P. v. Garrett

Filed 5/22/20 P. v. Garrett 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(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 This opinion has not been certified for publication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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
MARCUS LEWIS GARRETT,
Defendant and Appellant.
B298495
(Los Angeles County
Super. Ct. No. A955129)
APPEAL from a judgment of the Superior Court for Los Angeles
County, Laura F. Priver, Judge. Affirmed.
Janyce Keiko Imata Blair, 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, Idan Ivri and Allison H. Chung, Deputy Attorneys General, for
Plaintiff and Respondent.

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Defendant Marcus Lewis Garrett appeals from the denial of his
petition for resentencing under Penal Code1 section 1170.95. Without
appointing counsel for defendant and without defendant present, the
trial court denied the petition on the ground that defendant’s first
degree murder conviction did not come within the statute and therefore
he did not qualify for resentencing. Defendant contends the trial court
violated section 1170.95 and his state and federal constitutional rights
to due process and the assistance of counsel by denying his petition
without appointing counsel for him and without giving the parties an
opportunity to file additional briefing. We conclude there was no
constitutional violation, and affirm the judgment.
BACKGROUND
Our summary of the factual background is based upon our opinion
affirming defendant’s conviction, People v. Garrett [nonpub. opn., filed
Oct. 20, 1993], case No. B057405 (Garrett I), and portions of the record
from that appeal.2
In June 1987, Francisco Arambula was sitting with Maria
Montalvo in his parked pickup truck; he had musician’s sound
equipment in the bed of his truck. Defendant, who was wearing a
mask, approached the driver’s side of the truck; his accomplice
1 Further undesignated statutory references are to the Penal Code.
2 The Attorney General requested that we take judicial notice of our
opinion and the record in Garrett I, and defendant attached to his petition
some of the documents from that record. We grant the Attorney General’s
request.

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approached the passenger side. Defendant broke the window with a
handgun and ordered Arambula to get out of the truck. When
Arambula reached over to open the door, defendant shot him twice. The
door opened and Arambula fell to the ground. Defendant fired more
shots at him. Defendant and the accomplice got in the truck and drove
off. The truck crashed into a fence a few blocks away, and the men fled
on foot. (Garrett I, supra, at pp. 2-3.)
A short time after the after the murder, defendant admitted to a
fellow gang member that he shot a man when he (defendant) tried to
steal the man’s sound equipment; the gang member observed that
defendant had a .38 caliber handgun at the time defendant was
speaking to him. Police officers subsequently searched defendant’s
home and recovered, among other things, a .38 caliber revolver that
ultimately was shown to be the murder weapon. (Garrett I, supra, at p.
3.)
Defendant was arrested and charged with one count of murder
(§ 187, subd. (a)) and one count of robbery (§ 211). As to the murder
count, it was alleged that (1) the murder was committed by defendant
while he was engaged in a robbery within the meaning of section 190.2,
subdivision (a)(17); (2) in the commission of the murder defendant
personally used a firearm within the meaning of sections 1203.06,
subdivision (a)(1) and 12022.5; and (3) in the commission of the murder
a principal was armed with a handgun within the meaning of section
12022, subdivision (a). As to the robbery count, it was alleged that (1)
in the commission of the robbery, defendant personally used a firearm
within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5;

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and (2) in the commission of the robbery a principal was armed with a
handgun within the meaning of section 12022, subdivision (a).3
The prosecution tried the case solely upon a felony murder theory.
(Garrett I, supra, at p. 4.) Thus, when opposing defendant’s request for
an instruction on manslaughter, the prosecution argued the only
evidence of intent was an intent to steal. The trial court agreed, and
denied the requested instruction. (Id. at pp. 4-5.) The court instructed
the jury on felony murder, the intent necessary for robbery, and the
intent for the murder-in-the-course-of-a-robbery allegation. (Id. at p. 5.)
The jury found defendant guilty of first degree murder and second
degree robbery, and as to each count found to be true that defendant
personally used a firearm. (Garrett I, supra, at p. 2.) The jury,
however, found the murder-in-the-course-of-a-robbery allegation to be
not true. (Id. at p. 2, fn. 1.) Defendant was sentenced to 25 years to life
in prison, plus two years for the firearm use. (Id. at p. 2.)
In January 2019, defendant filed a petition for resentencing under
section 1170.95. The petition stated, among other things, that
defendant had been convicted of first or second degree murder under
the felony murder rule or the natural and probable consequences
doctrine and that he was entitled to be resentenced under section
1170.95. Defendant also asked that the court appoint counsel for him
“during this re-sentencing process.”
3 The information was filed against defendant and his accomplice,
Darrell Keith Tolliver; however, the personal use of a firearm allegations and
the allegation that the murder was committed during the commission of a
robbery were made only against defendant. Tolliver was tried separately.

