P. v. Simpson

Filed 3/10/20 P. v. Simpson 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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not been certified for publication or ordered published for purposes of rule 8.1115.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.
DONALD ALAN SIMPSON,
Defendant and Appellant.
B296083
(Los Angeles County
Super. Ct. No. TA127755)
APPEAL from an order of the Superior Court of Los
Angeles County, Richard R. Campo, Judge. Affirmed.
Richard D. Miggins, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Amanda V. Lopez and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.

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INTRODUCTION
Donald Simpson appeals from a postconviction order
denying his petition for resentencing under Penal Code section
1170.95.1 The court found Simpson did not qualify for
resentencing because the jury found true the special
circumstance under section 190.2, subdivision (a)(17)(A), that the
murder was committed during the commission of a robbery, for
which the jury had to find Simpson had the intent to kill or was a
major participant in the crime and acted with reckless
indifference to human life. On appeal Simpson contends the trial
court erred in summarily rejecting his petition without first
appointing him counsel, inviting a response from the People, and
holding a hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
The information charged Simpson with 12 counts, including
murder (§ 187) (count 1), with the special allegation the murder
was committed while Simpson was engaged in the commission of
a robbery (§ 190.2, subd. (a)(17)(A)).3 (Simpson I, supra,
1 All further statutory references are to the Penal Code.
2 The evidence presented at trial is set forth in our opinion in
Simpson I, supra, B271460.
3 Section 190.2, subdivision (a)(17), provides for a penalty of
death or life imprisonment without the possibility of parole if
“[t]he murder was committed while the defendant was engaged
in, or was an accomplice in, the commission of, attempted
commission of, or the immediate flight after committing, or

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B271460.) The information alleged Simpson personally used a
firearm in connection with the murder and specified other
charges (§ 12022.53, subd. (b)), and the murder and specified
offenses were committed to benefit a criminal street gang
(§ 186.22, subd. (b)(1)(C)). (Simpson I, supra, B271460.) The jury
convicted Simpson on all counts and found each of the special
allegations true.
In People v. Simpson (July 11, 2017, B271460) (nonpub.
opn.) (Simpson I) we affirmed Simpson’s convictions but
remanded for resentencing in light of multiple sentencing errors.
On remand following our opinion in Simpson I, supra, B271460,
the trial court sentenced Simpson to an aggregate state prison
sentence of life without the possibility of parole, plus a life
sentence with a 25-year minimum parole eligibility period, plus
44 years four months. Simpson again appealed, cfontending the
trial court’s imposition on remand of a consecutive life sentence
with a 25-year minimum parole eligibility period was an
unauthorized sentence. We agreed and directed the trial court to
correct the minute order and abstract of judgment to strike the
reference on count 1 for murder to a 25-year minimum parole
eligibility period. (People v. Simpson (Apr. 3, 2019, B291875)
[nonpub. opn.] (Simpson II).) But we rejected Simpson’s
argument we should vacate his conviction of first degree murder
by applying Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437) retroactively, concluding the exclusive remedy for
Simpson to obtain relief under Senate Bill 1437 was to petition
for relief under section 1170.95. (Simpson II, supra, B291875.)
attempting to commit, the following felonies: [¶] (A) Robbery in
violation of Section 211 . . . .”

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On February 7, 2019 Simpson, in pro per., filed a petition
for relief stating he had met the requirements under section
1170.95 for relief under Senate Bill 1437, including that (1) the
information allowed the prosecution to proceed under a theory of
felony murder; (2) he was convicted of murder based on a theory
of felony murder; and (3) Simpson could not be convicted of first
or second degree murder under changes to sections 188 and 189
effective January 1, 2019. Simpson requested the court appoint
him counsel and vacate his murder conviction. In his declaration
Simpson stated the jury was instructed on the elements to prove
the alleged special circumstance under section 190.2, subdivision
(d); if the jury found the special circumstance under section
190.2, subdivision (d), true, this “would potentially disqualify
[Simpson] from relief”; the jury did not find the special
circumstance true; and because the jury did not find the special
circumstance true, Simpson qualified for relief.4
On February 11, 2019 the superior court summarily denied
Simpson’s petition without Simpson or any counsel present,
finding, “The jury not only found the petitioner guilty of first
degree murder but also found true, the special circumstance
under [section] 190.2[, subdivision] (a)(17)(A), that the robbery
was committed while the petitioner was engaged in the
commission of a robbery. The jury was instructed that they could
not find the special circumstance allegation true unless they
found that the petitioner had the intent to kill or the petitioner
4 According to the petition, Simpson attached exhibits,
including the information, jury instruction on the special
circumstance allegation, and verdict forms. Although the clerk’s
transcript does not include the exhibits, they are part of the
record in Simpson I, supra, B271460.

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was a major participant in the crime and that he acted with
reckless indifference to human life. (See CALCRIM No. 703). In
fact, by finding the allegation to be true, the jury had to have
found that petitioner, even if not the actual killer, acted with the
intent to kill or was a major participant and acted with reckless
indifference to human life. [¶] Therefore, due to the jury’s
findings as stated and pursuant to . . . section 189[, subdivision]
(e)(3), the petitioner does not qualify for resentencing [under]
section 1170.95.” The court ordered the hearing on Simpson’s
petition taken off calendar.
Simpson timely appealed.
DISCUSSION
A. Senate Bill 1437
On September 30, 2018 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); People v. Martinez (2019) 31 Cal.App.5th 719, 723
(Martinez).) “Senate Bill 1437 accomplishes this by amending
section 188, which defines malice, and section 189, which defines
the degrees of murder, and as now amended, addresses felony
murder liability.” (Martinez, at p. 723; accord, Verdugo, at
p. 325.)

