P. v. Hampton

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Filed 4/29/21 P. v. Hampton CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
EDDIE LEE HAMPTON,
Defendant and Appellant.
E074416
(Super.Ct.No. FSB17394)
OPINION
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Affirmed.
Christopher Nalls, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Yvette
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Eddie Lee Hampton appeals from an order denying his
petition to vacate his murder conviction and obtain resentencing pursuant to Penal Code1
section 1170.95. Defendant argues the trial court erred in finding him ineligible for
resentencing and failing to issue an order to show cause because he had made a prima
facie showing entitling him to relief and the record does not conclusively show he was
the actual killer. We find that defendant was ineligible for relief as a matter of law, and
thus affirm the order of the trial court denying defendant relief under section 1170.95.
FACTUAL AND PROCEDURAL HISTORY
A. FACTUAL HISTORY2
Sheryl Hilt was codefendant Marlon Deshon Bayliss’s girlfriend. As of
November 22, 1996, they had lived together for six or seven months. On the evening of
November 22, 1996, she, Bayliss, defendant, Bayliss’s brother Tommy, and Mark Burley
were together at Hilt’s and Bayliss’s house. Sometime during the afternoon or evening,
Burley left.
At 10:00 or 11:00 p.m., Hilt overheard a conversation between Bayliss and
defendant; Tommy Bayliss was present with them, but Tommy did not appear to be
taking part in the discussion. Bayliss and defendant were talking about doing a “jack
move” (a robbery). They talked about using defendant’s car and robbing a bar.
1 All future statutory references are to the Penal Code unless otherwise stated.
2 A summary of the factual background is taken from this court’s nonpublished
opinion from defendant’s and codefendant’s prior appeal in case Nos. E023847/E023848,
which is part of the record on appeal. (People v. Bayliss & Hampton (June 14, 2000,
E023847/E023848) [nonpub. opn.] (Bayliss & Hampton).)

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At 2:00 or 3:00 a.m., on November 23, defendant and Bayliss left the house
together. Defendant carried a shotgun wrapped in a sheet. Hilt thought they left in
defendant’s car, because Tommy’s gray car was still parked outside the house.
Bayliss returned to the house around 4:00 or 5:00 a.m. As he got into bed, he told
Hilt that “something went wrong.”
On November 23, 1996, David Reno was staying at a house on Ninth Street in San
Bernardino. At approximately 3:00 a.m. on that date, he was outside smoking and saw a
dark-colored car making repeated turns and maneuvers up and down Ninth Street. After
one of the passes, the dark car turned in at an apartment building on Ninth Street. Soon
thereafter, Reno saw two African-American men walk by wearing dark clothing and knit
caps or beanies. One of the men carried a shotgun. Reno saw the men walking in the
direction of a nearby liquor store.
After five or 10 minutes, Reno heard gunshots. The gunshots sounded as if they
came from the liquor store. The same two men ran past Reno; one of them carried a
shotgun, but he could not tell if it was the same man who previously carried the shotgun.
Kenneth and Denyse Elder lived in a nearby apartment and heard gunshots around
3:00 a.m. Kenneth saw a car pull up to a dumpster, and a man exit the car and throw
something over a brick wall. He observed two African-American men, who looked like
defendant and Bayliss, walk toward the laundry room. Kenneth and Denyse, who also
saw the vehicle, thought it was a Mustang. Later that morning, the Elders looked into the
dumpster and found a blue Pendleton shirt, and on the other side of the brick wall, they

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found a revolver. Investigators found a knit cap and a baseball cap in the area. Hilt had
seen defendant wearing the blue Pendleton shirt on the night he planned the robbery. Hilt
also saw the baseball cap and knit cap in the house the night of the robbery, but the caps
were gone after defendant and Bayliss left. Hilt had seen other people wearing the caps
on prior occasions.
Around 3:30 a.m., the San Bernardino County Sheriff’s Department received a
silent alarm from the liquor store. Deputies responded to the scene and found the
proprietor lying on his back in a pool of blood. The victim was still moving but did not
respond to a deputy’s questioning. The victim later died at the hospital from gunshot
wounds. Nearly a dozen shotgun pellets inflicted wounds, mostly to the victim’s front
and right side; he had apparently been turning away from the blast. The pellets struck
many of the victim’s internal organs, including the liver, right kidney, intestines, and a
major blood vessel in his leg.
On the evening of November 23, 1996, an anonymous tipster called the sheriff’s
station and reported that two people, identified as “Ace” and “Tony” had been talking
about their involvement in the murder at the liquor store. After further investigation,
detectives learned that one of the men, “Ace,” was codefendant Bayliss. During the
course of the investigation, investigators also received information which led them to
discover a .22-caliber handgun wrapped in newspaper, and a knit cap in a plastic baggie,
buried behind Hilt’s and her sister’s residences, respectively.

