P. v. Forman

Filed 9/18/20 P. v. Forman CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
BERT FRANKLIN FORMAN,
Defendant and Appellant.
B297641
(Los Angeles County
Super. Ct. No. BA087830)
APPEAL from an order of the Superior Court of
Los Angeles County, Robert J. Perry, Judge. Affirmed.
Leonard J. Klaif, 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 J. Inberg and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
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Bert Franklin Forman was convicted of second degree
murder. Years later, he petitioned for resentencing under Penal
Code1 section 1170.95. The trial court summarily denied the
petition without appointing counsel for Forman. He appeals and
contends that section 1170.95 is constitutional and that he was
entitled to have counsel appointed. We reject these contentions.
BACKGROUND
In 1995, a jury found Forman guilty of second degree
murder and of discharge of a firearm with gross negligence, and
the jury found true the allegation that a principal was armed
with a firearm during the commission of the offense. The trial
court sentenced him to 15 years to life plus one year for the
firearm enhancement.
Thereafter, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
took effect January 1, 2019. That law amended the felony-
murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder, all to the end of
ensuring that a person’s sentence is commensurate with his
individual criminal culpability. Based on the new law, a person
convicted of murder under a felony murder or natural and
probable consequences theory may petition the sentencing court
for vacation of the conviction and resentencing, if certain
conditions are met. (§ 1170.95.)
In February 2019, Forman petitioned for resentencing
under that new law. In his form petition, Forman checked boxes
indicating: (1) a complaint, information or indictment had been
filed against him that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
1 All further statutory references are to the Penal Code.

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probable consequences doctrine, (2) he was convicted of first or
second degree murder under one of those doctrines, and (3) he
could not now be convicted of first or second degree murder
because of changes to sections 188 and 189. Forman also checked
boxes to indicate he was not the actual killer, was not a major
participant in the felony and did not act with reckless
indifference to human life, and to request that the court appoint
counsel for him during the resentencing process.
The trial court2 summarily denied the petition without
appointing counsel for Forman. In its order, the trial court
referred to the opinion affirming the judgment of conviction
(People v. Forman (Oct. 28, 1996, B094200) [nonpub. opn.])3 and
to the jury instructions. The trial court recited the background of
Forman’s crimes as follows. One evening in 1993, Forman was on
a double date. While waiting for his date, Forman parked his car
so that it blocked an exit to an apartment building. A car trying
to exit flashed its lights at Forman. This annoyed Forman and
his companions, so they followed the car. A man in Forman’s car
told Forman, “let’s go get him,” and passed a gun to Forman.
Forman fired a shot at the car and then gave the gun back to the
man, directing him to “cap on him.” Forman pulled his car
alongside the victim’s car. The man in Forman’s car fired at the
victim’s car, killing the victim.
After reciting these facts, the trial court rejected that
Forman was convicted under the felony murder rule or the
natural and probable consequences doctrine, as the jury was not
instructed on those theories. Moreover, the trial court stated that
2 Judge Perry also presided over Forman’s trial.
3 We took judicial notice of the record in that case.

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Forman “clearly aided and abetted the killer and acted with an
obvious intent to kill.” As a secondary reason for denying the
petition, the trial court found Senate Bill No. 1437 to be
unconstitutional.
DISCUSSION
Forman appeals the order denying his petition, contending
that the trial court should have appointed counsel for him and
that the new law is constitutional.4 Our principal task in
interpreting a statute is to determine legislative intent and to
give effect to the law’s purpose. (People v. Verdugo (2020)
44 Cal.App.5th 320, 328, fn. 8 (Verdugo), review granted Mar. 18,
2020, S260493.) Our task leads us to conclude that the trial
court properly denied the petition.
Under Senate Bill No. 1437, malice may no longer be
imputed to a person based solely on the person’s participation in
the crime; now, the person must have acted with express or
implied malice to be convicted of murder. (§ 188; People v. Munoz
(2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019,
S258234.) To that end, the natural and probable consequences
doctrine no longer applies to murder. And a participant in
enumerated crimes is liable under the felony-murder doctrine
only if the participant was the actual killer; or with the intent to
kill, aided and abetted the actual killer in commission of first
4 The Supreme Court is considering whether superior
courts may consider the record of conviction in determining
whether a defendant has made a prima facie showing of
eligibility for relief under section 1170.95 and when the right to
appointed counsel arises under subdivision (c) of that section.
(People v. Lewis (2020) 43 Cal.App.5th 1128, review granted
Mar. 18, 2020, S260598.)

