P. v. Matthews

Filed 7/23/20 P. v. Matthews CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
DONALD MATTHEWS,
Defendant and Appellant.
B299219
(Los Angeles County
Super. Ct. No. A367138)
APPEAL from an order of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Derek K. Kowata, 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, David E. Madeo and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
____________________________

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In 1981, petitioner and appellant Donald Matthews pleaded
guilty to one count of murder, and the trial court sentenced him
to 15 years to life. In 2019, petitioner filed a petition for
resentencing pursuant to Penal Code section 1170.95 (section
1170.95), which allows a petitioner to obtain retroactive relief
based on recent changes in the murder law. Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015), effective January
1, 2019, “ ‘amend[ed] 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).)” (People v. Verdugo (2020) 44 Cal.App.5th 320, 325
(Verdugo), review granted Mar. 18, 2020, S260493.)
“Prior to the enactment of Senate Bill No. 1437 . . . both the
felony murder rule and the natural and probable consequences
doctrine provided theories under which a defendant could be
found guilty of murder without proof of malice.” (People v. Lee
(2020) 49 Cal.App.5th 254, 260 (Lee), review granted July 15,
2020, S262459.) The law with respect to murder did not change
as it applies to a defendant who directly aided and abetted a
murder. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1135
(Lewis), review granted Mar. 18, 2020, S260598; Pen. Code,
§ 189, subd. (a)(2).)
Relying on the plea colloquy and petitioner’s admissions
recounted at the preliminary hearing, the trial court concluded
that petitioner failed to establish a prima facie case of eligibility
for resentencing under section 1170.95. Petitioner does not
dispute that taken together, the plea colloquy and preliminary

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hearing testimony show that he directly aided and abetted the
murder. Instead, petitioner argues that the trial court erred in
considering any testimony including petitioner’s admissions
recounted at the preliminary hearing. Pending guidance from
our high court, we adhere to Lewis, supra, 43 Cal.App.5th 1128,
review granted, under which the trial court properly considered
both petitioner’s plea and petitioner’s admissions as recounted at
the preliminary hearing. (See also Lee, supra, 49 Cal.App.5th at
p. 263, review granted [following Lewis]; Verdugo, supra,
44 Cal.App.5th at p. 323, review granted [trial court may
consider record of conviction in evaluating petition for
resentencing under section 1170.95].)
We affirm the trial court’s order denying petitioner’s
petition for resentencing.
BACKGROUND
Our record does not include the information or abstract of
judgment.
1. Preliminary Hearing
Counsel represented petitioner at a preliminary hearing in
April 1981. Police Officer William Holcomb testified that he
interviewed petitioner in Louisiana. Petitioner told Holcomb that
a month earlier on March 16, petitioner observed two of his
friends, whose monikers were Snipper and Mugga, with a
.12 gauge shotgun. When Mugga told petitioner that they were
going to “bust on some Six-Deuces,” petitioner volunteered to
drive them. Petitioner “then stated that himself along with
several of his friends entered a car that he had stolen the day
prior and drove around the area of 60th and San Pedro looking
for some Six-Deuces to shoot.” When his friends exited the car to

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shoot the Six-Deuces, petitioner “remained at the location with
the doors open and the engine running . . . so that they could
make a fast getaway.” After the shooting, petitioner drove his
friends home.
2. Plea and Sentence
Petitioner pleaded guilty to murder in violation of Penal
Code section 187. Defense counsel and the prosecutor stipulated
that the murder was in the second degree. At the plea hearing,
petitioner described the murder as follows: Knowing their
purpose to shoot Andre Purnell, petitioner drove Robin and
Donnie Henning to Purnell. Petitioner “drove the car with that
in mind,” that being “their purpose in going over to shoot Andre
Purnell.” Petitioner knew that the Hennings had a shotgun in
the car with them. Petitioner waited in the car during the
shooting and then drove away.
At the hearing in which petitioner pleaded guilty, defense
counsel stated: “He’s 19. But he was not the shooter, and he
openly admits it. He admitted it to the officers when they picked
him up in Louisiana. He’s been no problem. He’s admitted it at
all times.”
After the Youth Authority denied him admission, the
trial court sentenced petitioner to 15 years to life.
3. Petition for Resentencing
On April 17, 2019, petitioner filed a petition for
resentencing pursuant to section 1170.95. In his petition,
petitioner described his offense as follows: “On March 16, 1981,
gang members of the Six Deuce Crips were at the corner of 61st
Street and San Pedro Avenue. Rival gang members of the Five
Deuce Crips drove by that corner and parked nearby. The