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Two months later, on January 16, 1997, deputies arrested defendant and Bayliss.
Defendant lived near the liquor store, and the time of his arrest, was driving a black
Thunderbird.
Inside the liquor store, deputies recovered shells and pellets that indicated a
shotgun had been used in the killing. Other shotgun pellet strikes were found outside the
building. They found shoeprints and tire tracks in dirt nearby and took impressions of the
shoeprints and tire tracks. Plaster casts of the tire tracks matched the tires on defendant’s
black Thunderbird. The shoeprints matched a pair of shoes owned by Mark Burley.
David Reno identified defendant’s Thunderbird as the vehicle he had observed on the
morning of the incident.
Defendant presented an alibi defense. His wife testified that she had used the
family car, the black Thunderbird, to attend school on Friday evening, November 22, and
Saturday morning, November 23, 1996. She arrived home from school at 10:30 p.m. on
Friday, and soon afterward, she and defendant drove to defendant’s sister’s house, but the
sister was not home, so they returned home. After preparing their children for bed,
defendant’s wife asked him to go to his sister’s house again. Defendant returned home
before midnight, and they went to bed. The next morning, defendant’s wife drove the car
to school in Riverside.
Bayliss elected not to present an affirmative defense, though he did call some of
the prosecution witnesses and examined them for impeachment purposes.

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The trial court instructed the jury on three theories of murder⸺direct perpetrator,
natural and probable consequences of robbery or attempted robbery, and felony murder.
B. PROCEDURAL HISTORY
Defendant and Bayliss were each charged with one count of first degree murder
(§ 187). The information included allegations as to each defendant that he personally
used a shotgun in the commission of the offense (§ 12022.5, subd. (a)), and that a
principal was armed with a shotgun (§ 12022, subd. (a)(1)). The information further
alleged that each defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)). The information was amended as to defendant Bayliss to allege
an additional count that he was an accessory to murder (§ 32).
The trial court impaneled a separate jury for each defendant, and bifurcated trial
on the strike priors. Defendant’s jury found him guilty of murder in the first degree and
found true the allegations that he personally used a shotgun and that a principal was
armed with a shotgun. Bayliss’s jury found him guilty of first degree murder, and of
being an accessory to murder. Bayliss’s jury found true the allegation that a principal
was armed with a firearm in the commission of the murder. In a bifurcated court trial, the
court found true the strike prior allegations as to each defendant. Defendant was
sentenced to an indeterminate term of 50 years to life for the murder (25 years to life,
doubled due to the prior strike conviction), plus a determinate term of four years for the
personal use of a firearm enhancement. The court stayed the armed with the firearm
enhancement. Bayliss received a similar sentence.

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Both defendants subsequently appealed. This court rejected both defendants’
contentions and affirmed the judgment in a nonpublished opinion filed on June 14, 2000.
(Bayliss & Hampton, supra, E023847/E023848 at pp. 176, 205.)
On January 7, 2019, defendant filed a petition for writ of habeas corpus,
requesting relief pursuant to section 1170.95. Defendant alleged that his murder
conviction was “ ‘based on false testimony knowingly used by the court.’ ” The trial
court denied the petition for writ of habeas corpus because it failed to state a valid claim
for relief, and because section 1170.95 established a statutory mechanism for the
requested relief.
On April 17, 2019, defendant in propria persona filed a petition for resentencing
pursuant to section 1170.95.3 He requested that his murder conviction be vacated and
that he be resentenced because the record showed he and Bayliss were not the actual
killers. The petition further asserted that defendant and Bayliss were not at the scene of
the crime, and the prosecution failed to submit forensic evidence showing they aided and
abetted or conspired to kill the victim. Defendant also asserted the prosecution failed to
produce evidence that he and Bayliss planned the robbery or acted with reckless
indifference to human life.
On July 15, 2019, the trial court appointed counsel to represent defendant.
On July 25, 2019, the People filed a motion to strike the petition, contending
Senate Bill No. 1437 was unconstitutional. On August 30, 2019, at the request of the trial
3 Defendant also included codefendant Bayliss’s name in the petition.

