was harmless because the record
demonstrates the jury necessarily concluded that defendant was guilty of deliberate and
premediated murder. As a result, the summary denial of defendant’s petition was proper.
3. No structural error in the trial court issuing its ruling in defendant’s
absence and that of his counsel.
Defendant argues the trial court committed structural error in making its ruling
without the presence of either defendant or his appointed counsel to argue on defendant’s
behalf. We disagree.
[footnote continued from previous page]
[footnote continued from previous page]
objective and even though he was not present at the time of the commission of such
[crime].”

-- 13 of 16 --

14
The retroactive relief afforded by section 1170.95 does not implicate defendant’s
Sixth Amendment rights. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1114-1115; cf.
People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [“[T]he retroactive relief
[defendants] are afforded by Senate Bill 1437 is not subject to Sixth Amendment analysis.
Rather, the Legislature’s changes constituted an act of lenity that does not implicate
defendants’ Sixth Amendment rights.”]; see People v. Perez (2018) 4 Cal.5th 1055, 1063-
1064 [trial court may determine facts based on new evidence regarding the defendant’s
eligibility for resentencing under Prop. 36 because retroactive application of the benefits
from the proposition are a legislative act of lenity that does not implicate 6th Amend.
rights; “a factual finding that results in resentencing ineligibility does not increase the
petitioner’s sentence; it simply leaves the original sentence intact”]; Dillon v. United
States (2010) 560 U.S. 817, 828-829.) Likewise, these proceedings do not implicate
article I, section 15 of the California Constitution, despite its more expansive scope.
Under our state constitution, a criminal defendant’s right to counsel extends to “critical”
stages of the criminal process, which “can be understood as those events or proceedings in
which the accused is brought in confrontation with the state, where potential substantial
prejudice to the accused’s rights inheres in the confrontation, and where counsel’s
assistance can help to avoid that prejudice.” (Gardner v. Appellate Division of Superior
Court (2019) 6 Cal.5th 998, 1004-1005.) But a proceeding initiated by a defendant who
has been convicted and sentenced, in which the trial court must determine whether the
record of conviction shows that the convicted defendant may be eligible for a sentence
reduction, is not a proceeding that subjects the defendant to potential substantial prejudice

-- 14 of 16 --

15
to his or her rights. Thus, the summary denial of defendant’s section 1170.95 petition in
the absence of appointed counsel does not violate the California Constitution.
Nonetheless, defendant faults the trial court for appointing counsel to represent
him, but then proceeding to make “its eligibility determination” without providing defense
counsel “any opportunity to argue on [defendant’s] behalf.” He contends “[t]his was in
effect a complete denial of counsel, which is structural error and reversible without any
reference to prejudice.” Not so. Section 1170.95 specifically contemplates that the trial
court must determine, before appointment of counsel or briefing, whether the record of
conviction shows that defendant falls within the provision of the statute. (§ 1170.95, subd.
(c).) Here, the prosecutor played no role in the proceedings. In fact, at the hearing, the
prosecutor did not say a word. Rather, the trial court simply issued its ruling. But, even if
the prosecutor’s presence at the proceeding in the absence of defendant or defense counsel
was improper, any error was harmless under any standard because defendant was
ineligible for relief under section 1170.95 as a matter of law based on the jury’s
conclusion that he was guilty of deliberate and premediated murder. (Cf. Law, supra, 48
Cal.App.5th at p. 826 [harmless error by not appointing counsel to aid in the court’s
determination of whether it should issue an order to show cause and hold an evidentiary
hearing on defendant’s § 1170.95 petition]; cf. People v. Simms (2018) 23 Cal.App.5th
987, 993 [“[T]he threshold issue of eligibility for relief under [Proposition 47’s
resentencing provision] may be determined as a matter of law from the uncontested
allegations of the petition or from the record of conviction.”]; see People v. Fedalizo
(2016) 246 Cal.App.4th 98, 109 [same; whether the crime qualifies for reduction and

-- 15 of 16 --

16
whether defendant has suffered a disqualifying conviction, “typically can be made without
a hearing because eligibility is often obvious on the incontrovertible written record”].)
III. DISPOSITION
The order denying defendant’s section 1170.95 petition for resentencing is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
MENETREZ
J.

-- 16 of 16 --