P. v. Hughes

Filed 3/12/21 P. v. Hughes CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MARRIN HUGHES,
Defendant and Appellant.
A160287
(Alameda County
Super. Ct. No. 159734A)
Defendant appeals from an order denying his petition for resentencing
under Penal Code section 1170.95. The trial court denied his petition on the
ground he was ineligible for relief because he was not convicted of murder
under a felony-murder or “aider and abettor natural and probable
consequences theory.” Defendant contends that although he made a prima
facie case for resentencing in his petition, and he specifically requested court-
appointed counsel, the trial court erred in refusing to assume the truth of the
petition’s factual allegations and in refusing to appoint counsel. While we
agree with defendant that the trial court should have appointed counsel, we
do not agree that it amounts to structural error. Rather, the trial court’s
error was harmless. We thus affirm.

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I. FACTUAL AND PROCEDURAL BACKGROUND
In 2008, an information was filed charging defendant and his
codefendant, Louis Sanders, with two counts of murder. (Pen. Code,1 § 187.)
Additionally, each was charged with possession of a firearm by a felon,
(former § 12021, subd. (a)(1)), as well as allegations of being armed with a
firearm (§ 12022, subd. (a)(1)), and with personal and intentional discharge of
a firearm causing great bodily injury and death (§§ 12022.7, subd. (a),
12022.53, subds. (b), (c), (d)). The information further alleged a multiple
murder special circumstance as to both. Lastly, the information alleged one
serious prior felony conviction against defendant and two against Sanders.
A. Trial, Conviction, and Prior Appeal
As set forth in our nonpublished opinion in an earlier appeal, People v.
Hughes (Mar. 13, 2013, A131963) (Hughes I), evidence was presented at trial
that in 2007, Jabari Harris, working with three associates, regularly sold
drugs in the vicinity of 45th Avenue and Bancroft Avenue in Oakland.
Because Harris wanted to monopolize the sale of drugs in this area, he
regularly confronted other would-be sellers.
At some point, defendant and Sanders began selling drugs in the area
claimed by Harris. During the month prior to the killings, defendant was
attempting to sell drugs in the area, and he and Harris “exchanged words.”
In the same period, Harris also confronted Sanders.
On September 11, 2007, three witnesses saw Sanders argue with and
then shoot Harris once in the head, killing him. However, one witness, 13-
year-old S.C., observed defendant shoot and kill Luis Coria, an associate of
Harris.
1 All statutory references are to the Penal Code.

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S.C. lived with his mother and sisters in a second-floor apartment on
Bancroft Avenue. He thought of Harris as a big brother, saw him every day,
and spent time with him. S.C. was familiar with defendant and Sanders,
having seen them in the neighborhood every day for “months” before the
killings. Defendant and Sanders had visited S.C.’s apartment and were free
to come and go. Defendant’s brother was dating S.C.’s mother at the time.
On the day of the killings, S.C. arrived home from school, stopping to
talk with Sanders and two others on the corner across the street from his
apartment. As they spoke, Sanders walked to the side of a building and
returned with a gun. Shortly thereafter, S.C. went home. After Harris
arrived in his car, he and S.C. walked to the store together. Once they
returned to the apartment, Harris told S.C. to go inside. S.C. complied.
Soon after, Sanders walked into the apartment and “told everybody to stay in
the house and don’t come outside,” then pulled a gun from his waistband, and
left.
S.C. went out onto the balcony two minutes later and observed Sanders
and Harris arguing in front of the apartment, just outside the gate to a fence
alongside the sidewalk. Coria was a few feet away on the sidewalk.
After Harris and Sanders had argued for a few minutes, Harris
answered his cell phone turning away from Sanders. At that moment, from
six feet away, Sanders pulled out his gun and shot Harris. Harris fell and
Sanders immediately began rummaging through his pockets.
Simultaneously, S.C. saw defendant appear from the side of the apartment
building, inside the fence. With a gun in hand, defendant moved toward the
open gate, in the general direction of Coria. As Coria was running away,
defendant shot him twice in the back. Once Coria fell, defendant moved
closer to him, fired more shots, and ran off.