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Hennings and Jessie Owens got out of the car driven by 19-year
old Petitioner who remained in the car as the getaway driver.”
Petitioner’s confederates killed one person and seriously wounded
another.
Petitioner attached his declaration stating that an
information was filed against him that allowed the prosecution to
proceed under the felony murder rule or the natural and probable
consequences doctrine. Petitioner stated, “I did not, 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.” Petitioner declared
that he was eligible for resentencing. Petitioner requested the
appointment of counsel.
4. The Trial Court Denied the Petition for Resentencing
After reviewing the preliminary hearing transcript and
plea colloquy, the trial court concluded that petitioner was not
eligible for relief under section 1170.95. The trial court denied
the petition without appointing counsel or holding a hearing.
The court relied on petitioner’s admissions as recounted at the
preliminary hearing. The court also relied on petitioner’s
statements during the plea colloquy. The court explained:
“Based on the record of conviction, there is no evidence of a
natural and probable consequence theory. By his own admission,
petitioner acted with express malice.[1] As such, he is not eligible
for Penal Code section 1170.95 relief.”
1 Express malice requires an intent to kill. (People v. Soto
(2018) 4 Cal.5th 968, 970.)

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DISCUSSION
Senate Bill 1437 made statutory changes that no longer
permit a defendant to be convicted of murder without proof of
malice. (Lee, supra, 49 Cal.App.5th at p. 260, review granted.)
The legislation also established a procedure codified in
section 1170.95 that permits a defendant who has sustained a
murder conviction that arguably rests on a felony murder or a
natural and probable consequences theory of liability to petition
the sentencing court to vacate the murder conviction if
inconsistent with the now-governing law. (Section 1170.95;
see also Lee, supra, at p. 257.) The procedure, codified in
section 1170.95, allows persons convicted of felony murder or
murder under a natural and probable consequences theory to file
a petition to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts. (People v. Turner
(2020) 45 Cal.App.5th 428, 433–434; People v. Medrano (2019)
42 Cal.App.5th 1001, 1016, review granted Mar. 11, 2020,
S259948.)
A person is eligible for relief under section 1170.95 only if
the following conditions are established: “(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 or accepted a plea offer in
lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder[;] [¶] [and] (3) The petitioner
could not be convicted of first or second degree murder because of
changes to [Penal Code] Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(1)–(3).) Those changes

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affected the mental state requirement for murder under the
felony murder rule and the natural and probable consequences
doctrine. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 262.)
Section 1170.95 sets forth the first step in determining
eligibility 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[’s] 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).) Thus, under the
statute, if the petitioner made a prima facie showing of eligibility,
the trial court shall issue an order to show cause. The statute
describes additional steps, irrelevant to the current appeal, if the
petitioner sets forth a prima facie case.
A petitioner is ineligible for relief under section 1170.95 as
a matter of law if the petitioner “was convicted on a ground that
remains valid notwithstanding Senate Bill [No.] 1437’s
amendments to [Penal Code] sections 188 and 189.” (Verdugo,
supra, 44 Cal.App.5th at p. 330, review granted.) Consistent with
these principles, it is undisputed that if as a matter of law,
petitioner directly aided and abetted the murder of Purnell,
petitioner would not be entitled to resentencing under section
1170.95. Petitioner does not dispute that a trial court may
dismiss a resentencing petition “if the court is aware of facts that
indisputably refute the allegations of eligibility in the petition.”

