P. v. Ama

Filed 7/16/20 P. v. Ama 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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.
JACOB AMA,
Defendant and Appellant.
B298078
(Los Angeles County
Super. Ct. No. A033363)
APPEAL from an order of the Superior Court of
Los Angeles County, Chet L. Taylor, Judge. Affirmed.
Emry J. Allen, 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 Assistant Attorney General, Michael R. Johnsen and
David W. Williams, Deputy Attorneys General, for Plaintiff and
Respondent.

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Appellant Jacob Ama was convicted of first degree murder.
(Pen. Code, § 187.)1 The jury found he “aided and abetted the
person who actually fired the gun.” He was sentenced to 26 years
to life in prison. This court affirmed the judgment in People v.
Ama (Jan. 24, 1990, B030972) [nonpub. opn.] (Ama I)).
Thirty years later, Ama petitioned for resentencing; he
requested appointed counsel. (§ 1170.95.) The trial court
summarily denied the petition, ruling that Ama is not entitled to
relief as a matter of law. The court was correct. The petition
shows, on its face, that Ama is ineligible for section 1170.95 relief.
As a result, he did not require appointed counsel before the court
denied his petition. We affirm.
FACTS AND PROCEDURAL HISTORY2
Background
Near midnight on March 9, 1986, police found Ralph Pettis
in his home, dead from a gunshot wound to his head from a .22-
caliber long rifle bullet. His inebriated wife, Joyce Pettis, was at
the home, in blood-smudged clothing. Ray Kelsch drove away as
officers approached the Pettis home. A dark gray powdery
substance like gunpowder residue was visible around a broken
pane of glass, and the victim’s wound bore marks that could be
caused by glass. The victim died between 4:30 and 10:30 p.m.
that day, based on his liver temperature. (Ama I, supra,
B030972.)
1 Unlabeled statutory references are to the Penal Code.
2 We take judicial notice of and recite facts from Ama I, as
did the trial court. (Evid. Code, §§ 452, subd. (d), 459, subd. (a);
In re Luke L. (1996) 44 Cal.App.4th 670, 674, fn. 3 [judicial notice
taken of a prior appeal in the same case].)

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A neighbor saw Mrs. Pettis and a Samoan or Black man
enter, then leave, the Pettis residence together between 3:00 and
4:00 p.m. on the day of the shooting. Pettis carried shoes and
clothing from her house into Kelsch’s house, located next door.
The neighbor greeted the man with Pettis; a week later, he
selected Ama’s photograph from a lineup and tentatively
identified him as the man he saw. In court, the neighbor said
Ama “could have been” the person with Pettis on March 9. On
the night of the shooting, another neighbor noticed Pettis and
Kelsch together, and saw a man who appeared to be Samoan
walking toward her. When he was 12 feet from her, he turned
around and walked in the opposite direction. (Ama I, supra,
B030972.)
Pettis, Kelsch, and Ama were arrested. Ama waived his
right to remain silent. In a recorded interview, he told police that
Kelsch introduced him to Pettis, who offered him $1,000 to
“snuff” her husband. After quibbling over the price, Ama
accepted a $200 down payment and promised to do the killing.
Two days later, Ama’s codefendants went to the home of Ama’s
cousin; they told him they wanted the money back, if Ama was
not going to do the job. A week later, codefendants saw Ama and
demanded to know when he was going to kill Mr. Pettis. Ama
replied that he would do it “when I get ready to” and had
“artillery.” (Ama I, supra, B030972.)
Ama told police he met Pettis at her residence, where she
suggested shooting her husband from outside, through a window.
During the meeting, Mr. Pettis arrived and an argument ensued.
Later, Ama told Kelsch and Pettis he would not do the shooting.
Pettis offered Ama more money for a gun; Ama left and returned
with a .22-caliber six-shot revolver. Pettis said she would use