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On February 7, 2011, the jury convicted defendant on all counts and
found true all allegations, including the special circumstance allegation. He
was sentenced to life imprisonment without the possibility of parole.2
We affirmed the judgment in March 2013, and that same year, the
Supreme Court denied review. (Hughes I, supra, A131963, review denied
June 12, 2013, S209687.)
B. Resentencing Petition
In November 2019, defendant filed a petition in the trial court for
resentencing pursuant to section 1170.95, which as discussed ante, allows for
the resentencing of defendants who were convicted of murder under a felony-
murder or natural and probable consequences theory. As relevant here,
defendant checked the boxes on the form petition alleging: “A complaint,
information, or indictment was filed against me that allowed the prosecution
to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine”; “At trial, I was convicted of 1st or 2nd
degree murder pursuant to the felony murder rule or the natural and
probable consequences doctrine”; “I request that this court appoint counsel
for me during this re-sentencing process”; “I was not the actual killer”; “I 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 “I was not a major participant in the felony or I did not act with
reckless indifference to human life during the course of the crime or felony.”3
2 Like defendant, the jury convicted Sanders on all counts and found
true all allegations, as well as the special circumstance allegation. He, too,
received a sentence of life imprisonment without possibility of parole.
3 Defendant also checked the box indicating that the murder was not of
a peace officer, which has no bearing in this matter.

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In November 2019, without appointing counsel or holding a hearing,
the court denied the petition by written order stating: “The Petition is denied
because relief under Penal Code section 1170.95 is unavailable because
Petitioner was not convicted of murder under a felony-murder or aider and
abettor natural and probable consequences theory.” Evidently, the court
reviewed defendant’s record of conviction, including our prior opinion, since
the court went on to explain: “A review of the instructions provided to the
jury reveals an absence of any instructions regarding felony-murder or aider
and abettor natural and probable consequences theories of murder. Rather,
Petitioner was convicted as the actual killer of Coria, and as to Harris,
murder on a direct aiding and abetting theory. As provided in Petitioner’s
direct appeal, there was sufficient evidence that Petitioner shot and killed
Coria aided and abetted in the death of Harris. ‘While we agree there is no
direct evidence of their knowledge, there was sufficient circumstantial
evidence to allow the jury to conclude beyond a reasonable doubt that
defendants were acting according to a preexisting plan to cooperate in the
killing of Harris and Coria.’ ([Hughes I, supra, A131963], emphasis in the
original.) The appellate court also rejected challenges to accomplice liability
jury instructions, noting that the jury found the special circumstance to be
true, thereby necessarily finding that both Sanders and Petitioner had the
specific intent to kill. ‘The jury could not have found the defendants were
aware of each other’s intent to kill Sanders and Coria and chose to aid each
other without also finding the necessary premeditation.’ ([Hughes I, supra,
A131963].)”
Referring again to our prior opinion, the court stated: “The First
District Court of Appeal further noted: [¶] [‘]While recognizing the jury
necessarily found he acted with intent to kill under the special circumstances

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instruction, [Petitioner] argues this was insufficient because the jury was not
required by that instruction to find he formed the intent to kill before the
fatal wounds were inflicted. While the argument is plausible in theory, it is
untenable on the evidence at trial. Harris was killed before Coria.
[Petitioner] could not have formed the intent to kill Harris only after seeing
him shot in the head. In order to conclude [Petitioner] acted with awareness
of Sanders’s intent and with the intent to kill, the jury necessarily found
[Petitioner] formed that intent prior to the killing of Harris.[’] [¶] ([Hughes I,
supra, A131963], footnote omitted.)”
II. DISCUSSION
Defendant contends he made a prima facie case for relief under
section 1170.95, subdivision (c) by checking the proper boxes, described
above, on his petition form, and therefore, the court erred in refusing to
assume the factual allegations were true. These factual allegations should
have been sufficient to trigger the trial court’s duty to appoint counsel.
Instead, according to defendant, the trial court “jumped the gun, deciding
whether to appoint counsel by looking at the record of conviction—and
ignoring [defendant’s] statutory right to present additional evidence—to see if
[defendant] would prevail on the merits.”
A. Section 1170.95
Senate Bill No. 1437 (2017–2018 Reg. Sess.), effective January 1, 2019
(Senate Bill 1437), revised the felony-murder rule in California “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).) The bill amended the definition of
malice in section 188, revised the definition of the degrees of murder to