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Petitioner points out that “the superior court may also dismiss
the petition at this stage if the court is aware of facts in the
record of conviction that indisputably show the petitioner is
ineligible for relief as a matter of law.”
Instead, petitioner argues: “Here, the superior court erred
because . . . there was no record of conviction which indisputably
showed appellant was ineligible for relief.” Petitioner contends
that the plea colloquy was insufficient to demonstrate
ineligibility as a matter of law because “[t]here was no admission
by appellant that he knew ‘Termite,’ the victim of the murder was
going to be shot or even present.” Petitioner argues the trial
court could not rely on the preliminary hearing transcript to
supply this information because it was not part of petitioner’s
plea and was not part of the record of conviction. Petitioner’s
arguments are unpersuasive.
A. Petitioner’s Admissions at the Plea Hearing
Indicated He Was Ineligible for Resentencing
At the plea hearing, petitioner admitted directly aiding and
abetting the murder. He explained that he drove his friends to
the scene of the shooting knowing that they would shoot Andre
Purnell, the victim. Petitioner waited for his friends during the
shooting and then drove away. Petitioner answered the following
question affirmatively: “Did you know their purpose in going
over to shoot Andre Purnell?” Petitioner’s current claim that he
did not know the victim would be shot is inconsistent with his
affirmative response at the plea hearing.
In short, we conclude that the factual basis recounted at
the plea colloquy demonstrates that petitioner is ineligible for
relief under section 1170.95. As respondent points out, in
pleading guilty, petitioner admitted that he drove the shooter to

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the shooting and knew the shooter intended to shoot the victim.
By his own admissions, petitioner’s plea shows petitioner had the
intent to kill.
B. The Trial Court Properly Relied on Petitioner’s
Admissions Recounted in the Preliminary Hearing
Transcript
Petitioner argues that the trial court erred in considering
the preliminary hearing transcript. This court has held that the
trial court may consider the record of conviction and its own
file in evaluating a petition for resentencing pursuant to
section 1170.95. (Lewis, supra, 43 Cal.App.5th at p. 1138,
review granted.) The preliminary hearing transcript is part of
the court’s own file. We explained: “Allowing the trial court to
consider its file and the record of conviction is also sound policy.
As a respected commentator has explained: ‘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. For example, if
the petition contains sufficient summary allegations that would
entitle the petitioner to relief, but a review of the court file shows
the petitioner was convicted of murder without instruction or
argument based on the felony murder rule or [the natural and
probable consequences doctrine], . . . it 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.’ ” (Ibid.; see also People v. Drayton (2020)
47 Cal.App.5th 965, 979 (Drayton) [prima facie case under section
1170.95 similar to prima facie case in petition for writ of habeas

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corpus where the court may consider the record “including the
court’s own documents”]; Verdugo, supra, 44 Cal.App.5th at
pp. 329–330, review granted [trial court should consider record of
conviction in determining petitioner’s eligibility].) Petitioner
does not acknowledge the relevant discussion in Lewis and offers
no reason to depart from it.2
Citing People v. Gallardo (2017) 4 Cal.5th 120, 137,
petitioner argues that the trial court erred in relying on the
preliminary hearing transcript. In Gallardo, our high court
did not evaluate a petition for resentencing under section
1170.95. Gallardo concerned whether a trial court could consider
a preliminary hearing transcript to determine whether a
defendant’s prior assault conviction included a deadly weapon for
purposes of determining whether the defendant suffered a prior
strike conviction. (Id. at p. 137.) When she pleaded guilty to the
prior crime, the defendant did not state that she used a deadly
weapon. (Ibid.) The high court applied the Sixth Amendment—
which “ ‘contemplates that a jury—not a sentencing court—will
find’ the facts giving rise to a conviction, when those facts lead to
the imposition of additional punishment under a recidivist
sentencing scheme.” (Id. at p. 134.) At the same time, our high
court acknowledged that a trial court may rely on a defendant’s
admissions in pleading guilty: “Because the relevant facts were
neither found by a jury nor admitted by defendant when entering
her guilty plea, they could not serve as the basis for defendant’s
increased sentence.” (Id. at p. 120.)
2 Petitioner does not object to any specific portion of the
preliminary hearing transcript. He argues only that, as a matter
of law, the trial court could not rely on the preliminary hearing
transcript at all.