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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.” Prior to the enactment of Senate Bill
1437, murder committed in the perpetration of or attempt to
perpetrate specified felonies, including robbery, was first degree
murder. (Former § 189; People v. Powell (2018) 5 Cal.5th 921,
942 [“‘“Under the felony-murder doctrine, when the defendant or
an accomplice kills someone during the commission, or attempted
commission, of an inherently dangerous felony, the defendant is
liable for either first or second degree murder, depending on the
felony committed.”’”].) Senate Bill 1437 also added section 189,
subdivision (e), which provides that “[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
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.”
As we discussed in Simpson II, the legislation also added
section 1170.95, which provides a procedure for people convicted
of murder to petition the trial court for retroactive relief if the
changes in the law affect their previously sustained convictions.
(Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4.) Section 1170.95,
subdivision (a), provides, “A person convicted of felony murder or

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murder under a natural and probable consequences theory may
file a petition with the court that sentenced the petitioner to have
the petitioner’s murder conviction vacated and to be resentenced
on any remaining counts 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 . . . . [¶] (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.” Section 1170.95, subdivision
(b)(1), provides that the petition “shall be filed with the court that
sentenced the petitioner.”
Pursuant to section 1170.95, subdivision (b)(1)(A), the
petition must include a declaration by the petitioner that he or
she is eligible for relief under the section. As we explained in
Verdugo, supra, 44 Cal.App.5th at page 327, “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.’ (§ 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

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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.’”
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).) “[T]he burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing.” (Ibid.)
B. The Trial Court Did Not Err in Summarily Denying the
Petition Without Appointing Counsel or Holding a Hearing
Simpson contends under section 1170.95, subdivision (c), he
was entitled to appointment of counsel and a hearing because he
alleged facts that, if true, would have entitled him to relief. We
rejected this contention in Verdugo, concluding 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 .) Under section 1170.95, subdivision (b)(2), the court
performs an initial review to determine the facial sufficiency of
the petition. (Verdugo, at p. 328.) As part of this review, if the
court determines any of the information required under section
1170.95, subdivision (b)(1), is missing “and cannot be readily
ascertained by the court,” the court may deny the petition
without prejudice. (Verdugo, at pp. 327-328.)

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As part of the first prima facie determination required by
section 1170.95, subdivision (c), the court may consider the same
documents available for the initial review under subdivision
(b)(1), including “documents in the court file or otherwise part of
the record of conviction that are readily ascertainable.” (Verdugo,
supra, 44 Cal.App.5th at pp. 327, 329 [superior court properly
considered record of conviction and appellate opinion affirming
conviction in concluding defendant had intent to kill because of
conviction of conspiracy to commit murder]; accord, People v.
Lewis (2020) 43 Cal.App.5th 1128, 1138-1139 [superior court
properly relied on record of conviction showing he was convicted
as direct aider and abettor in determining he was not eligible for
relief].)
As we explained in Verdugo, to determine whether the
petitioner is eligible for relief on the basis he was convicted of
first or second degree murder under a charging document that
permitted the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
theory, “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

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bodily injury or death in a single victim homicide within the
meaning of section 12022.53, subdivision (d).” (Id. at p. 330.)
Here, the jury found the special circumstance allegation
under section 190.2, subdivision (a)(17)(A), to be true.
(Simpson II, supra, B291875.) Further, the trial court properly
instructed the jury with CALCRIM No. 703, which provides to
prove the special circumstance true for a defendant who is not
the actual killer, the People must prove beyond a reasonable
doubt “either that [d]efendant Simpson intended to kill, or the
People must prove all of the following: [¶] 1. Defendant
Simpson’s participation in the crime began before or during the
killing; [¶] 2. Defendant Simpson was a major participant in the
crime; [¶] AND [¶] 3. When Defendant Simpson participated in
the crime, he acted with reckless indifference to human life.”
Simpson was therefore not eligible for relief under Senate
Bill 1437 because under section 189, subdivision (e), he could still
be convicted of murder based on his intent to kill or that he was a
major participant in the robbery and acted with reckless
indifference to human life. (People v. Gutierrez-Salazar (2019)
38 Cal.App.5th 411, 414, 419 [petitioner not eligible for relief
under Senate Bill 1437 because jury found true special
circumstance allegation that murder was committed during
commission of a robbery]; see People v. Gonzalez (2018) 5 Cal.5th
186, 202 [felony-murder special-circumstance instructions
required jury to find aider and abettor intended to kill or was a
major participant and acted with reckless indifference to human
life].)
Because Simpson 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. (Verdugo, supra,

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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 [“[T]he trial
court’s duty to appoint counsel does not arise unless and until the
court makes the threshold determination that petitioner ‘falls
within the provisions’ of the statute.”].)
DISPOSITION
The order denying Simpson’s petition for resentencing is
affirmed.
FEUER, J.
We concur:
PERLUSS, P. J.
ZELON, J.

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