P. v. Boochee

Filed 5/27/20 P. v. Boochee CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTHONY BOOCHEE,
Defendant and Appellant.
B299847
(Los Angeles County
Super. Ct. No. BA419591)
APPEAL from an order of the Superior Court of
Los Angeles County. Ronald S. Coen, Judge. Affirmed.
Charlotte E. Costan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Idan Ivri and Marc
A. Kohm, Deputy Attorneys General, for Plaintiff and
Respondent.

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Defendant and appellant Anthony Boochee (defendant)
appeals from the order denying his petition filed pursuant to
Penal Code section 1170.95.1 Defendant contends that the trial
court erred in looking beyond the bare allegations of the petition
to find that he did not come within the provisions of the statute.
Defendant also contends the trial court was required to appoint
counsel and permit briefing prior to making such finding.
Finding no merit to defendant’s contentions, we affirm the order.
BACKGROUND
Defendant’s 2016 conviction
Following a jury trial, defendant was convicted of first
degree murder and conspiracy to commit murder. (People v.
Williams et al. (Oct. 24, 2018, B281118) [nonpub. opn.]
(Williams).)2 The jury found true the special circumstance
allegations that the murder was committed for financial gain and
by means of lying in wait. On appeal we reversed the gang-
related enhancements based on section 186.22, subdivision (b)(1),
and section 12022.53 as unsupported by substantial evidence, but
otherwise affirmed the judgment, leaving intact defendant’s
sentence of life without parole as to count 1, while striking the
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 Defendant cites to the appellate record in Williams,
without requesting judicial notice. As the trial court indicated
that it had reviewed the appellate opinion and the superior court
file in making its decision, we take judicial notice on our own
motion of the opinion and the appellate record. (See Evid. Code,
§§ 452, subd. (d), 459.)

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gang-related firearm enhancement of 25 years to life. (See
Williams, at pp. 1-2.)
Senate Bill No. 1437
Subsequent to defendant’s conviction, the Legislature acted
to “revise the felony murder rule to prohibit a participant in the
commission or attempted commission of a felony that has been
determined as inherently dangerous to human life to be imputed
to have acted with implied malice, unless he or she personally
committed the homicidal act.” (Sen. Com. on Public Safety,
Analysis of Sen. Bill No. 1437 (2017-2018 Reg. Sess.) as
introduced.) In 2018, the Legislature passed Senate Bill No.
1437 (S.B. 1437), which amended sections 188 and 189, effective
January 1, 2019. As amended, section 188 limits a finding of
malice as follows: “Except as stated in subdivision (e) of Section
189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed
to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).) Subdivision (e) of section 189 now reads: “A
participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a) in which a death occurs is liable
for murder only if one of the following is proven:
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with
the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the
first degree.
“(3) The person was a major participant in the
underlying felony and acted with reckless

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indifference to human life, as described in subdivision
(d) of Section 190.2.”
Section 1170.95 was added by S.B. 1437 to provide a
procedure by which those convicted of murder can seek
retroactive relief if affected by the changes in sections 188 or 189.
(People v. Martinez (2019) 31 Cal.App.5th 719, 722.)
A petition under section 1170.95 must include the following
allegations:
“(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.
“(3) The petitioner could not be convicted of first or
second degree murder because of changes to Section
188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a)(1)-(3).)
Defendant’s section 1170.95 petition
In June 2019, defendant filed a petition pursuant to section
1170.95, alleging that he had been convicted of first or second
degree murder pursuant to the felony-murder rule or the natural
and probable consequences doctrine, and could not be convicted of
murder because of changes to the law enacted by S.B. 1437. The
petition further alleged that defendant was convicted of first

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degree felony murder, but could not now be convicted under the
current section 189, because he was not the actual killer, did not
aid and abet with intent to kill, and was neither a major
participant, nor acted with reckless indifference to human life.
The petition included a request that counsel be appointed to
represent him.
On June 17, 2019, the trial court summarily denied the
petition, after finding that defendant was not entitled to relief as
a matter of law. The court stated in relevant part as follows:
“According to the court file and the appellate opinion
affirming petitioner’s convictions for the substantive
crimes (B281118), [the] victim was executed as he sat
in his vehicle parked outside of his residence.
Petitioner made admissions inculpating himself in
the crimes. By convicting petitioner of conspiracy to
murder, the jury found that petitioner had express
malice. By their finding of first degree murder on the
theories advanced and the instructions given; i.e.,
premeditation and deliberation and lying in wait, the
jury found petitioner explicitly had the intent to kill.
Both special circumstances found true required an
intentional killing. As such, the trier of fact
determined that defendant acted with express malice
in the commission of his crimes. He is not eligible for
relief under Penal Code section 1170.95.”
Defendant filed a timely notice of appeal from the court’s
order.
DISCUSSION
I. Summary denial was proper
Defendant contends that the trial court should not have
summarily denied his section 1170.95 petition because on its face,
his petition stated a prima facie case for relief.