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A hearing was held on March 11, 2019, attended by a deputy
public defender and a prosecutor; defendant was not present. At the
hearing, the trial court stated that defendant had filed a petition under
section 1170.95, and that the court was extending time on the petition
to April 9, without making any rulings on whether there was a prima
facie case. The court continued: “In the interim I’m not going to
appoint counsel but on that date the court will make that
determination.” The deputy public defender responded, “Thank you,
Your Honor.” The court then stated, “If there is going to be any ruling
other than a summary denial I will appoint counsel.” The prosecutor
did not speak during the hearing.
The court subsequently issued a memorandum of decision
summarily denying defendant’s petition on the ground that defendant
was not entitled to relief as a matter of law because he was the actual
killer of the victim. The court noted that although the jury in
defendant’s case was instructed on felony murder, the recent
amendments to the felony murder rule did not apply to an individual
who was the actual killer.
Defendant timely filed a notice of appeal from the denial of his
petition.
DISCUSSION
A. Amendment of the Felony Murder Rule
On January 1, 2019, California’s felony murder rule and the
natural and probable consequences doctrine were altered by Senate Bill
No. 1437 (S.B. 1437). S.B. 1437 was enacted to “amend the felony

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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).) It accomplished this purpose by amending section 188, defining
malice, and section 189, defining the degrees of murder.
In amending section 188, S.B. 1437 added the following provision:
“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); Stats. 2018, ch.
1015, § 2.) S.B. 1437 also added the following as subdivision (e) of
section 189: “A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a)[4] 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
indifference to human life, as described in subdivision (d) of Section
190.2.” (§ 189, subd. (e); Stats. 2018, ch. 1015, § 3.)
4 Robbery is one of the felonies listed in section 189, subdivision (a).

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B. Petitions Under Section 1170.95
In addition to amending the felony murder rule and the natural
and probable consequences doctrine, S.B. 1437 also added section
1170.95. (Stats. 2018, ch. 1015, § 4.) That statute allows a person
convicted of felony murder, or murder under the natural and probable
consequences doctrine, to “file a petition with the court that sentenced
the petitioner to have the petitioner’s murder conviction vacated and to
be resentenced on any remaining counts when all of the following
conditions apply: [¶] (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. . . . [¶] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189.” (§ 1170.95, subd. (a).)
Subdivision (b)(1) of section 1170.95 requires that the petition be
filed with the court that sentenced the petitioner, and must include (a)
a declaration by the petitioner that he or she is eligible for relief under
the section; (b) the superior court case number and year of conviction;
and (c) whether the petitioner requests appointment of counsel.
Subdivision (b)(2) provides that the trial court may deny the petition
without prejudice if any of the information required by subdivision
(b)(1) is missing and cannot be readily ascertained by the court.
(§ 1170.95, subd. (b)(2).)
Subdivision (c)—the provision at issue in this appeal—provides:
“The court shall review the petition and determine if the petitioner has

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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.”
(§ 1170.95, subd. (c).)
The remainder of the statute sets forth the procedure for
responding to, and the hearing on, the order to show cause, as well as
post-hearing matters.
C. Defendant’s Contentions
Defendant contends the trial court erred and violated his federal
and state constitutional rights by summarily denying his section
1170.95 petition, and that the error was prejudicial. We conclude there
was no error or violation of constitutional rights, but even if there was,
any such error was harmless.
1. Asserted Statutory Error From the Summary Denial of the
Petition Before Appointment of Counsel and Briefing
The issue whether the summary denial by a trial court of a section
1170.95 petition before the appointment of counsel is permitted under
the statute has been addressed by several courts and is currently before
our Supreme Court. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137-

