P. v. Griffin

Filed 4/15/20 P. v. Griffin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.
DONALD LEE GRIFFIN,
Defendant and Appellant.
B297212
(Los Angeles County
Super. Ct. No. TA109162)
APPEAL from an order of the Superior Court of
Los Angeles County. Pat Connolly, Judge. Affirmed.
Jennifer A. Mannix, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters and
Susan Sullivan Pithey, Assistant Attorneys General, Idan Ivri
and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff
and Respondent.

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Defendant and appellant Donald Lee Griffin (defendant)
appeals from the summary denial of his petition for resentencing
pursuant to Penal Code section 1170.95.1 He contends that he
was entitled to the appointment of counsel before the trial court’s
determination of ineligibility under the statute. Defendant also
contends that the trial court erred in relying on the appellate
opinion affirming his conviction to find him ineligible as a matter
of law. Finding no merit to defendant’s contentions, we affirm
the order.
BACKGROUND
Senate Bill No. 1437 (S.B. 1437)
The Legislature passed S.B. 1437 in 2018 in order 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).)2
____________________________________________________________
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 The felony-murder rule imposed murder liability on a
defendant for a killing by an accomplice during the commission,
or attempted commission, of an inherently dangerous felony,
without proof of intent to kill, or even implied malice, so long as
the defendant intended to commit the underlying felony. (See
People v. Gonzalez (2012) 54 Cal.4th 643, 654.) Under the
natural and probable consequences doctrine, a “‘person who
knowingly aids and abets criminal conduct is guilty of not only
the intended [target] crime . . . but also of any other crime the
perpetrator actually commits . . . that is a natural and probable

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S.B. 1437 amended sections 188 and 189. As amended, section
188 limits a finding of malice, as follows: “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.” (§ 188, subd. (a)(3).) Subdivision (e) of
section 189 now reads: “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.”
S.B. 1437 added section 1170.95, which permits a person
convicted of murder, but who could not have been convicted of
murder under the amended statutes, to petition the court to
vacate the murder conviction and resentence the petitioner on the
remaining charges, or if “murder was charged generically, and
the target offense was not charged, the petitioner’s conviction
shall be redesignated as the target offense or underlying felony
consequence of the intended crime.’” (People v. Medina (2009) 46
Cal.4th 913, 920.)

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for resentencing purposes.” (§ 1170.95, subds. (a)-(e).) Among
other requirements, section 1170.95, subdivision (b)(1) provides:
“The petition shall include all of the following:
“(A) A declaration by the petitioner that he or she is
eligible for relief under this section, based on all the
requirements of subdivision (a).
“(B) The superior court case number and year of the
petitioner’s conviction.
“(C) Whether the petitioner requests the appointment
of counsel.”
Defendant’s murder conviction
In 2012, defendant was convicted of murder and two counts
of attempted willful, deliberate, and premeditated murder, after
a jury trial.3 The jury found true the allegation that in
committing the crimes, defendant personally used a firearm, and
personally and intentionally discharged a firearm within the
meaning of section 12022.53, subdivisions (b) and (c) respectively.
The jury also found true the allegation that defendant personally
and intentionally discharged a firearm causing great bodily
injury or death within the meaning of section 12022.53,
subdivision (d). (Griffin I, supra, B234979.) The trial court
sentenced defendant to a total term of 109 years to life in prison,
which included 25 years to life for the murder, plus 25 years to
____________________________________________________________
3 We granted defendant’s request for judicial notice of our
opinion affirming defendant’s 2012 convictions where we
summarize the relevant background. (See People v. Griffin (Nov.
28, 2012, B234979) [nonpub. opn.] (Griffin I).)

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life for the firearm enhancement of section 12022.53, subdivision
(d). (Ibid.)
The evidence at defendant’s 2012 trial showed that
defendant was the actual shooter and had no accomplice.
Defendant had arranged a meeting with two prostitutes at the
house of their pimp, Dirk Jackson. The two women agreed to
have sex with him for $150, which he paid upon arrival. One
woman took the money to Jackson in a back room, took the gun
that defendant carried, placed it in a basket in the living room,
and then had sex with him. When they finished, defendant had
sex with the other woman. When he was told by the first woman
to hurry, that his hour was almost up, defendant began acting
nervously and demanded his money back. When she refused to
refund his money, defendant became “loud and crazy,” and said
he intended to take it back. Defendant retrieved his gun from the
basket, waved and pointed the gun at them, and screamed that
he was going to kill them. When Jackson emerged from the back
room, defendant fatally shot Jackson, and then shot one of the
women. Though he fired at the other woman, the shot missed
her.4
Petition for resentencing
In March 2019 defendant filed a petition in the trial court
for resentencing under section 1170.95, in which he alleged that
he was convicted of murder under the felony-murder rule or the
natural and probable consequences doctrine, and could not now
____________________________________________________________
4 Defendant testified that initially Jackson had the gun, over
which the two men struggled. Jackson fired two shots which
missed before defendant was able to take the gun away from him.
As Jackson advanced, defendant shot him. Defendant claimed
that he fired just once, and denied shooting at the two women.

