P. v. Baquir

Filed 5/21/20 P. v. Baquir CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
LAMAR BILAL BAQIR,
Defendant and Appellant.
B297662
Los Angeles County
Super. Ct. No. YA023242
APPEAL from an order of the Superior Court of Los
Angeles County, Laura C. Ellison, Judge. Affirmed.
James M. Crawford, 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, Acting
Senior Attorney General, Charles S. Lee and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437),
effective January 1, 2019, amended the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder. Under newly-enacted Penal Code section
1170.95,1 a person who was convicted under theories of felony
murder or murder under the natural and probable consequences
doctrine, and who could not be convicted of murder following the
enactment of SB 1437, may petition the sentencing court to
vacate the conviction and resentence on any remaining counts.
In 1995, appellant and defendant Lamar Bilal Baqir pled
guilty to second degree murder and admitted he personally used
a firearm in the commission of the offense. In 2019, Baqir filed a
petition for recall and resentencing under section 1170.95. The
trial court denied the petition, concluding as a matter of law
Baqir was not entitled to relief because the court file showed he
was the actual killer. On appeal, Baqir argues the court erred in
denying his petition because he alleged sufficient facts to state a
prima facie claim, and the court should have appointed him
counsel. Finding no error, we affirm.
1 All undesignated statutory references are to the Penal
Code.

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BACKGROUND2
According to the preliminary hearing testimony of Azoney
Sweet, on October 31, 1994, Baqir and a taller man approached
Sweet and Andre Lachapell Smith on the sidewalk in front of an
apartment complex in Inglewood. Smith and Baqir hugged and
then talked for about two minutes. Smith again hugged Baqir,
and Baqir and the taller man turned and walked away. Smith
and Sweet turned to walk back to the apartment.
Sweet and Smith both turned back around, and Sweet saw
Baqir pull out a gun. The taller man ran away. Baqir shot Smith
twice in the chest, killing him. Baqir shot Sweet in the left
shoulder, Sweet turned and started to run, and Baqir shot him in
the right wrist.
While Sweet was in the hospital, he drew pictures of Baqir
and the taller man. Sweet identified Baqir as the shooter in a
photo six-pack, a live lineup, and in court.
In 1995, Baqir pled guilty to second degree murder (§ 187,
subd. (a)) and admitted he personally used a firearm during the
commission of the offense (§ 12022.5).3 On March 14, 2019, he
filed a petition for resentencing under section 1170.95, alleging,
among other things, that he was convicted of murder “pursuant
to the felony murder rule or the natural and probable
consequences doctrine[,]” he was not the actual killer, and he
could not now be convicted of first or second degree murder
2 We grant the Attorney General’s request to take judicial
notice of the preliminary hearing transcript and plea hearing
transcript from Baqir’s 1995 murder case.
3 Although it is not relevant to the issues presented on
appeal, Baqir also pled guilty to one count of attempted murder.

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because of the changes made under SB 1473. Baqir requested
that counsel be appointed on his behalf. The trial court
summarily denied the petition for resentencing, concluding Baqir
was ineligible for relief as a matter of law. In its memorandum of
decision, the trial court explained the court file of Baqir’s murder
conviction showed he was the actual killer; pled guilty to second
degree murder and admitted a personal use firearm allegation;
was not convicted under a felony murder theory or a natural and
probable consequences theory; and was identified during the
preliminary hearing as the actual shooter.
Baqir timely appealed.
DISCUSSION
A. Governing Principles
1. SB 1437’s Limitation of Accomplice Liability for
Murder
The legislature enacted SB 1437 “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).) SB 1437 amended
section 189 to provide that a participant in qualifying felonies
during which death occurs generally will not be liable for murder
unless the person was (1) “the actual killer,” (2) a direct aider and
abettor in first degree murder, or (3) “a major participant in the