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1140 (Lewis), rev. granted, S260598, March 18, 2020; People v.
Cornelius (2020) 44 Cal.App.5th 54, 58 (Cornelius), rev. granted,
S260410, March 18, 2020; People v. Verdugo (2020) 44 Cal.App.5th 320
(Verdugo), rev. granted, S260493, March 18, 2020.) We find the
analysis in Verdugo particularly persuasive. As that court explained,
“the relevant statutory language, viewed in context, makes plain the
Legislature’s intent to permit the sentencing court, before counsel must
be appointed, to examine readily available portions of the record of
conviction to determine whether a prima facie showing has been made
that the petitioner falls within the provisions of section 1170.95—that
is, a prima facie showing the petitioner may be eligible for relief
because he or she could not be convicted of first or second degree
murder following the changes made by [S.B.] 1437 to the definition of
murder in sections 188 and 189.” (Verdugo, supra, 44 Cal.App.5th at p.
323; see also Lewis, supra, 43 Cal.App.5th at pp. 1137-1140; Cornelius,
supra, 44 Cal.App.5th at p. 58.)
In reaching this conclusion, the Verdugo court noted that
subdivision (b)(2) of section 1170.95 provides for an initial review to
determine the facial sufficiency of the petition, while subdivision (c)
“then prescribes two additional court reviews before an order to show
cause may issue.” (Verdugo, supra, 44 Cal.App.5th at p. 328.) The first
of those is “made before any briefing to determine whether the
petitioner has made a prima facie showing he or she falls within section
1170.95—that is, that the petitioner may be eligible for relief—and a

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second after briefing by both sides to determine whether the petitioner
has made a prima facie showing he or she is entitled to relief.” (Ibid.)
The court observed that the first prima facie review of the petition
under subdivision (c) of section 1170.95 “must be something more than
simply determining whether the petition is facially sufficient; otherwise
given subdivision (b)(2), this portion of subdivision (c) would be
surplusage.” (Verdugo, supra, 44 Cal.App.5th at pp. 328-329.) But the
court noted that “the prebriefing determination whether the petitioner
has made a prima facie showing he or she ‘falls within the provisions of
this section’ must also be different from the postbriefing prima facie
showing the petitioner ‘is entitled to relief,’ required for issuance of an
order to show cause, if only in the nature and extent of materials
properly presented to the court in connection with the second prima
facie step, or else the two prima facie showings specified in subdivision
(c) would be redundant.” (Id. at p. 329.) The court concluded that “[t]he
midpoint between section 1170.95, subdivision (b)(2)’s initial finding the
petition is facially sufficient and subdivision (c)’s second prima facie
showing the petitioner is entitled to relief is a preliminary review of
statutory eligibility for resentencing, a concept that is a well-
established part of the resentencing process under Propositions 36 and
47. [Citations.] The court’s role at this stage is simply to decide
whether the petitioner is ineligible for relief as a matter of law, making
all factual inferences in favor of the petitioner.” (Ibid.)
Addressing the process by which the court is to conduct the first
review under section 1170.95, subdivision (c), the Verdugo court found
that “subdivisions (a) and (b) of section 1170.95 provide a clear

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indication of the Legislature’s intent. As discussed, subdivision (b)(2)
directs the court in considering the facial sufficiency of the petition to
access readily ascertainable information. The same material that may
be evaluated under subdivision (b)(2)—that is, documents in the court
file or otherwise part of the record of conviction that are readily
ascertainable—should similarly be available to the court in connection
with the first prima facie determination required by subdivision (c). . . .
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. The record of conviction might also
include other information that establishes the petitioner is ineligible for
relief as a matter of law because he or she was convicted on a ground
that remains valid notwithstanding [S.B.] 1437’s amendments to
sections 188 and 189. . . . [¶] Because the court is only evaluating
whether there is a prima facie showing the petitioner falls within the
provisions of the statute, however, if the petitioner’s ineligibility for
resentencing under section 1170.95 is not established as a matter of law
by the record of conviction, 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 pp. 329-330.)
With regard to the timing of the appointment of counsel for
defendant, the Verdugo court found that “[t]he structure and grammar
of [subdivision (c) of section 1170.95] indicate the Legislature intended

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to create a chronological sequence: first, a prima facie showing [the
first sentence of the subdivision]; thereafter, appointment of counsel for
petitioner [the second sentence]; then, briefing by the parties [the third
sentence].” (Verdugo, supra, 44 Cal.App.5th at p. 332.) The court noted
that it would not “make sense as a practical matter to appoint counsel
earlier in the process since counsel’s first task is to reply to the
prosecutor’s response to the petition. 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. Of course, if the
petitioner appeals the superior court’s summary denial of a
resentencing petition, appointed counsel on appeal can argue the court
erred in concluding his or her client was ineligible for relief as a matter
of law.” (Id. at pp. 332-333.)
We agree with the Verdugo court’s analysis. Thus, we find the
trial court in this case did not violate section 1170.95 by conducting an
initial prima facie review under subdivision (c) before appointing
counsel for defendant and receiving briefing.
Nor did the court err in finding that defendant was not eligible for
relief under section 1170.95 as a matter of law. As noted, S.B. 1437 did
not change the felony murder rule as it applies to the actual killer. In
this case, although defendant was convicted of murder under the felony
murder rule, the jury found that defendant personally used a gun in the
commission of the murder. Since the victim died of gunshot wounds,