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Section 1170.95 subdivision (c) provides as follows:
“The court shall review the petition and determine if
the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this
section. If the petitioner has requested counsel, the
court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a
response within 60 days of service of the petition and
the petitioner may file and serve a reply within 30
days after the prosecutor response is served. These
deadlines shall be extended for good cause. If the
petitioner makes a prima facie showing that he or she
is entitled to relief, the court shall issue an order to
show cause.”
Both defendant and respondent agree that subdivision (c)
calls for two prima facie showings. Defendant, however, argues
that the trial court reviews only the allegations of the petition to
determine the first step, and if the allegations are facially
sufficient, the trial court is required to appoint counsel if
requested. On the other hand, respondent argues that the trial
court looks to the petition as well as the record of conviction, and
may summarily deny the petition without the appointment of
counsel where this initial review reveals that the petitioner is
ineligible for relief as a matter of law. Respondent notes that
several recently published cases have taken this view. (See
People v. Verdugo (2020) 44 Cal.App.5th 320, 328-330 (Verdugo),
review granted Mar. 18, 2020, S260493; People v. Lewis (2020) 43
Cal.App.5th 1128, 1137-1138 (Lewis), review granted Mar. 18,
2020, S260598; People v. Cornelius (2020) 44 Cal.App.5th 54, 57-
58 (Cornelius), review granted Mar. 18, 2020, S260410.)
We agree with respondent and the cited cases. “‘It would
be a gross misuse of judicial resources to require the issuance of

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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.’ [Citation.]” (Lewis, supra, 43
Cal.App.5th at p.1138, quoting Couzens et al., Sentencing Cal.
Crimes (The Rutter Group 2019) ¶ 23:51(H)(1), pp. 23-150 to 23-
151.)
As explained in Verdugo, it is section 1170.95, subdivision
(b)(2) which describes the trial court’s review of the adequacy of
the allegations contained in the petition. (Verdugo, supra, 44
Cal.App.5th at pp. 327-328.) Upon such review, “[i]f any of the
information required by this subdivision is missing from the
petition and cannot be readily ascertained by the court, the court
may deny the petition without prejudice to the filing of another
petition and advise the petitioner that the matter cannot be
considered without the missing information.” (§ 1170.95, subd.
(b)(2).) On the other hand, the initial prima facie review of
section 1170.95, subdivision (c) requires a determination of the
petitioner’s “statutory eligibility for resentencing, a concept that
is a well-established part of the resentencing process under
Propositions 36 and 47. [Citations.]” (Verdugo, supra, at p. 329,
citing People v. Page (2017) 3 Cal.5th 1175, 1188-1189 [Prop. 47];

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Teal v. Superior Court (2014) 60 Cal.4th 595, 600 [Prop. 36].)
The trial court examines the complaint, information or
indictment filed against the petitioner, the verdict form, the
abstract of judgment, and any other information in the record of
conviction necessary to the court’s determination. (Verdugo, at
pp. 329-331; see Cornelius, supra, 44 Cal.App.5th at p. 58; Lewis,
supra, 43 Cal.App.5th at p. 1137.) “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” (Verdugo, at pp. 330), or who was convicted as a
direct aider and abettor of the murder (Lewis, at pp. 1135, 1137-
1139), or where the jury found that defendant personally and
intentionally used a firearm to commit murder, indicating that he
was the actual killer. (Cornelius, at pp. 56-58.) It follows that if
such documents do not contradict the otherwise sufficient
allegations of the petition, the first prima facie showing has been
made and the trial court may not summarily deny the petition.
Here the trial court reviewed not only the superior court
file, but the appellate opinion in defendant’s underlying case.3
The trial court’s reasoning suggests that its review included the
information, instructions and verdicts. Our own review of those
documents confirm the trial court’s conclusion.
Defendant’s petition alleged that he was convicted at trial
of first or second degree murder pursuant to the felony-murder
rule or the natural and probable consequences doctrine, and more
3 Appellate opinions are part of the record of conviction.
(People v. Cruz (2017) 15 Cal.App.5th 1105, 1110.)

