P. v. Oakley

Filed 4/27/20 P. v. Oakley CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
PERRY LEE OAKLEY,
Defendant and Appellant.
B297533
(Los Angeles County
Super. Ct. No. YA080803)
APPEAL from a judgment of the Superior Court for Los Angeles
County, Edmund Willcox Clarke, Jr., Judge. Affirmed.
Joanna McKim, 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, Amanda V. Lopez and Viet H. Nguyen, Deputy Attorneys
General, for Plaintiff and Respondent.

-- 1 of 13 --

2
Defendant Perry Lee Oakley appeals from the denial of his
petition for resentencing under Penal Code1 section 1170.95. Without
appointing counsel for defendant and without defendant present, the
trial court denied the petition on the ground that defendant’s two
second degree murder convictions did not come within the statute and
therefore he did not qualify for resentencing. Defendant contends the
trial court prejudicially erred and violated his federal constitutional
rights by summarily denying his petition without appointing him
counsel, and that he made a prima facie case showing his convictions
came within the provisions of section 1170.95, subdivision (b). Finding
no error, we affirm the judgment.
BACKGROUND
A portion of our background summary is based upon our prior
decision affirming that conviction (People v. Oakley [nonpub. opn.], case
No. B248796, filed Feb. 17, 2015 (Oakley I)), and other parts of the
record in that appeal.2
A. Defendant’s Murder Convictions
The facts underlying defendant’s murder convictions were
summarized in the opening statement of our prior decision affirming his
1 Further undesignated statutory references are to the Penal Code.
2 The Attorney General has asked us to take judicial notice of the record
from defendant’s prior appeal, and attached to that request our prior opinion
affirming the judgment and the jury instructions given during defendant’s
trial. We grant that request.

-- 2 of 13 --

3
convictions: “While intoxicated, defendant Perry Oakley drove an
Acura sedan through a stop sign and collided with a Toyota Camry,
killing two of the Camry’s passengers.” (Oakley I, supra, p. 2.) He was
charged with two counts of second degree murder (§ 187, subd. (a)),
along with several other counts. (Oakley I, supra, p. 2.) At trial, the
jury was instructed with CALCRIM No. 520. (Oakley I, supra, p. 17.)
That instruction informed the jury that to prove that defendant was
guilty of murder, “the People must prove that: [¶] 1. The defendant
committed an act that caused the death of another person; [¶] AND [¶]
2. When the defendant acted, he had a state of mind called malice
aforethought.” The instruction also informed the jury that malice
aforethought could be express malice or implied malice, and instructed
that “[t]he defendant acted with implied malice if: [¶] 1. He
intentionally committed an act; [¶] 2. The natural and probable
consequences of the act were dangerous to human life; [¶] 3. At the
time he acted, he knew his act was dangerous to human life; [¶] AND
[¶] 4. He deliberately acted with conscious disregard for human life.”
The jury convicted defendant of both murder counts, as well as
several other counts, and the trial court sentenced him to 82 years to
life in state prison. (Oakley I, supra, at p. 2.) Defendant appealed from
the judgment and we affirmed, finding, among other things, there was
sufficient evidence to support the jury’s conclusion that defendant acted
with implied malice. (Id. at pp. 6-8.)

-- 3 of 13 --

4
B. Defendant’s Petition for Resentencing
Four years after we affirmed the judgment against defendant,
defendant filed a form petition for resentencing under section 1170.95.
The form petition has several boxes the petitioner may (or must) check.
Among the boxes defendant checked were boxes indicating that his
murder convictions were based upon the felony murder rule or the
natural and probable consequences doctrine, that he could not now be
convicted of those counts due to changes made to sections 188 and 189,
and that he requested that counsel be appointed for him “during this re-
sentencing process.”
The trial court reviewed the petition without defendant (or the
prosecutor) present; the court noted in its minute order that defendant
was not represented by counsel. The court denied the petition, stating:
“Defendant is the actual killer, not someone convicted only as an
accomplice. His conviction was affirmed on appeal.” The court then
quoted the opening line of our opinion in Oakley I describing
defendant’s conduct that resulted in his murder convictions.
Defendant timely filed a notice of appeal from the trial court’s
order denying his petition.
DISCUSSION
A. Amendment of the Natural and Probable Consequences Doctrine
On January 1, 2019, California’s felony murder rule and the
natural and probable consequences doctrine were altered by Senate Bill
No. 1437 (S.B. 1437). S.B. 1437 was enacted to “amend the felony
murder rule and the natural and probable consequences doctrine, as it

-- 4 of 13 --

5
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).) It accomplished this purpose by amending section 188, defining
malice, and section 189, defining the degrees of murder.
In amending section 188, S.B. 1437 added the following provision:
“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); Stats. 2018, ch.
1015, § 2.) S.B. 1437 also added the following provision to section 189:
“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.” (§ 189, subd. (e); Stats.
2018, ch. 1015, § 3.)
B. Petitions Under Section 1170.95
In addition to amending the felony murder rule and the natural
and probable consequences doctrine, S.B. 1437 also added section