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anything to kill her husband. Ama thought she was bluffing but
believed she was going to pay him more money for bringing her
the gun. A week later, Kelsch told Ama that Pettis shot her
husband. Ama instructed Kelsch to throw away the gun. (Ama I,
supra, B030972.)
Police searched the home of Ama’s cousin and found an
R.G. handgun similar to the one Ama described, loaded with .22-
caliber long rifle bullets. It is one of several firearms with rifling
characteristics consistent with those found on the bullet that
killed the victim. After her arrest, Pettis directed police to a
plastic milk jug in her garage containing a watch, a ring, and
$800 in cash. (Ama I, supra, B030972.)
Pettis and Kelsch pleaded guilty to second degree murder.
(Ama I, supra, B030972.) Ama declined the plea bargain, went to
trial and was convicted of first degree murder. The jury specially
found he aided and abetted the person who actually fired the gun.
(Ibid.)
This court affirmed. The opinion states, “There was ample
evidence of motive, planning and a particular and exacting
manner of killing to support a finding of premeditation and
deliberation,” and the evidence supported the jury’s special
finding that Ama intended to commit, encourage or facilitate the
murder as an aider and abettor. (Ama I, supra, B030972.)
The Resentencing Petition
In March 2019, Ama petitioned for resentencing. He
declared that he was convicted of murder “pursuant to the felony
murder rule or the natural and probable consequences doctrine”;
further, due to changes in the law he could not now be convicted
because “I was not the actual killer”; “I did not, with the intent to
kill, aid, abet, counsel, command, induce, solicit, request, or

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assist the actual killer in the commission of murder in the first
degree”; “I was not a major participant in the felony or I did not
act with reckless indifference to human life during the course of
the crime or felony”; and the victim was not a peace officer.
Exhibit A to Ama’s petition is the 1987 judgment of
conviction. It states that the jury convicted Ama of first degree
murder with a “Special Finding that [Ama] aided and abetted the
person who actually fired the gun.”
The court summarily denied the petition, stating that Ama
“was convicted of first degree murder and that he, with the intent
to kill, aided and abetted the actual killer in the commission of
murder.” He agreed to kill his codefendant’s husband, accepted
payment to commit the murder, and admittedly procured the
weapon and gave it to his codefendant. An eyewitness saw a
person matching Ama’s description at the crime scene with Joyce
Pettis around the time of the murder. A weapon similar to the
one Ama supplied for the murder was recovered at the home of
his cousin.
The postjudgment order denying appellant’s petition is
appealable. (§ 1237, subd. (b).)
DISCUSSION
The 2018 Murder and Resentencing Laws
In 2018, the Legislature amended state murder statutes
and authorized resentencing for past murder convictions. The
law changed the felony-murder rule and the natural and probable
consequences doctrine. (People v. Martinez (2019) 31 Cal.App.5th
719, 723.) Under the new law, persons are liable for murder if
they (1) are the actual killer; (2) are not the actual killer but
“with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the

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commission of murder in the first degree”; or (3) are a major
participant and acted with reckless indifference to human life.
(§ 189, subd. (e)(1)–(3).)
Resentencing is available if (1) the prosecution proceeded
under a felony-murder or a natural and probable consequences
theory; (2) the petitioner was convicted at trial or accepted a plea
in lieu of trial; and (3) the petitioner could not be convicted of
murder because of changes to the murder statutes. (§ 1170.95,
subd. (a)(1)–(3).)
The court “shall review the petition and determine if the
petitioner has made a prima facie showing that [he] 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 . . . . 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).) We interpret de novo the
statutory procedure. (People v. Prunty (2015) 62 Cal.4th 59, 71.)
Section 1170.95 creates a multistep process. The court first
determines if the petitioner is eligible for relief. To conserve
judicial resources, the court may examine the record of conviction
to determine if the petitioner falls within the provisions of section
1170.95. Next, if ineligibility cannot be determined as a matter
of law, the court must appoint counsel, direct the prosecutor to
respond to the petition and determine if the petitioner is entitled
to relief. (People v. Verdugo (2020) 44 Cal.App.5th 320, 323, 328–

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330 (Verdugo), review granted March 18, 2020, S260493; People v
Tarkington (2020) 49 Cal.App.5th 892, 900–901.)3
Ama’s Petition Proved His Ineligibility for Resentencing
Ama argues that the court was limited to “the four corners
of the petition to determine if [it] contained allegations which, if
true, would entitle [him] to relief.” The four corners of Ama’s
petition—including the 1987 judgment attached as exhibit A—
demonstrate ineligibility for resentencing. Exhibit A cites the
jury’s special finding that Ama “aided and abetted the person
who actually fired the gun.”
Exhibit A shows that Ama could be convicted of first degree
murder today, despite the 2018 changes to the murder statutes.
The finding that Ama “ ‘aided and abetted the premeditated
murder necessarily included a finding that he, not simply
[codefendant], specifically intended to inflict death’ ” even if he
was not the shooter. (Verdugo, supra, 44 Cal.App.5th at pp. 335–
336; § 189, subd. (e)(2).)
Ama marked a box on the petition stating, “I did not, with
the intent to kill, aid, abet, counsel . . . or assist the actual killer
in the commission of murder in the first degree.” This statement
is contradicted by exhibit A. Exhibit A, not the box marked on
Ama’s petition, is the best evidence of his conviction. (Evid. Code,
§ 1530 [a copy of a writing in the custody of a public entity is
prima facie evidence of the existence and content of the writing];
People v. Flores (2020) 44 Cal.App.5th 985, 990, 993 [petitioner
3 We recognize that the Supreme Court intends to address
whether the trial court may consider the record of conviction in
determining if a petitioner has made a prima facie showing of
eligibility. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137,
review granted Mar. 18, 2020, S260598.)

