P. v. Ezell

Filed 7/20/20 P. v. Ezell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
LEE FARRIS EZELL, JR.,
Defendant and Appellant.
B299601
(Los Angeles County
Super. Ct. No. PA040672)
APPEAL from a judgment of the Superior Court for Los Angeles
County, Michael Terrell, Judge. Affirmed.
Christopher Love, 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, Kristen Inberg and David A. Wildman, Deputy Attorneys
General, for Plaintiff and Respondent.

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Defendant Lee Farris Ezell, Jr., who was convicted of first degree
murder, appeals from the denial of his petition for resentencing under
Penal Code1 section 1170.95. Without appointing counsel for defendant
and without defendant present (but after having received briefing from
the prosecutor, and with the prosecutor present), the trial court denied
the petition on the ground that defendant was not eligible for
resentencing as a matter of law. Defendant contends the trial court
erred by finding he had not made a prima facie showing under section
1170.95 and that the court violated his state and federal constitutional
right to the assistance of counsel by denying his petition without
appointing counsel for him and without giving that counsel an
opportunity to file additional briefing. We conclude there was no error
or constitutional violation, and affirm the judgment.
BACKGROUND
Our summary of the background regarding the murder and
defendant’s conviction is based upon our opinion affirming defendant’s
conviction, People v. Ezell [nonpub. opn., filed July 24, 2003], case No.
B163761, 2003 Cal.App.Unpub.LEXIS 7145 (Ezell I).
A. The Murder and Conviction
Marcario Alcorn, a member of the Whitsett Avenue Crips, was
attending a party on February 10, 2002, at a house in territory claimed
by a rival Blood gang. Sodany Seng, a 16-year-old young woman also
1 Further undesignated statutory references are to the Penal Code.

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was at the party. (Ezell I, supra, 2003 Cal.App.Unpub.LEXIS 7145, at
p. *2.) Defendant, who was associated with the Pacoima Piru Blood
gang, came to pick Seng up from the party; he was in a car owned and
driven by Jamar Price. (Ezell I, supra, 2003 Cal.App.Unpub.LEXIS
7145, at p. *2.)
Alcorn and Seng walked up to the car. According to Seng, Alcorn
and defendant (who had attended the same high school) conversed
calmly. Seng heard defendant say something about Alcorn not
remembering him, and Alcorn responding, “I know, dude. I know,
dude”; Alcorn then walked away. (Ezell I, supra, 2003
Cal.App.Unpub.LEXIS 7145, at pp. *2-*3.) Seng noticed that defendant
had a gun on his lap, and asked, “What the hell you brought that for?”
(Ezell I, supra, 2003 Cal.App.Unpub.LEXIS 7145, at p. *2.)
Seng talked to defendant about picking up her friend and going to
a club. She went back into the house to get her shoes and call her
friend. (Ezell I, supra, 2003 Cal.App.Unpub.LEXIS 7145, at p. *3.) She
came back out around 10 minutes later. Alcorn’s car, which had been
parked in front of Price’s car, was gone. Defendant told her that he had
“some business to take care of” and would talk to her later, then he and
Price drove off. (Ezell I, supra, 2003 Cal.App.Unpub.LEXIS 7145, at p.
*3.)
A short time later, some guests left the party. As they were
driving away, they saw Alcorn’s car crashed into a nearby fence. There
were several bullet holes in the car, and the driver’s side window was
shattered. Alcorn had been shot in the head and the back of his

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shoulder; he died from those wounds. (Ezell I, supra, 2003
Cal.App.Unpub.LEXIS 7145, at p. *3.) The gun used to shoot Alcorn,
which Seng identified as the one she had seen in defendant’s lap, was
found hidden in a bush behind Price’s home. (Ezell I, supra, 2003
Cal.App.Unpub.LEXIS 7145, at p. *3.)
Defendant was arrested, and ultimately told police that he had
shot Alcorn after Alcorn threatened to kill defendant and Price;
defendant said that Alcorn pointed a gun at them. (Ezell I, supra, 2003
Cal.App.Unpub.LEXIS 7145, at p. *4.) Defendant was charged with one
count of murder, with allegations that the murder was committed to
benefit a gang (§ 186.22, subd. (b)(1)) and that defendant personally
used a firearm (§ 12022.53). A jury found defendant guilty of first
degree murder, and found the allegations to be true. The trial court
sentenced defendant to a term of 60 years to life in prison. (Ezell I,
supra, 2003 Cal.App.Unpub.LEXIS 7145, at p. *4.)
B. The Appeal From the Conviction
In his appeal from the judgment, defendant raised two issues, one
of which is relevant to this appeal. That argument was premised on
defendant’s assertion that he was convicted under a felony murder
theory because he was found guilty of first degree murder under section
189. In rejecting his argument, we observed that section 189 sets forth
three categories of first degree murder: “‘Section 189 . . . first
establishes a category of first degree murder consisting of various types
of premeditated killings, and specifies certain circumstances . . . which
are deemed the equivalent of premeditation. Section 189 secondly