-- 5 of 13 --

6
1170.95. (Stats. 2018, ch. 1015, § 4.) That statute allows a person
convicted of felony murder, or murder under the natural and probable
consequences doctrine to “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.” (§ 1170.95, subd. (a).)
Subdivision (b)(1) of section 1170.95 requires that the petition be
filed with the court that sentenced the petitioner, and must include (a)
a declaration by the petitioner that he or she is eligible for relief under
the section; (b) the superior court case number and year of conviction;
and (c) whether the petitioner requests appointment of counsel.
Subdivision (b)(2) provides that the trial court may deny the petition
without prejudice if any of the information required by subdivision
(b)(1) is missing and cannot be readily ascertained by the court.
(§ 1170.95, subd. (b)(2).)
Subdivision (c)—the provision at issue in this appeal—provides:
“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

-- 6 of 13 --

7
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.”
(§ 1170.95, subd. (c).)
The remainder of the statute sets forth the procedure for
responding to, and the hearing on, the order to show cause, as well as
post-hearing matters.
C. Defendant’s Contentions
Defendant contends (1) the trial court erred and violated his
federal constitutional rights by denying his petition without appointing
counsel for him and without allowing the parties an opportunity to
submit briefing; and (2) the trial court erred in denying his petition
because he alleged facts that, if true, would entitle him to relief.
Neither contention has merit.
1. Summary Denial Before Appointment of Counsel and
Briefing
The issue whether the summary denial by a trial court of a section
1170.95 petition before the appointment of counsel is permitted under
the statute has been addressed by several courts and is currently before
our Supreme Court. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137-
1140 (Lewis), rev. granted, S260598, March 18, 2020; People v.
Cornelius (2020) 44 Cal.App.5th 54, 58 (Cornelius), rev. granted,

-- 7 of 13 --

8
S260410, March 18, 2020; People v. Verdugo (2020) 44 Cal.App.5th 320
(Verdugo), rev. granted, S260493, March 18, 2020.) We find the
analysis in Verdugo particularly persuasive. As that court explained,
“the relevant statutory language, viewed in context, makes plain the
Legislature’s intent to permit the sentencing court, before counsel must
be appointed, to examine readily available portions of the record of
conviction to determine whether a prima facie showing has been made
that the petitioner falls within the provisions of section 1170.95—that
is, a prima facie showing the petitioner may be eligible for relief
because he or she could not be convicted of first or second degree
murder following the changes made by [S.B.] 1437 to the definition of
murder in sections 188 and 189.” (Verdugo, supra, 44 Cal.App.5th at p.
323; see also Lewis, supra, 43 Cal.App.5th at pp. 1137-1140; Cornelius,
supra, 44 Cal.App.5th at p. 58.)
In reaching this conclusion, the Verdugo court noted that
subdivision (b)(2) of section 1170.95 provides for an initial review to
determine the facial sufficiency of the petition, while subdivision (c)
“then prescribes two additional court reviews before an order to show
cause may issue.” (Verdugo, supra, 44 Cal.App.5th at p. 328.) The first
of those is “made before any briefing to determine whether the
petitioner has made a prima facie showing he or she falls within section
1170.95—that is, that the petitioner may be eligible for relief—and a
second after briefing by both sides to determine whether the petitioner
has made a prima facie showing he or she is entitled to relief.” (Ibid.)

-- 8 of 13 --

9
The court observed that the first prima facie review of the petition
under subdivision (c) of section 1170.95 “must be something more than
simply determining whether the petition is facially sufficient; otherwise
given subdivision (b)(2), this portion of subdivision (c) would be
surplusage.” (Verdugo, supra, 44 Cal.App.5th at pp. 328-329.) But the
court noted that “the prebriefing determination whether the petitioner
has made a prima facie showing he or she ‘falls within the provisions of
this section’ must also be different from the postbriefing prima facie
showing the petitioner ‘is entitled to relief,’ required for issuance of an
order to show cause, if only in the nature and extent of materials
properly presented to the court in connection with the second prima
facie step, or else the two prima facie showings specified in subdivision
(c) would be redundant.” (Id. at p. 329.) The court concluded that “[t]he
midpoint between section 1170.95, subdivision (b)(2)’s initial finding the
petition is facially sufficient and subdivision (c)’s second prima facie
showing the petitioner is entitled to relief is a preliminary review of
statutory eligibility for resentencing, a concept that is a well-
established part of the resentencing process under Propositions 36 and
47. [Citations.] The court’s role at this stage is simply to decide
whether the petitioner is ineligible for relief as a matter of law, making
all factual inferences in favor of the petitioner.” (Ibid.)
Addressing the process by which the court is to conduct the first
review under section 1170.95, subdivision (c), the Verdugo court found
that “subdivisions (a) and (b) of section 1170.95 provide a clear
indication of the Legislature’s intent. As discussed, subdivision (b)(2)
directs the court in considering the facial sufficiency of the petition to