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court, the People filed an informal response, arguing defendant failed to state a prima
facie case for relief because the record demonstrated that defendant was the actual killer.
Alternatively, the People asserted defendant was a major participant who acted with a
reckless indifference to human life. In support, the People attached a copy of this court’s
nonpublished opinion from defendant and codefendant Bayliss’s prior appeal to both the
motion to strike and the informal response.
On December 10, 2019, defendant filed a response contending that the facts
contained in this court’s opinion did not establish defendant was the actual killer.
Defendant’s response noted conflicting evidence on whether he aided and abetted the
robbery, in addition to a lack of facts supporting this court’s conclusion that defendant
carried a shotgun wrapped in a sheet.
A hearing on the petition was held on December 20, 2019. The trial court took
judicial notice of this court’s nonnpublished opinion from defendant and Bayliss’s prior
appeal and denied the petition. The court found the record of conviction proved
defendant was the actual killer and that defendant failed to state a prima facie case
pursuant to section 1170.95 for relief. The court explained, “Having read that, I don’t see
how we can come to any conclusion other than [defendant] was the actual killer. There
doesn’t seem to be any dispute about that; not withstanding what’s in this brief.”
On December 30, 2019, defendant filed a timely notice of appeal.

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DISCUSSION
Defendant contends he made a prima facie showing that he is entitled to relief
under section 1170.95, and therefore the trial court erred in summarily denying his
petition for resentencing without issuing an order to show cause. He also asserts that the
record of conviction does not conclusively show he was the actual killer, and the court
erred in making such a finding without an evidentiary hearing.
A. SENATE BILL NO. 1437 GENERALLY
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill
1437), effective January 1, 2019, considerably modified the law relating to accomplice
liability for murder. (People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile)
[discussing Senate Bill 1437].) The Legislature accomplished its goal by amending
sections 188 and 189. (Gentile, at pp. 842-843; People v. Martinez (2019) 31
Cal.App.5th 719, 722.) By amending sections 188 (defining malice) and 189 (defining
the degrees of murder), Senate Bill 1437 changed “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); see People v. Martinez,
at pp. 722-723.)
As relevant here, prior to Senate Bill 1437’s enactment, under the felony-murder
rule “a defendant who intended to commit a specified felony could be convicted of

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murder for a killing during the felony, or attempted felony, without further examination
of his or her mental state.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-248.)
Senate Bill 1437 amended the felony-murder rule by adding section 189, subdivision (e),
which provides that a participant in the perpetration of qualifying felonies is liable for
felony murder only if the person: (1) was the actual killer; (2) was not the actual killer
but, with the intent to kill, acted as a direct aider and abettor; or (3) the person was a
major participant in the underlying felony and acted with reckless indifference to human
life, as described in section 190.2, subdivision (d). (Gentile, supra, 10 Cal.5th at p. 842.)
It amended the natural and probable consequences doctrine by adding subdivision (a)(3)
to section 188, which states that “ ‘[m]alice shall not be imputed to a person based solely
on his or her participation in a crime.’ ” (Gentile, at p. 843.)
Senate Bill 1437 did not “alter the law regarding the criminal liability of direct
aiders and abettors of murder because such persons necessarily ‘know and share the
murderous intent of the actual perpetrator.’ ” (People v. Lewis (2020) 43 Cal.App.5th
1128, 1135 (Lewis), review granted Mar. 18, 2020, S260598.4) Accordingly, “[o]ne who
directly aids and abets another who commits murder is thus liable for murder under the
new law just as he or she was liable under the old law.” (Ibid.)
4 Under California Rules of Court, rule 8.1115, we may rely on appellate cases
while review is pending as persuasive authority. (Cal. Rules of Court, rule 8.1115(e)(1),
eff. July 1, 2016.)

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B. SECTION 1170.95 PETITIONING PROCEDURES
Senate Bill 1437 also added section 1170.95, which created a procedure whereby
persons convicted of murder under a now-invalid felony murder or natural and probable
consequences theory may petition for vacation of their convictions and resentencing. A
defendant is eligible for relief under section 1170.95 if he or she meets three conditions:
(1) he or she must have been charged with murder under a theory of felony murder or
murder under the natural and probable consequences doctrine, (2) must have been
convicted of first or second degree murder, and (3) could no longer be convicted of first
or second degree murder due to changes to sections 188 and 189 effectuated by Senate
Bill 1437. (§ 1170.95, subd. (a).) A person may be convicted of murder, even after the
2019 changes to sections 188 and 189, if he or she “was the actual killer.” (§ 189,
subd. (e)(1).)
As the court explained in People v. Verdugo (2020) 44 Cal.App.5th 320
(Verdugo), review granted March 18, 2020, S260493, section 1170.95 provides for
multiple reviews of a petition by the trial court, “one 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.” (Verdugo, at p. 328; accord, People v. Torres
(2020) 46 Cal.App.5th 1168, 1177 (Torres), review granted June 24, 2020, S262011;
People v. Soto (2020) 51 Cal.App.5th 1043, 1054 (Soto), review granted Sept. 23, 2020,