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checked a box stating she was convicted of murder but a plea
agreement showed a conviction for voluntary manslaughter,
which disqualified her for resentencing].)
In sum, Ama’s petition proves ineligibility for resentencing
as a matter of law. He is disqualified because he was convicted of
premeditated first degree murder, as an aider and abettor to the
actual killer. (§§ 189, subd. (e)(2), 1170.95, subd. (a)(3).) Because
the petition itself, without more, demonstrates ineligibility, the
court did not need to appoint counsel, issue an order to show
cause or demand a response from the prosecutor. (§ 1170.95,
subd. (c); People v. Torres (2020) 46 Cal.App.5th 1168, 1178,
review granted June 24, 2020, S262011.)4 Ama did not meet his
initial burden of pleading that section 1170.95 applies to him;
therefore, the burden of disproving his petition did not shift to
the prosecution. (Id., subd. (d)(3).) It is not reasonably probable
he would have obtained a more favorable result had counsel been
appointed. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Citing a statutory provision allowing introduction of new or
additional evidence at a hearing on the petition (§ 1170.95, subd.
(d)(3)), Ama asserts that appointed counsel could challenge the
evidence cited by the trial court. However, Ama is not eligible for
relief as a matter of law. He has not stated a prima facie case
and is not entitled to counsel under 1170.95, subdivision (c) or
under the Constitution. He tries to skirt this rule by challenging
the sufficiency of the evidence underlying his conviction, but we
already rejected an identical challenge in our prior appellate
opinion and that is now law of the case.
4 The Supreme Court intends to address when the right to
appointed counsel arises under section 1170.95. (People v. Lewis,
supra, 43 Cal.App.5th 1128, rev.gr.)

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The jury found that Ama aided and abetted a willful,
deliberate, and premeditated killing. (§ 189.) As stated in Ama I,
“There was ample evidence of motive, planning and a particular
and exacting manner of killing to support a finding of
premeditation and deliberation”; the evidence supported the
jury’s finding that Ama intended to commit, encourage or
facilitate the murder as an aider and abettor; and “[t]he jury was
free to disbelieve appellant’s self-serving statement to law
enforcement officers that he thought Pettis was ‘bluffing,’ and
infer from other circumstantial evidence that he procured the
murder weapon knowing of Pettis’ preconceived design to kill her
husband, and with the intent to facilitate her commission of that
offense.” (Ama I, supra, B030972.)
Ama is not entitled to have a court reject the jury
conviction and retry the facts, nor is he entitled to a different
appellate result. “Public confidence in the integrity of the judicial
system is threatened whenever two tribunals render inconsistent
verdicts.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 347.)
Displacing the jury’s 1987 determination of Ama’s culpability as a
direct aider and abettor “would undermine public confidence in
the judicial system.” (Ibid.)
Ama Does Not Have a Constitutional Right to Counsel
The constitutional right to counsel afforded by the Sixth
Amendment does not apply here. The right to counsel applies to
the trial and initial appeal. (Pennsylvania v. Finley (1987) 481
U.S. 551, 555.) It also applies if the court vacates the original
sentence and resentences the defendant. (People v. Rouse (2016)
245 Cal.App.4th 292, 296, 299–301.) It does not apply to a
postconviction petition showing that relief is unavailable as a
matter of law. (People v. Shipman (1965) 62 Cal.2d 226, 232.)

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Ama did not make an initial showing of eligibility to trigger his
right to counsel. (§ 1170.95, subd. (c).)
Ama’s due process rights were not abridged. The court
examined his petition, the judgment of conviction, and Ama I; it
determined that he is ineligible for relief as a matter of law. The
court followed a fair and orderly procedure. Because the right to
counsel is purely statutory, not constitutionally mandated, there
was no due process violation because Ama is ineligible for relief
under section 1170.95.
DISPOSITION
The order summarily denying the Penal Code section
1170.95 petition is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.

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