-- 9 of 13 --

10
access readily ascertainable information. The same material that may
be evaluated under subdivision (b)(2)—that is, documents in the court
file or otherwise part of the record of conviction that are readily
ascertainable—should similarly be available to the court in connection
with the first prima facie determination required by subdivision (c). . . .
Based on a threshold review of these documents, the court can dismiss
any petition filed by an individual who was not actually convicted of
first or second degree murder. 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 [S.B.] 1437’s amendments to
sections 188 and 189. . . . [¶] Because the court is only evaluating
whether there is a prima facie showing the petitioner falls within the
provisions of the statute, however, if the petitioner’s ineligibility for
resentencing under section 1170.95 is not established as a matter of law
by the record of conviction, the court must direct the prosecutor to file a
response to the petition, permit the petitioner (through appointed
counsel if requested) to file a reply and then determine, with the benefit
of the parties’ briefing and analysis, whether the petitioner has made a
prima facie showing he or she is entitled to relief.” (Verdugo, supra, 44
Cal.App.5th at pp. 329-330.)
With regard to the timing of the appointment of counsel for
defendant, the Verdugo court found that “[t]he structure and grammar
of [subdivision (c) of section 1170.95] indicate the Legislature intended
to create a chronological sequence: first, a prima facie showing [the
first sentence of the subdivision]; thereafter, appointment of counsel for

-- 10 of 13 --

11
petitioner [the second sentence]; then, briefing by the parties [the third
sentence].” (Verdugo, supra, 44 Cal.App.5th at p. 332.) The court noted
that it would not “make sense as a practical matter to appoint counsel
earlier in the process since counsel’s first task is to reply to the
prosecutor’s response to the petition. 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. 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 her client was ineligible for relief as a matter
of law.” (Id. at pp. 332-333.)
We agree with the Verdugo court’s analysis. Thus, we find the
trial court in this case did not violate section 1170.95 by conducting an
initial prima facie review before appointing counsel for defendant and
receiving briefing.
Nor did the trial court violate defendant’s federal constitutional
rights by conducting that review before appointing counsel. Defendant
contends the determination whether his petition states a prima facie
case for relief is a critical stage of the criminal proceeding, for which the
Sixth Amendment provides defendant the right to counsel.3 But as our
Supreme Court explained, proceedings under a statutory enactment
3 Defendant also contends the trial court’s failure to appoint him counsel
violated his federal due process rights because section 1170.95, subdivision
(c) grants him the right to the appointment of counsel when requested. But
as we discussed, the statute does not grant that right until after the trial
court makes its initial prima facie determination under that subdivision.

-- 11 of 13 --

12
that entitles an inmate to petition for resentencing to reduce, recall, or
vacate a sentence do not implicate the Sixth Amendment, because a
finding that the inmate is not eligible for resentencing “does not
increase the petitioner’s sentence; it simply leaves the original sentence
intact.” (People v. Perez (2018) 4 Cal.5th 1055, 1064; see also Dillon v.
United States (2010) 560 U.S. 817, 828-829.)
2. The Trial Court Correctly Found Defendant Was Ineligible as
a Matter of Law
Defendant argues that a prima facie case does not require proof of
the ultimate issue; it just requires allegations of facts that, if true,
would entitle him to relief. Therefore, he contends the trial court erred
in denying his petition because he made all the allegations required for
relief under section 1170.95. He is mistaken.
When making its initial prima facie determination under section
1170.95, subdivision (c), the trial court is not limited in its consideration
to the allegations of the petition, nor must it necessarily accept those
allegations as true. As the Verdugo court explained, section 1170.95
allows the trial court to consider readily available parts of the record of
conviction—such as jury instructions, verdict forms, and the appellate
court’s opinion affirming the conviction—to determine whether that
material “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 [S.B.] 1437’s amendments to sections 188 and 189.”
(Verdugo, supra, 44 Cal.App.5th at p. 330.)

-- 12 of 13 --

13
In this case, the record of conviction establishes as a matter of law
that defendant is ineligible for relief. As the trial court noted, our
opinion stated that defendant was the actual killer, not an accomplice:
“While intoxicated, defendant Perry Oakley drove an Acura sedan
through a stop sign and collided with a Toyota Camry, killing two of the
Camry’s passengers.” (Oakley I, supra, p. 2.) Also as noted in our prior
opinion, the jury found defendant guilty of second degree murder with
malice aforethought under an implied malice theory. (Id. at pp. 2, 6-8.)
The amendments S.B. 1437 made to sections 188 and 189 make clear
that it was not intended to change the law of murder as it applied to the
actual killer or to murder under an implied malice theory.4 Thus,
resentencing under 1170.95 was not available to defendant.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J. COLLINS, J.
4 S.B. 1437 did not remove the provision of section 188 stating that the
malice required for a finding of murder “may be express or implied” (§ 188,
subd. (a)), nor did it alter the definition of implied malice.

-- 13 of 13 --