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be convicted of murder because of the changes to sections 188 and
189, effective January 1, 2019. The trial court summarily denied
the petition, explaining its ruling as follows: “The appellate
opinion affirming 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.” Defendant filed a timely notice of appeal
from the order.
DISCUSSION
Defendant contends that the trial court erred by basing its
denial solely on our opinion in Griffin I, without first appointing
counsel for defendant and requesting additional briefing.
Subdivision (c) of section 1170.95 sets forth the procedure
to be followed by the trial court upon receipt of a petition, as
follows:
“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. 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.”
Defendant acknowledges that section 1170.95, subdivision
(c) calls for two separate prima facie determinations by the court,
and that the first is a threshold showing that the petitioner falls

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within the provisions of the statute. Defendant contends that
this initial determination involves no more than a review of the
several required factual allegations in the petition, and that his
petition satisfied the threshold prima facie showing because it
alleged that he was convicted of murder and could not be
convicted of murder under the amended statutes.
We disagree. The form petition contains the following
three allegations: “1. 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”; “2a. At trial, I was convicted of
1st or 2nd degree murder pursuant to the felony murder rule or
the natural and probable consequences doctrine”; and “3. I could
not now be convicted of 1st or 2nd degree murder because of the
changes made to Penal Code [sections] 188 and 189, effective
January 1, 2019.” The form petition had boxes to check for the
allegations that the petitioner was convicted as a participant in a
crime resulting in death and was not the actual killer, but those
were left unchecked. The form also left unchecked the allegation
that the conviction was for second degree murder under the
natural and probable consequences doctrine.
Such allegations or lack thereof did not give the trial court
enough information to determine which conviction defendant
suffered or whether the conviction fell within the provisions of
section 1170.95. Subdivision (b)(2) of section 1170.95 provides
that 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.” (Italics
added.) It stands to reason that the information most readily
ascertainable by the trial court would be in the record of

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conviction. Appellate opinions are part of the record of
conviction. (People v. Cruz (2017) 15 Cal.App.5th 1105, 1110.)
Other appellate courts have recently concluded that the
initial determination of whether a petitioner’s conviction falls
within the statutory requirements for resentencing, should be
based upon the record of conviction, in addition to the allegations
of the petition. (See People v. Lewis (2020) 43 Cal.App.5th 1128,
1137-1138 (Lewis), review granted Mar. 18, 2020, S260598;
accord, People v. Verdugo (2020) 44 Cal.App.5th 320, 333
(Verdugo), review granted Mar. 18, 2020, S260493.) In Lewis, the
court compared section 1170.95’s initial determination to the
procedure followed for resentencing petitions filed pursuant to
section 1170.18 (enacted by Proposition 47) where the “court
undertakes an ‘“initial screening”’ of the petition to determine
whether it states ‘“a prima facie basis for relief.”’ [Citation.] In
evaluating the petition at that stage, the court is permitted to
examine the petition ‘as well as the record of conviction.’
[Citation.]” (Lewis, supra, at p. 1137, quoting People v.
Washington (2018) 23 Cal.App.5th 948, 953, 955.) The court also
compared the initial determination to the procedure followed for
resentencing petitions under section 1170.126, enacted by
Proposition 36, where the trial court can review the petitioner’s
conviction to determine whether the petitioner’s initial burden to
establish “‘a prima facie case for eligibility’” has been met.
(Lewis, supra, at p. 1138, citing People v. Bradford (2014) 227
Cal.App.4th 1322, 1341.)
We agree with Lewis that the other resentencing statutes
provide persuasive guidance. When the meaning of a statute is
in doubt, it should be construed with a view to the entire
statutory scheme of which it is a part. The courts should also

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look to other considerations, such as public policy and
expressions of legislative purpose. (See People v. Zambia (2011)
51 Cal.4th 965, 972.) One stated legislative purpose of S.B. 1437
was “to ensure that murder liability is not imposed on a person
who is not the actual killer.” (Stats. 2018, ch. 1015, § 1(f).) As
the Lewis court observed, “Allowing the trial court to consider its
file and the record of conviction is also sound policy. . . . ‘It would
be a gross misuse of judicial resources to require the issuance of
an order to show cause or even appointment of counsel based
solely on the allegations of the petition, which frequently are
erroneous, when even a cursory review of the court file would
show as a matter of law that the petitioner is not eligible for
relief. . . . [I]t would be entirely appropriate to summarily deny
the petition based on petitioner’s failure to establish even a prima
facie basis of eligibility for resentencing.’ [Citation.]” (Lewis,
supra, 43 Cal.App.5th at p. 1138.) Thus, summary denial is
appropriate where a review of the record of conviction establishes
that the petitioner is ineligible for relief as a matter of law,
because his conviction remains valid notwithstanding the
amendments to sections 188 and 189. (See Verdugo, supra, 44
Cal.App.5th at p. 330.)
When it appears from the record of conviction that the
petitioner is ineligible for relief as a matter of law, the trial court
is not required to appoint counsel before summarily denying the
petition. (People v. Cornelius (2020) 44 Cal.App.5th 54, 58,
review granted Mar. 18, 2020, S260410; Verdugo, supra, 44
Cal.App.5th at pp. 332-333; Lewis, supra, 43 Cal.App.5th at pp.
1139-1140.) “Of course, if the petitioner appeals the superior
court’s summary denial of a resentencing petition, appointed
counsel on appeal can argue the court erred in concluding his or

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her client was ineligible for relief as a matter of law.” (Verdugo,
at p. 333.) Here, counsel does not argue that the court’s
conclusion was erroneous. A petitioner who was the actual the
killer and who was found to have personally and intentionally
discharged a firearm causing the victim’s death, within the
meaning of section 12022.53, subdivision (d), is ineligible for
resentencing under section 1170.95. (Cornelius, supra, at p. 58.)
We conclude the trial court properly considered the record
of conviction, including the appellate opinion affirming
defendant’s conviction, which shows that defendant was the
actual killer and who was found to have personally and
intentionally discharged a firearm causing the victim’s death,
within the meaning of section 12022.53, subdivision (d).
Defendant is thus ineligible for resentencing under section
1170.95 and the trial court was not required to appoint counsel.
DISPOSITION
The order denying defendant’s petition for resentencing
under section 1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT

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