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and there was evidence of only one gun being used,5 the jury necessarily
found that defendant was the actual killer. Therefore, as a matter of
law, defendant was not eligible for resentencing under section 1170.95.
(§ 189, subd. (e)(1).)
2. Asserted Constitutional Error
Defendant asserts violations of his right to the assistance of
counsel and his right to due process under the state and federal
constitutions.
First, he contends the determination whether his petition states a
prima facie case for relief is a critical stage of the criminal proceeding,
for which the Sixth Amendment to the United States Constitution and
article I, section 15 of the California Constitution guarantee defendant
the right to counsel. But as our Supreme Court explained, proceedings
under a statutory enactment that entitles an inmate to petition for
resentencing to reduce, recall, or vacate a sentence do not implicate the
Sixth Amendment, because a finding that the inmate is not eligible for
resentencing “does not increase the petitioner’s sentence; it simply
leaves the original sentence intact.” (People v. Perez (2018) 4 Cal.5th
1055, 1064; see also Dillon v. United States (2010) 560 U.S. 817, 828-
829.)
5 We note there had been testimony that defendant told detectives
during his initial interview that it was Tolliver who approached the driver’s
side of the truck, opened the door, and shot Arambula. But given the jury’s
finding that defendant personally used a firearm in the commission of the
murder, it is clear the jury disbelieved defendant’s statement.

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For the same reason, these proceedings do not implicate article I,
section 15 of the California Constitution, despite its more expansive
scope. Under our state constitution, a criminal defendant’s right to
counsel extends to “critical” stages of the criminal process, which “can
be understood as those events or proceedings in which the accused is
brought in confrontation with the state, where potential substantial
prejudice to the accused’s rights inheres in the confrontation, and where
counsel’s assistance can help to avoid that prejudice.” (Gardner v.
Appellate Division of Superior Court (2019) 6 Cal.5th 998, 1004-1005.)
But a proceeding initiated by a criminal defendant who has been
convicted and sentenced, in which the court must determine whether
the record of conviction shows that the convicted defendant may be
eligible for a sentence reduction is not a proceeding that subjects an
“accused” to potential substantial prejudice to his or her rights. Thus,
the summary denial of a section 1170.95 without the appointment of
counsel does not violate the California Constitution.
Defendant’s second constitutional argument is based upon the due
process rights found in the federal and state constitutions. He argues
that a court violates a criminal defendant’s due process rights if it
deprives that defendant of a liberty interest without due process of law,
and that section 1170.95 creates a liberty interest in having counsel
appointed and in having the opportunity to file additional briefing
before the court decides whether to issue an order to show cause. He
also argues that his due process rights were violated because the
minute order for the hearing at which the court extended its time to
rule on defendant’s petition and the minute order for the in-chambers

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proceeding in which the court issued its memorandum of decision both
indicate that the prosecutor was present, while defendant was neither
present nor represented by counsel. He contends that, by holding
proceedings in which prosecution was the only party participating, the
trial court violated due process by converting a legislatively sanctioned
adversarial process into an ex parte process.
As to defendant’s first argument, as discussed in section C.1, ante,
there was no such liberty interest created by section 1170.95. Rather,
the statute specifically contemplates that the trial court must
determine, before appointment of counsel or briefing, whether the
record of conviction shows that the petitioner falls within the provisions
of the statute. With regard to defendant’s second argument, it does not
appear that the prosecutor played any role in the proceedings. The
reporter’s transcript of the extension hearing shows the prosecutor did
not say a word. And at the in-chambers proceeding (where there was no
court reporter present), the minute order does not indicate that the
prosecutor offered any argument; it appears that the court simply
issued its ruling. But even if the prosecutor’s mere presence at those
proceedings in the absence of defendant or counsel for defendant was
improper, any error was harmless under any standard because the
jury’s findings establish that defendant was the actual killer, and thus
he was ineligible for relief under section 1170.95 as a matter of law.
//
//
//

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
COLLINS, J.

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