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establishes a category of first degree murders [consisting of] murders
perpetrated during felonies or attempted felonies . . . . Finally, section
189 establishes a third category consisting of only one item, intentional
murder by shooting out of a vehicle with intent to kill.’” (Ezell I, supra,
2003 Cal.App.Unpub.LEXIS 7145, at pp. *5-*6, quoting People v.
Rodriguez (1998) 66 Cal.App.4th 157, 163-164.)
We observed that “[o]nly two of these theories—drive-by shooting
and premeditated murder—were presented to the jury in our case. . . .
[¶] The prosecutor never argued that a drive-by shooting was first
degree felony murder. He did argue that if the jury did not find that
[defendant] committed the crime during a drive-by, and did not
premeditate and deliberate, then it could find him guilty of second
degree murder. He then explained that the easiest theory under second
degree murder would be second degree felony murder, based on
shooting into an occupied motor vehicle and killing a person.” (Ezell I,
supra, 2003 Cal.App.Unpub.LEXIS 7145, at pp. *6-*7.)
We also noted that the jury instructions were free of “any
implication that the first degree murder theory based on a drive-by
shooting was felony murder.” (Ezell I, supra, 2003
Cal.App.Unpub.LEXIS 7145, at p. *8.) Instead, “[t]he jury was
instructed that murder is divided into two degrees, and was given two
theories of first degree murder: deliberate and premeditated killing,
and drive-by shooting—murder which is perpetrated by means of
discharging a firearm from a motor vehicle intentionally at another
person outside the vehicle when the perpetrator specifically intended to

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inflict death.” (Ezell I, supra, 2003 Cal.App.Unpub.LEXIS 7145, at p.
*8.)
We affirmed the conviction. (Ezell I, supra, 2003
Cal.App.Unpub.LEXIS 7145, at p. *14.)
C. The Petition for Resentencing
On February 28, 2019, 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 conviction was based
upon the felony murder rule or the natural and probable consequences
doctrine, that he could not now be convicted of murder 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 prosecutor filed an opposition to defendant’s petition on April
12, 2019. Most of that opposition consisted of arguments (and
documents supporting those arguments) as to why section 1170.95 is
unconstitutional. The opposition also included a page and a half of
argument regarding the inapplicability of section 1170.95 to defendant’s
conviction: it argued that defendant was not eligible for resentencing
because he was not convicted under a felony murder theory or the
natural and probable consequences doctrine, and because he was the
actual killer. The prosecution attached our decision in Ezell I in
support of those arguments.
On April 22, 2019, the trial court called the matter as a non-
appearance matter. Neither defendant nor counsel was present;

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although the prosecutor was present, she did not argue. The court
stated it had reviewed the petition and the opposition, and that it was
not going to grant a hearing “because it’s clear to the court that the
defendant has failed to state a prima facie case.” The court noted that
defendant was the actual killer and was not convicted under a felony
murder theory. Therefore, the court found he is ineligible for
resentencing as a matter of law. Defendant timely appealed from the
order denying his petition.
DISCUSSION
A. Amendment of the Felony Murder Rule
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
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.

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1015, § 2.) S.B. 1437 also added the following as subdivision (e) of
section 189: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a)2 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
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
2 Subdivision (a) of section 189 provides: “All murder that is perpetrated
by means of a destructive device or explosive, a weapon of mass destruction,
knowing use of ammunition designed primarily to penetrate metal or armor,
poison, lying in wait, torture, or by any other kind of willful, deliberate, and
premeditated killing, or that is committed in the perpetration of, or attempt
to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem,
kidnapping, train wrecking, or any act punishable under Section 206, 286,
287, 288, or 289, or former Section 288a, or murder that is perpetrated by
means of discharging a firearm from a motor vehicle, intentionally at another
person outside of the vehicle with the intent to inflict death, is murder of the
first degree.”

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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
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

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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 that his petition made a prima facie showing
that he is entitled to relief, and that the trial court’s summary denial of
the petition violated his federal and state constitutional right to the
assistance of counsel. We conclude the trial court correctly found that
defendant is not eligible for relief as a matter of law. We also find there
was no violation of defendant’s constitutional rights, but even if there
was, any such error was harmless.
1. Defendant Failed to Make a Prima Facie Showing That He Is
Entitled to Relief
Citing In re Taylor (2019) 34 Cal.App.5th 543 (Taylor), defendant
contends that his declaration—stating that all three requirements set
forth in section 1170.95, subdivision (a), were met—establishes a prima
facie showing that he falls within the provisions of the statute, and
therefore he was entitled to appointed counsel. We disagree.
The issue of what a trial court may consider in determining
whether a defendant has made a prima facie showing of eligibility for
resentencing has been addressed by several courts and is currently

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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,
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

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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.)
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

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indication of the Legislature’s intent. As discussed, subdivision (b)(2)
directs the court in considering the facial sufficiency of the petition to
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