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specifically, that he was convicted of first degree felony murder.4
A review of the appellate opinion and the verdicts in Williams,
supra, B281118, makes clear that defendant was not convicted of
second degree murder. Thus the trial court’s review of the record
of conviction was necessary to determine whether the petition
correctly alleged a conviction of first degree felony murder. “‘The
felony-murder rule makes a killing while committing certain
felonies murder without the necessity of further examining the
defendant’s mental state.’ [Citation.] ‘Under the felony-murder
doctrine, when the defendant or an accomplice kills someone
during the commission, or attempted commission, of an
inherently dangerous felony, the defendant is liable for either
first or second degree murder, depending on the felony
committed. If the felony is listed in section 189, the murder is of
the first degree; if not, the murder is of the second degree.
[Citations.] Felony-murder liability does not require an intent to
kill, or even implied malice, but merely an intent to commit the
underlying felony. [Citation.]’ [Citations.]” (People v. Bryant
(2013) 56 Cal.4th 959, 965.)
In 1998, when the murder was committed, the underlying
felonies for first degree felony murder listed in section 189 were
(and are now) arson, rape, carjacking, robbery, burglary,
mayhem, kidnapping, train wrecking, and enumerated sex
crimes. (See Stats. 1993, ch. 611, § 4.5.) Neither the information
nor the amended information filed in defendant’s case alleged
that defendant committed, attempted to commit, or intended to
4 Defendant did not check the box on form petition to
indicate that he had been convicted of second degree felony
murder or second degree murder under the natural and probable
consequences.

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commit any of these crimes. Count 1 alleged that defendant and
his codefendants killed the victim with malice aforethought.
Count 2 alleged that defendant and his codefendants unlawfully
conspired together to commit the crime of murder.
The jury was instructed with CALJIC Nos. 3.01, 8.11, 8.20,
which together explain the direct aiding and abetting theory of
liability, as well as express malice, implied malice, and second
degree murder. The jury was instructed that a finding of implied
malice would result in a verdict of second degree murder, not first
degree murder. The instruction regarding felony murder is
CALJIC No. 8.21, which was not read to the jury, and the jury
was not given any other instruction regarding felony murder or
any underlying felony other than murder itself and conspiracy to
commit murder. The verdict form shows that the jury found
defendant guilty of murder “as charged in Count 1 of the
information” and that the jury found defendant guilty of
conspiracy “as charged in Count 2 of the information.”
In sum, defendant was neither charged with nor convicted
of felony murder. The allegation in the petition that defendant
was convicted of felony murder was contradicted by the record of
conviction, and defendant’s petition failed to make “a prima facie
showing that [he] falls within the provisions of [section 1170.95].”
(§ 1170.95, subds. (a), (c).)
II. No right to briefing before prima facie showing
Defendant contends that the trial court erred in relying
solely on the appellate opinion in Williams, supra, B21118, and
that the court improperly relied on facts summarized in the
opinion to justify its summary denial by declaring him “‘an actual
killer.’” We find no such finding in the trial court’s order and
defendant does not cite to the record for his assertion, which he

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abandons in his reply brief. And we find no statement by the
court that it relied solely on the opinion. The court stated that it
had reviewed the opinion and the court file.
Defendant also contends that if the trial court had
appointed counsel and permitted briefing, counsel could have
provided “new and additional evidence” supporting his claim that
he did not harbor an intent to kill, despite the jury’s conspiracy
and special circumstances findings, and he could then satisfy the
second-step prima facie showing. He relies on section 1170.95,
subdivision (d), which prescribes the procedure to be followed
after the first and second prima facie showings have been made.
As we construe defendant’s argument, it is that he might have
been able to make both showings if he had been permitted to
proceed as though he had made both showings.
We reject defendant’s reasoning. An order to show cause
does not issue until the second prima facie showing is made. (§
1170.95, subd. (c).) By that time, after the first prima facie
showing has been made, counsel has been appointed, and counsel
has had the opportunity to file a brief. (See § 1170.95, subd. (c).)
However, counsel does not submit any new or additional evidence
until after the second prima facie showing, when the court issues
an order to show cause and sets a hearing. (See § 1170.95, subd.
(d)(3).) As the record of conviction shows that defendant does not
fall within the provisions of the statute, he did not satisfy the
requirement of the first prima facie showing. Defendant is thus
ineligible for relief as a matter of law. (See § 1170.95, subd. (c);
Verdugo, supra, 44 Cal.App.5th at p. 329.) If defendant indeed
has new evidence on the issue of malice, he might have cause to
seek other remedies, but section 1170.95 relief is unavailable to
him, as the prosecution did not proceed on a theory of felony