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address felony-murder liability in section 189, and added section 1170.95,
“which provides the procedure by which those convicted of murder can seek
retroactive relief if the changes in the law would affect their previously
sustained convictions.” (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th
411, 417, citing Stats. 2018, ch. 1015, §§ 2–4.)
Section 1170.95, subdivision (a) states that a person convicted of felony
murder or murder under a natural and probable consequences theory may
file a petition with the court for resentencing “when all of the following
conditions apply: [¶] (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.”
Subdivision (b) of section 1170.95 requires the petitioner to submit a
declaration that avers eligibility for relief under the statute (based on the
requirements of § 1170.95, subd. (a)) and states the superior court case
number, the year of conviction, and whether the petitioner requests
appointment of counsel. (§ 1170.95, subd. (b).)
At issue here is subdivision (c), which dictates how the court must
handle the petition. Section 1170.95, subdivision (c) reads: “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

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of service of the petition and the petitioner may 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.”
The remainder of section 1170.95 provides, among other things, that a
hearing to determine whether to vacate the murder conviction, recall the
sentence, and resentence the petitioner as needed should be held within 60
days after issuance of the order to show cause; and the prosecution bears the
burden of proving beyond a reasonable doubt that the petitioner is ineligible
for resentencing. (§ 1170.95, subds. (d)–(g).)
B. The Trial Court Erred in Failing to Appoint Counsel, But Any
Error Was Harmless
As mentioned, defendant contends he made a prima facie case for relief
under section 1170.95, subdivision (c) by checking the appropriate boxes on
his petition form, and thus the court was obligated to appoint counsel and
could not rely on evidence outside of the petition to summarily deny it.
While this issue is pending before our Supreme Court, various Courts
of Appeal have rejected this argument, concluding the court can find the
petitioner failed to make a prima facie case and summarily deny the petition,
without appointment of counsel, not only if there is a deficiency on the face of
the petition, but also where the record of conviction demonstrates that the
petitioner is ineligible for relief as a matter of law. (See, e.g. People v. Lewis
(2020) 43 Cal.App.5th 1128, 1137–1138, review granted Mar. 18, 2020,
S260598; People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted
Mar. 18, 2020, S260410; People v. Verdugo (2020) 44 Cal.App.5th 320, 328–
330, review granted Mar. 18, 2020, S260493; People v. Edwards (2020)
48 Cal.App.5th 666, 673–675, review granted July 8, 2020, S262481; People v.

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Tarkington (2020) 49 Cal.App.5th 892, 899, review granted, Aug. 12, 2020,
S263219.)
However, we took a different view of section 1170.95, subdivision (c) in
People v. Cooper (2020) 54 Cal.App.5th 106 (Cooper), review granted
November 10, 2020, S264684. There, the trial court denied a resentencing
petition without appointing counsel, concluding the petitioner was ineligible
for resentencing as a matter of law based on the transcript of the preliminary
hearing. (Cooper, at p. 108.) We held this was error after determining the
first sentence of section 1170.95, subdivision (c) is a topic sentence
summarizing the trial court’s task before issuing an order to show cause, with
the later sentences detailing the procedure. (Cooper, at p. 118.) On that
basis, subdivision (c) does not describe two prima facie reviews with the right
to counsel attaching only at the second one, but a single prima facie review
requiring appointment of counsel upon request unless the petition is
insufficient on its face. (Cooper, at pp. 118–123.) Cooper further ruled the
trial court improperly relied on the preliminary hearing transcript to
conclude the petitioner was ineligible for relief, because the transcript did not
reflect a jury’s factual finding or a defendant’s admission, and the petitioner
was not compelled to address the factual basis for his plea or facts at the
preliminary hearing before counsel was appointed. (Id. at pp. 123–126.)
While defendant relies on Cooper in support of his claim that the trial
court erred by summarily denying his facially sufficient petition without
appointing counsel, the Attorney General takes a contrary position,
maintaining Cooper was wrongly decided and specifying several reasons why
our analysis is “faulty.” However, we need not address the Attorney
General’s assessment of our analysis in Cooper, because as later explained in
People v. Daniel (2020) 57 Cal.App.5th 666 (Daniel), review granted