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to create a chronological sequence: first, a prima facie showing [the
first sentence of the subdivision]; thereafter, appointment of counsel for
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. Defendant argues in
his appellant’s reply brief, however, that two subsequent decisions from
other appellate courts (People v. Torres (2020) 46 Cal.App.5th 1168 (rev.
granted, S262011, June 24, 2020) (Torres) and People v. Drayton (2020)
47 Cal.App.5th 965 (Drayton))—as well as Taylor, the case defendant
relied upon in his opening brief—“contradict the holdings” of Verdugo,
Lewis, and Cornelius. We see no such contradiction.
For example, Taylor did not involve a section 1170.95 petition; it
involved a petition for writ of habeas corpus seeking to have a special
circumstances finding vacated. (Taylor, supra, 34 Cal.App.5th at p.
546.) Indeed, Taylor’s habeas petition was filed before S.B. 1437 took
effect. (Id. at p. 562.) In addressing Taylor’s request that the court

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vacate his felony murder conviction under S.B. 1437, the court gave a
very short summary of section 1170.95, describing subdivision (c) in a
single sentence: “Upon receiving a petition that is supported by the
petitioner’s declaration that all three conditions are met and that
makes a ‘prima facie showing that the petitioner falls within the
provisions of [section 1170.95],’ the sentencing court must issue an
order to show cause.” (Taylor, supra, 34 Cal.App.5th at p. 562.)
However, the court declined to rule on Taylor’s request, and therefore—
unlike the Verdugo court—had no cause to examine the appropriate
procedure for ruling on a section 1170.95 petition.
In Drayton, the appellate court expressly declined to render any
opinion regarding the holdings in Verdugo, Lewis, and Cornelius that
the trial court may substantively review documents from the record of
conviction when assessing the petition’s prima facie showing of
eligibility, because there was no dispute in the case before it that
Drayton made a prima facie showing of eligibility. (Drayton, supra, 47
Cal.App.5th at p. 976, fn. 6.) Nevertheless, the court held that when
assessing a defendant’s prima facie showing in a section 1170.95
petition, the trial court “need not credit factual assertions that are
untrue as a matter of law,” and it can determine without a hearing that
the defendant is not eligible for resentencing so long as that
determination is based upon readily ascertainable facts from the record.
(Id. at p. 980.) In the case before it, however, the appellate court found
no such determination was possible because there had been no prior
finding by a factfinder or admission by Drayton that he had been a

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major participant in the underlying felony who acted with reckless
indifference to human life. (Id. at pp. 981-982.)
Finally, in Torres, the appellate court expressly agreed with the
Verdugo court’s analysis and rejected Torres’s argument that his
submission of a facially sufficient petition entitled him to appointment
of counsel and briefing. (Torres, supra, 46 Cal.App.5th at p. 1177.)
However, the court held that trial court erred in summarily ruling,
based upon the jury’s special circumstances findings, that Torres failed
to make a prima facie showing because “the jury’s findings alone do not
render Torres ineligible for relief.” (Id. at p. 1178.) This holding is
consistent with the Verdugo court’s holding that “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 p. 330.)
Defendant contends that, as in Torres and Drayton, the record
here does not show that he is ineligible for resentencing under section
1170.95. He argues there was no forensic evidence showing that he
(rather than Price, the driver of the car he was in) fired the fatal shot,
the evidence of his confession does not conclusively prove that he was
the actual killer, the record before the trial court did not include the
abstract of judgment or the trial court’s minutes showing which

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subdivision of section 12022.53 the jury found to be true (i.e., whether it
found that he personally discharged a firearm causing death), and it is
possible he was convicted as an aider and abettor. What defendant
ignores is that section 1170.95 provides for resentencing only for “[a]
person convicted of felony murder or murder under a natural and
probable consequences theory” (§ 1170.95, subd. (a)), and in our decision
affirming his first degree murder conviction we held that defendant was
not convicted under a felony murder theory but was instead convicted
under a premeditated murder or a drive-by shooting (i.e., intentional
murder by shooting out of vehicle with the intent to kill) theory.
Therefore, the trial court in this case correctly found that defendant is
ineligible for resentencing under section 1170.95 as a matter of law.
2. Asserted Constitutional Error
Defendant asserts the trial court’s summary denial of his petition
without appointing him counsel violated his federal and state
constitutional right to the assistance of counsel. He is mistaken.
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 to the United States Constitution and
article I, section 15 of the California Constitution guarantee defendant
the right to counsel. But as our Supreme Court explained, proceedings
under a statutory enactment 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

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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.)
For the same reason, 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 criminal defendant who has been
convicted and sentenced, in which the 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 an
“accused” to potential substantial prejudice to his or her rights. Thus,
the summary denial of a section 1170.95 without the appointment of
counsel does not violate the California Constitution.
3. Other Arguments
Defendant makes two additional arguments that can be addressed
briefly. First, defendant argues he had a statutory right to file a reply
brief after the prosecutor filed an opposition to his petition. Second, he
contends, in effect, that the trial court erred by allowing the prosecutor
to file an opposition to his petition and by holding a hearing at which

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only the prosecutor was present. Even if we were to assume error with
regard to either argument, any such error was harmless under any
standard because our opinion in Ezell I establishes that defendant was
not convicted under a felony murder theory, and thus he is ineligible for
resentencing under section 1170.95 as a matter of law.
DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.

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