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S263939; People v. Drayton (2020) 47 Cal.App.5th 965, 975 (Drayton); People v.
Tarkington (2020) 49 Cal.App.5th 892, 897-898 (Tarkington), review granted Aug. 12,
2020, S263219; but see People v. Cooper (2020) 54 Cal.App.5th 106, 118, review
granted Nov. 10, 2020, S264684 [section 1170.95, subdivision (c), contemplates only one
prima facie review before an order to show cause issues].) In other words, evaluation of
a section 1170.95 petition requires a multi-step process: an initial review to determine
the petition’s facial sufficiency; a prebriefing, “ ‘first prima facie review’ ” to
preliminarily determine whether the petitioner is statutorily eligible for relief as a matter
of law; and a second, postbriefing prima facie review to determine whether the petitioner
has made a prima facie case that he or she is entitled to relief. (Tarkington, at p. 897;
Verdugo, at pp. 327-330.)
When conducting the first prima facie review, the trial court must determine,
based upon its review of readily ascertainable information in the record of conviction and
the court file, whether the petitioner is statutorily eligible for relief as a matter of law, i.e.,
whether he or she was convicted of a qualifying crime, based on a charging document
that permitted the prosecution to proceed under the natural and probable consequences
doctrine or a felony-murder theory. (Verdugo, supra, 44 Cal.App.5th at pp. 329-330.) If
it is clear from the record of conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may summarily deny the petition without appointing
counsel. (Torres, supra, 46 Cal.App.5th at pp. 1173; Verdugo, at pp. 332-333; Lewis,
supra, 43 Cal.App.5th at pp. 1139-1140.)

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A Court of Appeal opinion is part of the petitioner’s record of conviction
(Verdugo, supra, 44 Cal.App.5th at p. 333; People v. Bascomb (2020) 55 Cal.App.5th
1077, 1080-1081, 1086), as are jury instructions (Soto, supra, 51 Cal.App.5th at p. 1055).
Courts of Appeal, including this court, have rejected the argument that a trial court is
limited to the allegations in the petition when determining whether the petitioner has
stated a prima facie claim for relief under section 1170.95. (Lewis, supra, 43 Cal.App.5th
at pp. 1137-1138; Verdugo, supra, 44 Cal.App.5th at pp. 329-330; People v. Law (2020)
48 Cal.App.5th 811, 820-821, review granted July 8, 2020, S262490; People v. Palacios
(2020) 58 Cal.App.5th 845, review granted Feb. 24, 2021, S266701.)
If, however, the petitioner’s eligibility is not established as a matter of law, the
court must appoint counsel and permit briefing to determine 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; Tarkington, supra, 49 Cal.App.5th at p. 898.) If the petitioner
makes a showing entitling him or her to relief, the trial court must issue an order to show
cause and conduct a hearing to determine whether to vacate the murder conviction and
resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d); People v.
Nguyen (2020) 53 Cal.App.5th 1154, 1165-1166; Verdugo, supra, 44 Cal.App.5th at
p. 327.) At that hearing, the prosecution has the burden to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3); People
v. Rodriguez (2020) 58 Cal.App.5th 227, 230, review granted Mar. 10, 2021, S266652.)

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The prosecutor and petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens. (§ 1170.95, subd. (d)(3).)
C. ANALYSIS
Defendant contends the trial court erred in denying his petition for resentencing
and failing to issue an order to show cause because (1) he had made a prima facie case
entitling him to relief; (2) the record does not conclusively show he was the “ ‘actual
killer’ ” and the court erred in making such a finding without an evidentiary hearing;
(3) the jury’s finding that he personally used a firearm does not necessarily mean he fired
the shot that killed the victim; (4) the jury did not find that he was the actual killer; and
(5) the determination of whether he was a major participant who acted with reckless
indifference can only be determined after an order to show cause. We reject these
contentions because the record of conviction establishes, as a matter of law, that
defendant is not eligible for relief.
As previously explained, to be eligible for resentencing, defendant was required to
show that he “could not be convicted of first or second degree murder because of changes
to Section 188 or 189” made by Senate Bill 1437. (§ 1170.95, subd. (a)(3).) Under
section 189, as amended, a defendant can be convicted of felony murder if he was the
actual killer; acted as a direct aider and abettor with the intent to kill; or was a major
participant in the underlying felony and acted with reckless indifference to human life.
(§ 189, subd. (e); People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted
Nov. 18, 2020, S264978.)