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murder, and defendant was not convicted of felony murder or
second degree murder. (See § 1170.95, subd. (a)(3).)
III. No right to appointed counsel before first prima facie
showing
A. No statutory right to counsel
Defendant suggests that the plain meaning of section
1170.95 requires the trial court to appoint counsel and permit
briefing if the allegations of the petition alone state a prima facie
case of eligibility. We reject defendant’s contention and adopt the
following reasoning of Lewis: “The provision for the appointment
of counsel is set forth in the second sentence of section 1170.95,
subdivision (c), and does not, when viewed in isolation, indicate
when that duty arises. When interpreting statutory language,
however, we do not “‘examine that language in isolation, but in
the context of the statutory framework as a whole.’” [Citation.]
When the statutory framework is, overall, chronological, courts
will construe the timing of particular acts in relation to other acts
according to their location within the statute; that is, actions
described in the statute occur in the order they appear in the
text. [Citation.] . . . [A] statute’s chronological structure
supports interpretation that statutory acts occur in the order
they appear in the text[.]” (Lewis, supra, 43 Cal.App.5th at pp.
1139-1140.) Thus, “the requirement to appoint counsel as arising
in accordance with the sequence of actions described in section
1170.95 subdivision (c); that is, after the court determines that
the petitioner has made [the first] prima facie showing that
petitioner ‘falls within the provisions’ of the statute, and before
the submission of written briefs and the court’s determination
whether petitioner has made ‘a prima facie showing that he or
she is entitled to relief.’ [Citation.]” (Id. at p. 1140, fn. omitted.)

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B. No federal constitutional right to counsel
Defendant contends that he had the right to appointed
counsel under the Sixth Amendment to the federal constitution,
and that summary denial without the appointment of counsel
violated his right to due process.
Prisoners have no “constitutional right to counsel when
mounting collateral attacks upon their convictions [citation].”
(Pennsylvania v. Finley (1987) 481 U.S. 551, 555.) Under the
federal constitution, the right to appointed counsel extends only
to trial and the first appeal; and when states enact statutes to
provide other postconviction relief, they have substantial
discretion to develop and implement such programs. (Id. at pp.
557-559.) In California, examples can be found in the rules
governing petitions for writ of habeas corpus and coram nobis
which require the petition to state a prima facie showing of
entitlement to relief before the court issues an order to show
cause and appoints counsel. (People v. Fryhaat (2019) 35
Cal.App.5th 969, 982)
Defendant relies on the holding in People v. Rouse (2016)
245 Cal.App.4th 292, 296-297, that resentencing under section
1170.18 (Prop. 47) is a “critical stage” of the criminal process
requiring the appointment of counsel. Rouse does not help
defendant, as its holding was limited to petitioners who had
passed the initial eligibility stage and had been found eligible
under the statute. (Id. at pp. 299-300.) The court compared the
procedure to habeas corpus and coram nobis, where once “a
postconviction petition by an incarcerated defendant ‘attacking
the validity of a judgment states a prima facie case leading to
issuance of an order to show cause, the appointment of counsel is
demanded by due process concerns.’ [Citations.]” (Id. at p. 300,

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italics added, citing In re Clark (1993) 5 Cal.4th 750, 780 [habeas
corpus], and People v. Shipman (1965) 62 Cal.2d 226, 232-233
[coram nobis].) Defendant did not get to that stage. He did not
make a prima facie showing that he came within the provisions of
section 1170.95, which would have triggered a statutory right to
counsel. (§ 1170.95, subd. (c).) And as he made no prima facie
showing that he was entitled to relief, the trial court was not
required to issue an order to show cause or schedule a hearing.
(See § 1170.95, subds. (c), (d)(1).) Rouse thus provides defendant
with no helpful comparison.
Again, we conclude that the record of conviction reviewed
by the trial court shows that defendant does not fall within the
provisions of the statute, as he was not convicted of felony
murder or second degree murder under the natural and probable
consequences doctrine. Defendant is thus ineligible for relief as a
matter of law. (See § 1170.95, subds. (a), (c); Verdugo, supra, 44
Cal.App.5th at p. 329.) As defendant did not satisfy the first
prima facie showing that he came within the provisions of section
1170.95, he was not entitled to counsel. (Lewis, 43 Cal.App.5th
at pp. 1139-1140.)

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DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST

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