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Gallardo does not assist petitioner. Fundamentally, as
respondent points out, Gallardo interpreted the Sixth
Amendment’s right to a jury trial, a right inapplicable to a
petition pursuant to section 1170.95 to vacate or reduce a
sentence. (People v. Anthony (2019) 32 Cal.App.5th 1102, 1156–
1157.) Additionally, here the trial court did not rely on a victim’s
statements that jurors could have rejected; the trial court relied
on petitioner’s admissions.3 Petitioner offers no theory under
which his prior admissions would be inadmissible as evidence of
his intent to kill Purcell.
In short, petitioner does not show that the trial court erred
in considering the preliminary hearing transcript. Even if
arguendo the trial court erred in relying on the preliminary
hearing transcript, petitioner’s admission of a factual basis for
his plea, standing alone, demonstrates that petitioner directly
aided and abetted the murder.
C. Other Authority Petitioner Cites Demonstrates No
Error in the Order Denying His Petition for
Resentencing
Citing People v. Torres (2020) 46 Cal.App.5th 1168, review
granted June 24, 2020, S262011, petitioner argues that so long as
he was potentially eligible for resentencing, the court must
appoint counsel and order briefing. Torres holds that the
3 At the preliminary hearing, Holcomb testified that
petitioner admitted that he volunteered to drive his friends who
were going to shoot some gang members. When petitioner’s
friends exited the car to shoot the Six-Deuces, petitioner
“remained at the location with the doors open and the engine
running . . . so that they could make a fast getaway.” After the
shooting, petitioner drove his friends home.

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trial court erred in relying on the jury’s finding robbery-murder
special circumstance to determine ineligibility because the law
with respect to that special circumstance had changed. (Id.
at pp. 1179–1180.) Even assuming arguendo Torres were
correctly decided, petitioner offers no basis to conclude he is even
potentially eligible for resentencing. Petitioner therefore fails to
show how Torres aids his cause.
Similarly, in Drayton, supra, 47 Cal.App.5th 965, the court
held that “the trial court should accept the assertions in the
petition as true unless facts in the record conclusively refute
them as a matter of law. . . . In assessing the petitioner’s prima
facie showing, the trial court should not weigh evidence or make
credibility determinations.” (Id. at p. 968.) “The trial 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 . . . .” based on “readily ascertainable facts from the
record.” (Id. at p. 980.) Here, the trial court did not make any
credibility findings or weigh evidence, but as Drayton
acknowledges is proper, denied the petition because petitioner
was ineligible for relief under section 1170.95 as a matter of law
based on the record of his admissions.4
4 The reference to a preliminary hearing in Drayton arose
in responding to whether after counsel was appointed, the trial
court erred in not setting an order to show cause in which the
People would have had the burden to show beyond a reasonable
doubt that the petitioner was not entitled to section 1170.95
relief. The Drayton court concluded the trial court erred in
basing a finding that the petitioner was a major participant who
showed reckless indifference to human life on the preliminary
hearing transcript. “As there had been no prior finding by a fact
finder or admission by Drayton to that effect, the district

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In this case, as a matter of law, the record conclusively
refutes petitioner’s assertion that he is eligible for resentencing.
Although petitioner implies that the trial court improperly made
credibility determinations, he fails to identify a single such
purported finding. Petitioner, (now represented by counsel),
offers no theory under which there is “ ‘room for debate’ ” whether
he directly aided and abetted Purnell’s murder. (Drayton, supra,
47 Cal.App.5th at p. 972.) Both in his petition, which described
the facts of his crime, as well as on appeal, petitioner offers no
basis upon which one could conclude that petitioner’s conviction
was based either on a felony murder theory or the natural and
probable consequences doctrine. For all of these reasons, the
trial court properly denied petitioner’s petition for resentencing.
attorney made arguments based on testimony at the preliminary
hearing and urged the trial court to evaluate the evidence
and make a credibility finding adverse to the facts asserted
in Drayton’s petition.” (Drayton, supra, 47 Cal.App.5th at
pp. 981–982.)

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DISPOSITION
The order denying Matthews’ petition for resentencing is
affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
SINANIAN, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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