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Here, defendant cannot show that he “could not be convicted of first or second
degree murder because of changes to Section 188 or 189” made by Senate Bill 1437.
(§ 1170.95, subd. (a)(3).) Defendant was tried under three theories of murder⸺as a
direct perpetrator, under the natural and probable consequences doctrine of robbery or
attempted robbery, and under the felony-murder rule. Contrary to defendant’s claim, the
record establishes that defendant was the actual killer.
Defendant’s jury specifically found that he personally used a shotgun in the
commission of the murder. Defendant was seen carrying a shotgun prior to the murder.
The shotgun was found to be the murder weapon, despite evidence showing other
firearms were found during the investigation. Specifically, nearly a dozen shotgun pellets
inflicted fatal wounds to the victim, and our nonpublished opinion from defendant’s
direct appeal expressly determined, “The liquor store owner in fact died from a shotgun
blast.” Furthermore, defendant agreed that the shotgun was the murder weapon. In his
response to the People’s opposition to his petition for resentencing, defendant stated:
“[The victim] died of shotgun wounds. Shotgun pellets and strikes were found inside and
outside the store.” As such, we reject defendant’s contention that there were three
firearms involved in the crime.
Moreover, Bayliss’s jury convicted him of first degree murder, of being an
accessory to murder, and found true the allegation that a principal was armed with a
firearm in the commission of the murder. Bayliss’s jury did not find that Bayliss
personally used the shotgun, even though he was also charged with the personal use of a

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firearm. It was unquestionable that the shotgun was the murder weapon, and the jury
found it was defendant who used the shotgun in the commission of the murder. Since the
victim died of gunshot wounds from a shotgun, and there was evidence of only the
shotgun being used to commit the murder, the jury necessarily found defendant was the
actual killer. The trial court therefore correctly determined that the record demonstrated
defendant was the actual killer. Accordingly, as a matter of law, defendant was not
eligible for resentencing under section 1170.95. (§ 189, subd. (e)(1).) Defendant’s
attempts to argue to the contrary and interpret the facts in his favor are unavailing.
Senate Bill 1437 did not change the felony-murder rule as it applies to the actual
killer. In addition, while the amendment to section 188 effectively eliminated use of the
natural and probable consequences doctrine to support a murder conviction, the change
did not “alter the law regarding the criminal liability of direct aiders and abettors of
murder because such persons necessarily ‘know and share the murderous intent of the
actual perpetrator.’ [Citations.]” (Lewis, supra, 43 Cal.App.5th at p. 1135, citing People
v. McCoy (2001) 25 Cal.4th 1111, 1118.) “One who directly aids and abets another who
commits murder is thus liable for murder under the new law just as he or she was liable
under the old law.” (Lewis, at p. 1135.) Defendant was required to make a prima facie
showing that he was not convicted as a direct aider and abettor, and thereby “ ‘falls
within the provisions of’ the statute.” (Id. at p. 1137; § 1170.95, subd. (a)(3) & (c).) He
failed to do so. The trial court therefore properly denied the petition on the basis of its

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finding that defendant had not established a prima facie case for relief by relying on this
court’s prior opinion in defendant’s direct appeal.
Relying on Drayton, supra, 47 Cal.App.5th 965, defendant argues that the trial
court should have issued an order to show cause because nothing in the record plainly
contradicts his prima facie case. Defendant’s reliance on Drayton is misplaced.
The Court of Appeal in Drayton explained that in assessing whether a petitioner
has shown a prima facie case under section 1170.95, subdivision (c), “the trial court
should assume all facts stated in the section 1170.95 petition are true.” (Drayton, supra,
47 Cal.App.5th at p. 980.) The court “should not evaluate the credibility of the petition’s
assertions, but it need not credit factual assertions that are untrue as a matter of law . . . .”
(Id. at p. 980.) Moreover, “if the record ‘contain[s] facts refuting the allegations made in
the petition . . . the court is justified in making a credibility determination adverse to the
petitioner.’ [Citation.] However, this authority to make determinations without
conducting an evidentiary hearing pursuant to section 1170.95, subd[ivision] (d) is
limited to readily ascertainable facts from the record (such as the crime of conviction),
rather than factfinding involving the weighing of evidence or the exercise of discretion
(such as determining whether the petitioner showed reckless indifference to human life in
the commission of the crime).” (Drayton, at p. 980.)
Drayton is distinguishable from the present matter. First, there was no dispute that
the defendant in Drayton was not the actual killer and did not intend to kill. (Drayton,
supra, 47 Cal.App.5th at p. 973.) Second, unlike in Drayton, the trial court here did not