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degree murder; or was a major participant in the underlying
felony and acted with reckless indifference to human life. (§ 189,
subd. (e); see Munoz, at pp. 749–750.)
Senate Bill No. 1437 also added section 1170.95. “Pursuant
to subdivision (a) only individuals who meet three conditions are
eligible for relief: (1) the person must have been charged with
murder ‘under a theory of felony murder or murder under the
natural and probable consequences doctrine,’ (2) convicted of first
or second degree murder, and (3) can no longer be convicted of
first or second degree murder ‘because of changes to Section 188
or 189 made effective January 1, 2019.’ ” (People v. Drayton
(2020) 47 Cal.App.5th 965, 973.)
Courts of Appeal have interpreted section 1170.95 to
provide for multiple reviews of a petition by the trial court.
(People v. Tarkington (2020) 49 Cal.App.5th 892, 897–898, review
granted Aug. 12, 2020, S263219; People v. Drayton, supra,
47 Cal.App.5th at p. 974; People v. Cornelius (2020)
44 Cal.App.5th 54, 57–58, review granted Mar. 18, 2020,
S260410; Verdugo, supra, 44 Cal.App.5th at p. 328.)
Subdivision (b) of section 1170.95 describes an initial review to
determine the facial sufficiency of the petition. (Verdugo, at
p. 328.) To be facially sufficient, the petition must contain the
petitioner’s declaration that the petitioner is eligible for relief
according to the criteria in subdivision (a), the case number and
year of conviction, and whether the petitioner is requesting
appointment of counsel. (§ 1170.95, subd. (b)(1).) If the petition
is missing any of this information “and cannot be readily
ascertained by the court, the court may deny the petition without
prejudice.” (§ 1170.95, subd. (b)(2).) This initial review amounts

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essentially to a ministerial review to ensure that the right boxes
are checked.
Subdivision (c) of section 1170.95 then describes the next
two levels of review. It 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 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.”
The first sentence in subdivision (c) refers to a prebriefing,
initial prima facie review to preliminarily determine a
petitioner’s statutory eligibility for relief as a matter of law.
(Verdugo, supra, 44 Cal.App.5th at p. 329.) In this step of review,
the trial court determines, 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.
(Id. at pp. 329–330.) The court may review the complaint, the
information or indictment, the verdict form or the documentation
for a negotiated plea, and the abstract of judgment. (Ibid.) A
Court of Appeal opinion is part of the appellant’s record of
conviction (id. at p. 333), as are jury instructions (People v. Soto
(2020) 51 Cal.App.5th 1043, 1055). If these documents reveal
ineligibility for relief, the trial court can dismiss the petition.
(Verdugo, at p. 330.)

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If the record of conviction does not establish as a matter of
law the petitioner’s ineligibility for resentencing, evaluation of
the petition proceeds to the second prima facie review, in which
“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.) The trial court must
accept as true the petitioner’s factual allegations and make a
preliminary assessment regarding whether the petitioner would
be entitled to relief if the factual allegations were proved. (Id. at
p. 328.)
We agree with those Courts of Appeal that interpret
section 1170.95 to permit a trial court to make an initial
determination whether the petitioner may be entitled to relief
without first appointing counsel. The structure and grammar of
subdivision (c) of that section “indicate the Legislature intended
to create a chronological sequence: first, a prima facie showing;
thereafter, appointment of counsel for petitioner; then, briefing by
the parties.” (Verdugo, supra, 44 Cal.App.5th at p. 332, italics
added; accord, People v. Lewis, supra, 43 Cal.App.5th at p. 1140.)
As Verdugo at pages 328 to 329 noted, to hold otherwise that
counsel must be appointed once a petitioner files a facially
sufficient petition renders subdivision (c) redundant to
subdivision (b)(2).
And, where the record of conviction shows that the
petitioner is not entitled to relief under Senate Bill No. 1437, it
“ ‘would be a gross misuse of judicial resources to require the
issuance of an order to show cause or even appointment of

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counsel based solely on the allegations of the petition, which
frequently are erroneous.’ ” (People v. Lewis, supra,
43 Cal.App.5th at p. 1138.)
That is the case here. The trial court did not expressly
identify on what documents it relied in reaching its conclusion.
Even so, it is evident from the trial court’s reference to the Court
of Appeal opinion affirming the judgment of conviction and to the
jury instructions that the trial court examined at least those
documents. Although the best practice is for the trial court to
state on what parts of the record of conviction it relies in making
its decision, reversal is not required when the record of conviction
demonstrates ineligibility for resentencing. (People v.
Tarkington, supra, 49 Cal.App.5th at p. 910.) The jury was
instructed on aiding and abetting under CALJIC No. 3.01 and
was not instructed on felony murder or the natural and probable
consequences doctrine. This instructional scenario accords with
the background. That is, Forman followed the victim, shot at
him, gave the gun to an accomplice, and told the accomplice to
shoot the victim. Forman was therefore convicted as a direct
aider and abettor who acted with intent to kill. As such, Senate
Bill No. 1437 does not apply to him. “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.”
(People v. Lewis, supra, 43 Cal.App.5th at p. 1135.)
Given our conclusion that Senate Bill No. 1437 does not
apply to Forman, we need not discuss at length the trial court’s
secondary reason for denying the petition, that Senate Bill
No. 1437 is unconstitutional, except to state our agreement with
Courts of Appeal finding Senate Bill No. 1437 is constitutional.

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(See generally People v. Lamoureux (2019) 42 Cal.App.5th 241;
People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
EGERTON, J.

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