P. v. Hall

Filed 4/29/20 P. v. Hall CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
KOEPPEL HALL,
Defendant and Appellant.
B302462
(Los Angeles County
Super. Ct. No. BA289736)
APPEAL from an order of the Superior Court of Los Angeles
County, Stephen A. Marcus, Judge. Affirmed.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________

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Defendant Koeppel Hall filed a petition in the superior court
for resentencing under Penal Code section 1170.95 and requested
the appointment of counsel.1 The court found that defendant had
failed to allege facts necessary for relief under that statute and
was not eligible for relief as a matter of law because he had not
been convicted of murder. The court denied the petition without
appointing counsel for defendant or holding an evidentiary hearing.
Defendant appealed.
Defendant’s counsel filed a brief pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende), raising no issues on appeal and
requesting that we independently review the record to determine
if the lower court committed any error. Defendant filed a
supplemental brief in which he argues that section 1170.95
should apply to convictions for attempted murder and that holding
otherwise violates his right to equal protection. We reject these
arguments and affirm the court’s order.
FACTUAL AND PROCEDURAL SUMMARY
In 2007 a jury convicted defendant of nine counts of
premeditated, deliberate attempted murder, shooting at a motor
vehicle, shooting from a motor vehicle, and being a felon in
possession of a firearm. (People v. Hall (Jan. 15, 2009, B199214)
[nonpub. opn.] (Hall).)2 The jury also found certain enhancement
allegations true. (Ibid.) The court sentenced him to 60 years to life
in prison. (Ibid.) We affirmed his convictions in an unpublished
opinion filed in January 2009. (Ibid.)
1 Unless otherwise specified, subsequent statutory references
are to the Penal Code.
2 We take judicial notice of our opinion in Hall, supra,
B199214. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

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On October 8, 2019, defendant filed a petition for
resentencing under section 1170.95. He used a preprinted form
with checkboxes, but did not mark the appropriate checkboxes for
alleging that he had been charged with murder, that he had been
convicted of murder or had pled guilty in lieu of going to trial at
which he could have been convicted of murder, and that he could
not now be convicted of first or second degree murder because of the
recent changes made to sections 188 and 189.
In a declaration filed in support of the petition, defendant
stated that he had been convicted of aiding “Nelson Banks of
attempted [m]urder.” Defendant stated that he was driving a truck
when, “to [his] surprise[,] Mr[.] Banks fired at” another vehicle.
He did not intend “for this to happen.”
In another supporting document, defendant states that a
complaint had been filed against him “that allowed the prosecution
to proceed under a theory of attempted premeditated murder.” He
further states that he was not a “major participant” in the crime
“and did not act with reckless indifference to human life.”
On October 28, 2019, the trial court denied defendant’s
petition. The court stated that defendant failed to check the boxes
on the form of the petition that, if checked, would have constituted
allegations that he “was prosecuted under a felony murder theory
or a murder theory based on natural and probable consequences
doctrine.” Defendant also failed to allege “that he was convicted of
[first] or [second] degree murder.”
The court further stated that it reviewed defendant’s
“file and has determined that he has not been convicted of [first]
or [second] degree murder. [¶] Instead, [defendant] has been
convicted of nine counts of premeditated, deliberate attempted
murder, of shooting at a motor vehicle, of shooting from a motor
vehicle and of being a felon unlawfully in possession of a firearm.”

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The court concluded: “The petition is summarily denied
because the petitioner is not entitled to relief as a matter of law,
for the following reason[ ]: [¶] The petitioner was not convicted of
murder.”
Defendant filed a timely notice of appeal on November 18,
2019.
Defendant’s counsel filed a brief pursuant to Wende, supra,
25 Cal.3d 436, sent a copy of the brief to defendant, and informed
defendant that he may personally file a supplemental brief within
30 days raising any points he chooses to call to the court’s attention.
Defendant subsequently filed a supplemental brief raising issues,
which we address below.
DISCUSSION
Defendant argues that section 1170.95 should apply
to convictions for attempted murder. Every court that has
considered this issue has rejected it. (See People v. Lopez (2019)
38 Cal.App.5th 1087, 1105, review granted Nov. 13, 2019, S258175
(Lopez); People v. Munoz (2019) 39 Cal.App.5th 738, 754, review
granted Nov. 26, 2019, S258234 (Munoz); People v. Larios (2019)
42 Cal.App.5th 956, 970, review granted Feb. 26, 2020, S259983;
People v. Medrano (2019) 42 Cal.App.5th 1001, 1017–1018, review
granted, Mar. 11, 2020, S259948.) We agree with these decisions
on this point and therefore reject defendant’s argument.
Defendant further argues that applying section 1170.95
to people convicted of murder and failing to apply the statute to
those, such as himself, who were convicted of attempted murder
would raise “serious equal protection concerns.” We agree with
the courts that have considered and rejected similar arguments.
(See Munoz, supra, 39 Cal.App.5th at pp. 760–769; Lopez, supra,
38 Cal.App.5th at pp. 1110–1112; see also People v. Cervantes
(2020) 44 Cal.App.5th 884, 888 [denying section 1170.95 procedure

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to persons convicted of voluntary manslaughter does not violate
equal protection].)
Lastly, defendant argues that the court erred by denying him
counsel and a hearing on his petition. The right to counsel under
section 1170.95, however, does not attach unless and until the
petitioner makes a prima facie showing of eligibility under the
statute (People v. Lewis (2020) 43 Cal.App.5th 1128, 1139–1140,
review granted Mar. 18, 2020, S260598), and the right to a hearing
requires a further prima facie showing that he is entitled to relief
(People v. Verdugo (2020) 44 Cal.App.5th 320, 328, review granted
Mar. 18, 2020, S260493). Defendant did not make either showing.
Based on our review of the record and the applicable law,
we are satisfied that defendant’s counsel has fully complied with
his responsibilities and that no arguable appellate issue exists.
(Wende, supra, 25 Cal.3d at p. 441; People v. Kelly (2006) 40 Cal.4th
106, 110.)

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DISPOSITION
The order denying defendant’s petition for resentencing is
affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
WEINGART, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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