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engage in factfinding and defendant asserted no facts in his petition or declaration which,
if true, would show he was not a major participant or acted with reckless indifference.
Moreover, in Drayton, the appellate court expressly declined to render any opinion
regarding the holdings in Verdugo and Lewis, 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 the
defendant had made a prima facie showing of eligibility. (Drayton, supra, 47
Cal.App.5th at p. 976, fn. 6.) Nevertheless, as noted, 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. (Drayton, at p. 980.)
In addition, People v. Garcia (2020) 57 Cal.App.5th 100 (Garcia), review granted
February 10, 2021, S265692, rejected Drayton and held that a trial court could summarily
reject a petition without a hearing at the prima facie stage based on its assessment of the
facts set forth in an earlier opinion affirming the conviction. (Id. at pp. 105-106, 111-
113, 116.) In that case, the opinion on direct appeal made clear that Garcia had urged the
actual killer to “ ‘[s]tick [Mosqueda]. Stick him,’ ” while the killer, other fellow gang
members, and Garcia were all assaulting Mosqueda pursuant to a pre-approved, “ ‘green-
lighted’ ” attack. (Id. at p. 116.) Garcia construed its earlier opinion to find that “it
[wa]s reasonable to infer that [defend]ant intended to kill [the victim] when he directed

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[the killer] to stab the victim,” and held that the petition was properly denied at the prima
facie review stage because “substantial evidence support[ed] a murder conviction based
on a direct aiding and abetting theory.” (Id. at pp. 116, 118.)5 The court stated that its
application of the substantial evidence test at the prima facie stage was “supported by
People v. Duke (2020) 55 Cal.App.5th 113,” although it recognized that Duke
“considered the nature of the prosecution’s burden at the evidentiary hearing conducted
after the petitioner has made a prima facie showing of eligibility for relief under
section 1170.95.” (Garcia, at pp. 115-116.)
The Court of Appeal in Garcia concluded: “In determining whether a petitioner
has made a prima facie showing of entitlement to relief under section 1170.95, the courts
should not ignore the evidence in the record of conviction that shows the petitioner is
ineligible for relief. Where, as here, the record of conviction contains substantial
evidence based on which a reasonable trier of fact could presently find petitioner guilty of
murder despite the changes made by Senate Bill 1437, it would be a waste of judicial
resources to require a full-blown evidentiary hearing at which the court may rely on the
record of conviction. (§ 1170.95, subd. (d)(3).) Accordingly, the trial court did not err in
refusing to issue an order to show cause and conduct an evidentiary hearing.” (Garcia,
supra, 57 Cal.App.5th at p. 118.)
5 The court also found that the record supported an inference that Garcia could
have been convicted under an implied malice theory, based on his “ ‘[s]tick him’ ”
statement during his willful participation in a coordinated gang assault, which
demonstrated Garcia’s conscious disregard of the fact that the natural and probable
consequences of his acts were dangerous to human life. (Garcia, supra, 57 Cal.App.5th
at pp. 116-118.)

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Based on the foregoing, we reject defendant’s claim that the trial court erred in
failing to issue an order to show cause. In sum, the allegations in the petition that
defendant cannot now be convicted of murder because of changes made to sections 188
and 189 are contradicted by the record of conviction. Because the record of conviction
plainly shows that defendant does not fall within the provisions of the statute, he did not
make the first prima facie showing required under section 1170.95, subdivision (c).
Defendant is thus ineligible for relief as a matter of law, and the trial court properly
denied his petition. (§ 1170.95, subd. (c).)
DISPOSITION
The trial court’s postjudgment order denying defendant Hampton’s
section 1170.95 resentencing petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J.
We concur:
SLOUGH
J.
RAPHAEL
J.

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