P. v. Forch

Filed 1/10/20 P. v. Forch CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
FRANKLIN LARANCE
FORCH,
Defendant and Appellant.
B296637
(Los Angeles County
Super. Ct. No. MA030634)
APPEAL from an order of the Superior Court of Los
Angeles County. Kathleen Blanchard, Judge. Affirmed.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Idan Ivri and Nancy Lii
Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * * * * * *

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Defendant and appellant Franklin Larance Forch appeals
from the denial of his petition for resentencing pursuant to Penal
Code section 1170.95. We affirm.
Defendant was charged with multiple felonies, including
the murder of Milton Tutt (count 1). In 2009, pursuant to a
negotiated plea agreement, defendant pled no contest to the
murder and admitted a prior qualifying strike conviction, a felony
enhancement (Pen. Code, § 667, subd. (a)(1)), and four prison
priors (§ 667.5, subd. (b)). The court accepted defendant’s plea
and waivers on the record and counsel stipulated to a factual
basis for the plea. The remaining counts were dismissed.
Defendant was sentenced to state prison for a term of 23 years to
life and awarded 1,853 days presentence custody credits. This
court affirmed defendant’s conviction in an unpublished opinion
filed on February 7, 2011 (case No. B221505).
On January 7, 2019, defendant filed a petition in propria
persona requesting resentencing pursuant to Penal Code
section 1170.95. The petition requested the appointment of
counsel.
The trial court denied the petition. In the court’s written
denial order, the court explained: “[T]he court takes judicial
notice of the trial court records in this case, including the
Probation Report, which details the underlying facts of the case.
The record reveals the defendant entered a plea to second degree
murder. However, the People never pursued either a felony-
murder theory or a natural and probable consequence theory of
murder. Here, the defendant chased his mother and stepfather
down with a knife, then proceeded to attack them both. His
stepfather later died as a result[.] . . . [T]he theory of liability for
murder was that the defendant was the actual killer, who acted

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with malice aforethought. [¶] Because the case involved neither
a felony-murder theory, nor natural and probable consequences
theory, the defendant has failed to make a prima facie case for
relief.”
Defendant contends the trial court erred in summarily
denying the petition without first appointing him counsel who
could have assisted him in briefing the issues and explaining why
relief is warranted. Defendant argues the court’s summary
denial is at odds with the statutory language.
We disagree. “When we interpret statutes, giving effect to
legislative purpose is the touchstone of our mission.” (People v.
Valencia (2017) 3 Cal.5th 347, 409.) “The text of the statute is
integral to our understanding of the statute’s purpose.” (Ibid.)
“We must take ‘the language . . . as it was passed into law, and
[we] must, if possible without doing violence to the language and
spirit of the law, interpret it so as to harmonize and give effect to
all its provisions.’ ” (Id. at pp. 409-410.)
Penal Code section 1170.95 was enacted as part of the
legislative changes effected by Senate Bill 1437. “Senate
Bill 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).)” (People v. Martinez (2019)
31 Cal.App.5th 719, 723.)
Penal Code section 1170.95, subdivision (a) provides, in
plain language, that only persons “convicted of felony murder or
murder under a natural and probable consequences theory” may

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file a petition seeking resentencing. Subdivision (c) 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.”
The statute contemplates an initial eligibility
determination by the court. Allegations stated in a resentencing
petition may be erroneous. Where, as here, there is no
reasonable factual dispute that the defendant is not eligible for
relief, it would be a waste of judicial resources to automatically
require the appointment of counsel and briefing on essentially a
moot point. The court, after taking judicial notice of the record
which showed defendant was charged and convicted as the actual
killer, was well within its rights and acting in harmony with the
statutory scheme by issuing a summary denial of the petition.
Any denial of a state statutory right to counsel is subject to
harmless error analysis. (People v. Epps (2001) 25 Cal.4th 19, 28-
29 [denial of right that is “purely a creature of state statutory
law” is subject to standard for state law errors set forth in People
v. Watson (1956) 46 Cal.2d 818, 836].) If there were error, it was
harmless by any standard.
DISPOSITION
The order denying the petition for resentencing is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
STRATTON, J.

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