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underlying felony [who] acted with reckless indifference to
human life[.]” (§ 189, subd. (e).)4
SB 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People
v. Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), fn. omitted,
review granted Mar. 18, 2020, S260493.) Under new section 188,
subdivision (a)(3), “[m]alice shall not be imputed to a person
based solely on his or her participation in a crime.” “As a result,
the natural and probable consequences doctrine can no longer be
used to support a murder conviction. [Citations.]” (People v. Lewis
(2020) 43 Cal.App.5th 1128, 1135 (Lewis), review granted Mar.
18, 2020, S260598.)
2. Petitions to Vacate Prior Convictions
SB 1437 also added section 1170.95 to the Penal Code. This
section permits individuals who were convicted of felony murder
or murder under a natural and probable consequences theory,
and who could not be convicted of murder following SB 1437’s
changes to sections 188 and 189, to petition the sentencing court
to vacate the conviction and resentence on any remaining counts.
(§ 1170.95, subd. (a).) A petition for relief under section 1170.95
must include: “(A) A declaration by the petitioner that he or she
is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case
4 This limitation does not apply “when the victim is a peace
officer who was killed while in the course of the peace officer’s
duties, where the defendant knew or reasonably should have
known that the victim was a peace officer engaged in the
performance of the peace officer’s duties.” (§ 189, subd. (f).)

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number and year of the petitioner’s conviction. [¶] (C) Whether
the petitioner requests the appointment of counsel.” (§ 1170.95,
subd. (b)(1).) If any of the information is missing “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).)
If the petition contains the required information, section
1170.95, subdivision (c), prescribes “a two-step process” for the
court to determine if it should issue an order to show cause.
(Verdugo, supra, 44 Cal.App.5th at p. 327.) First, the court must
“review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section.” (§ 1170.95, subd. (c).) If the petitioner has made
this initial prima facie showing, and has requested that counsel
be appointed, he or she is then entitled to appointed counsel.
(Ibid.; Lewis, supra, 43 Cal.App.5th at p. 1140 [“trial court’s duty
to appoint counsel does not arise unless and until the court
makes the threshold determination that petitioner ‘falls within
the provisions’ of the statute.”].) The court then reviews the
petition a second time. If, in light of the parties’ briefing, it
concludes the petitioner has made a prima facie showing that he
or she is entitled to relief, it must issue an order to show cause.
(§ 1170.95, subd. (c); Verdugo, supra, 44 Cal.App.5th at p. 328.)
“Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts.” (Verdugo, supra, 44 Cal.App.5th at p. 327,
citing § 1170.95, subd. (d)(1).) At the hearing, the parties may

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rely on the record of conviction or present “new or additional
evidence” to support their positions. (§ 1170.95, subd. (d)(3).)
B. Analysis
On appeal, Baqir argues the trial court erred by denying
his section 1170.95 motion because he stated a prima facie case
for relief. He further argues that because he made a prima facie
showing, the trial court erred by failing to appoint him counsel.
Baqir’s claims regarding the procedures section 1170.95 affords
raise questions of law subject to de novo review. (See In re T.B.
(2009) 172 Cal.App.4th 125, 129 [interpretation of statute
reviewed de novo].) Applying this standard, we reject Baqir’s
contentions.
The trial court was allowed to conclude, as it did, at the
first stage of the section 1170.95 analysis, that Baqir was
ineligible for relief as a matter of law. (Verdugo, supra, 44
Cal.App.5th at p. 329 [“The court’s role [at the preliminary
eligibility determination stage] is simply to decide whether the
petitioner is ineligible for relief as a matter of law . . . .”].) In
concluding Baqir was ineligible as a matter of law, the court was
entitled to evaluate the “documents in the court file or otherwise
part of the record of conviction that [were] readily
ascertainable . . . .” (Ibid.)5 Nothing in the court file suggested
Baqir was charged with or convicted of murder on a felony-
murder or natural and probable consequences theory. Rather, as
5 We therefore reject the contention that the trial court, in
determining whether Baqir successfully made an initial prima
facie showing of eligibility for relief, was required to accept as
true the factual allegations in his petition.

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the trial court correctly explained in its memorandum of decision,
Sweet’s preliminary hearing testimony and Baqir’s admission of
the personal firearm use allegation show that his murder
conviction rested on the theory that he was the actual killer.
Finding no error in the court’s conclusion that Baqir was
ineligible for relief as a matter of law, we also reject Baqir’s
argument that the court erred by not appointing counsel. (Id. at
pp. 332-333 [“If, as here, the court concludes the petitioner has
failed to make the initial prima facie showing required by
subdivision (c), counsel need not be appointed.”].)

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DISPOSITION
The order denying Baqir’s petition under section 1170.95 is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.

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