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February 24, 2021, S266336, any error in summarily denying the defendant’s
petition, without appointing counsel, was harmless error.4
In Daniel, the trial court had erred by failing to appoint counsel for the
petitioner before denying a resentencing petition. This court, nonetheless,
rejected the argument the error was structural, instead concluding the failure
to appoint counsel violated a mere statutory right, not a right protected by
the federal Constitution, “and thus [was] not reversible per se—because it
was not ‘ “analogous to” . . . “the total deprivation of the right to counsel at
trial.” ’ ” (Daniel, supra, 57 Cal.App.5th at pp. 674–675, review granted.)
“Rather, the failure to appoint counsel upon the filing of a facially sufficient
petition under section 1170.95 is susceptible to review for prejudice.
[Citation.] And harmlessness is established if the record ‘conclusively
demonstrate[s] that [the petitioner] was ineligible for relief as a matter of
law.’ ” (Id. at p. 675.) As such, this court ruled, a defendant “whose petition
is denied before an order to show cause issues has the burden of showing ‘it is
reasonably probable that if [he or she] had been afforded assistance of
counsel his [or her] petition would not have been summarily denied without
an evidentiary hearing.’ ” (Id. at p. 676.) Because the jury in Daniel was not
instructed on felony murder or murder under the natural and probable
consequences doctrine, the petitioner was ineligible for resentencing relief as
a matter of law and the error in not appointing counsel was harmless. (Id. at
p. 677.)
Here too, the record of conviction demonstrates, and defendant does not
dispute, that the jury was not instructed on felony murder or natural and
probable consequences murder. Even though the issue of whether a trial
court may consider the record of conviction to summarily deny a
4 Daniel was decided by the same panel of justices who decided Cooper.

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section 1170.95 petition is pending before the California Supreme Court, as
in Daniel, supra, 57 Cal.App.5th at pages 676–677, review granted, we follow
the cases interpreting section 1170.95, subdivision (c) that permit the trial
court to consider the record of conviction, including jury instructions. (See
People v. Edwards, supra, 48 Cal.App.5th at p. 674, review granted [trial
court can consider jury instructions in determining if prima facie showing has
been made].) Accordingly, because defendant was not convicted of murder
based on any theory of liability affected by Senate Bill 1437, he is ineligible
for resentencing as a matter of law.
That defendant was not entitled to resentencing relief is further
bolstered by another facet of the conviction record. As noted in our prior
opinion in the direct appeal, defendant was the actual killer of Coria and
“there was sufficient circumstantial evidence to allow the jury to conclude
beyond a reasonable doubt that defendants were acting according to a
preexisting plan to cooperate in the killing of Harris and Coria.” (Hughes I,
supra, A131963; see People v. Lewis, supra, 43 Cal.App.5th at pp. 1137–1138,
review granted [trial court may consider record of conviction, including prior
opinion in petitioner’s direct appeal].) In short, there is no reasonable
probability defendant’s petition would have been granted if the trial court
had appointed counsel, and any error in summarily denying the petition after
reviewing the record of conviction without appointing counsel, was harmless.
III. DISPOSITION
Accordingly, the order denying defendant’s petition for resentencing is
affirmed.

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MARGULIES, ACTING P. J.
WE CONCUR:
BANKE, J.
SANCHEZ, J.
A160287
People v. Hughes

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