P. v. Fielder

Filed 1/19/21 P. v. Fielder CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
ROBERT FIELDER, JR.,
Defendant and Appellant.
B305966
(Los Angeles County
Super. Ct. No. GA051505)
APPEAL from an order of the Superior Court of Los
Angeles County. Teri Schwartz, Judge. Affirmed.
David Y. Stanley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Charles S. Lee, Deputy
Assistant Attorney General, and Heidi Salerno, Deputy Attorney
General, for Plaintiff and Respondent.
__________________________

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Robert Fielder appeals the trial court’s summary denial of
his petition for resentencing on his second degree murder
conviction pursuant to Penal Code section 1170.95,1 a provision
added by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats.
2018, ch. 1015) (SB 1437). We affirm.
BACKGROUND
In 2015, Fielder pled guilty to the second degree murder of
Elvia Romero and was sentenced to 15 years to life. (§ 187, subd.
(b)(1); § 186.22, subd. (b)(1).) He filed a form section 1170.95
petition on February 6, 2020, declaring he was neither a direct
aider and abettor in the murder nor a major participant who
acted with reckless indifference to human life. He failed to check
a box stating he was not the actual killer.
He attached two letters to his petition. One was a 2005
letter written by a deputy district attorney requesting secure
housing for Fielder. In it, she explained Fielder “admitted he
shot Elvia Romero” at the direction of fellow gang members.
Romero died of a heart attack after being shot in the hip and leg.
Fielder testified against a codefendant in a separate trial.
The second letter was stamped received by the Board of
Parole Hearings on September 14, 2016. It was submitted by one
of the two detectives assigned to Fielder’s case. She explained
the circumstances leading up to the shooting, and said the victim
“Elvia [Romero] grabbed on to Fielder and he fired a shot which
entered her knee.” She died of a heart attack she suffered during
the shooting. The detective said during Fielder’s plea proffer, “he
admitted shooting Elvia Romero” and agreed to testify truthfully
1 Undesignated statutory citations refer to the Penal Code.

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at his codefendant’s trial. According to the detective, he did, in
fact, testify truthfully in that trial.
The trial court denied Fielder’s section 1170.95 petition
without appointing him counsel or holding a hearing. It
explained: “On January 31, 2015, [Fielder] entered a plea of
guilty for the second degree murder of Elvia Romero as part of an
agreed upon disposition with the prosecution. He admitted
shooting the victim in a later trial of his co-defendant. [¶]
[Fielder] has not demonstrated eligibility for relief pursuant to
[section 1170.95, subd. (c)], because he has not made a prima
facie showing that he falls within the provisions of the statute.”
DISCUSSION
Effective January 1, 2019, SB 1437 addressed “certain
aspects of California law regarding felony murder and the
natural and probable consequences doctrine by
amending . . . sections 188 and 189” and by adding “section
1170.95, which provides a procedure by which those convicted of
murder can seek retroactive relief if the changes in law would
affect their previously sustained convictions. (Stats. 2018, ch.
1015, §§ 2–4.)” (People v. Martinez (2019) 31 Cal.App.5th 719,
722–723 (Martinez).) In short, SB 1437 “was enacted 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).)”
(Martinez, at p. 723.)
Section 1170.95 creates a multi-step procedure for a
defendant to petition for resentencing pursuant to SB 1437.

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A defendant may petition for resentencing if he or she was
“convicted of felony murder or murder under a natural and
probable consequences theory” and the following conditions are
met: “(1) A charging document 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 or second
degree murder following trial or an accepted plea; and (3) The
petitioner could ‘not be convicted of first or second degree murder
because of changes to Section[s] 188 or 189’ made by Senate Bill
No. 1436. (§ 1170.95, subd. (a).) [¶] Under section 1170.95,
subdivision (b), the petition must include: a declaration from the
petitioner that he or she is eligible for relief under the statute,
the superior court’s case number and year of conviction, and a
statement as to whether the petitioner requests appointment of
counsel. (§ 1170.95, subd. (b)(1).) If any of the required
information is missing and cannot ‘readily [be] ascertained by the
court, the court may deny the petition without prejudice to the
filing of another petition.’ (§ 1170.95, subd. (b)(2).)” (People v.
Lewis (2020) 43 Cal.App.5th 1128, 1135–1136 (Lewis), rev.
granted, Mar. 18, 2020, S260598.)
Section 1170.95, subdivision (c) sets forth the procedure
once the defendant files a complete petition: “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

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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.”
Should the court issue an order to show cause, it must hold
a hearing to determine whether to vacate the murder conviction.
(§ 1170.95, subd. (d).) If the court vacates the murder conviction,
the court must resentence the defendant on the remaining
counts, or if no target offense was charged, “the petitioner’s
[murder] conviction shall be redesignated as the target offense or
underlying felony for resentencing purposes.” (§ 1170.95, subd.
(d)(3), (e); see Lewis, supra, 43 Cal.App.5th at pp. 1136–1137.)
We follow the cases interpreting section 1170.95,
subdivision (c) to permit a trial court to summarily deny a
petition without appointing counsel when the defendant fails to
make a prima facie showing of eligibility for resentencing.
(People v. Falcon (2020) 57 Cal.App.5th 272, 276 [citing cases].
In doing so, the court may consider the record of conviction.
(Ibid.)
Fielder contends the trial court improperly engaged in
judicial factfinding at the prima facie stage by considering his
testimony from his codefendant’s trial, which was not part of his
record of conviction. (See, e.g., People v. Drayton (2020) 47
Cal.App.5th 965, 980 (Drayton) [court may not engage in
factfinding at prima facie stage of section 1170.95 review].)
We disagree. There is no indication the trial court actually
reviewed or considered any records from the separate trial or
engaged in any judicial factfinding. Instead, in the 2005 letter
Fielder submitted with his petition, the deputy district attorney
explained Fielder admitted he shot Romero and agreed to testify
truthfully at his codefendant’s trial, which he did. The trial court

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could have inferred his “truthful” testimony included his
admission he shot Romero without examining the trial transcript
from the codefendant’s trial.
If Fielder is suggesting the trial court erred in considering
the letters he presented, he invited the error by submitting them
as part of his petition. As exhibits attached to Fielder’s petition,
we presume he adopted the facts set forth in the letters as true.
(See Drayton, supra, 47 Cal.App.5th at p. 980 [presuming facts
set forth in section 1170.95 petition are true]; see also People v.
Garcia (2020) 57 Cal.App.5th 100, 112, (Garcia) [trial court
properly considered prior appellate opinion in part because
“the opinion was attached as ‘Exhibit A’ to appellant’s petition”].)
Fielder cannot now claim the court was barred from considering
exhibits he submitted to support his prima facie case for
resentencing. (See People v. Flinner (2020) 10 Cal.5th 686, 723,
[defendant “cannot claim error in admission of evidence he
elicited”].)
Nor does Fielder contend the factual statements in the
letters were inaccurate. He argues a factual dispute existed
because the letters stated Romero died of a heart attack during
the shooting, not from the gunshot wounds. He does not explain
how that demonstrates he lacked the intent to kill or transforms
the basis for his plea into either felony murder or aiding and
abetting on a natural and probable consequences theory of
murder eliminated by SB 1437. He is simply urging the court to
relitigate the causation element of the murder case against him.
(See Garcia, supra, 57 Cal.App.5th at p. 105 [In passing SB 1437,
“the legislature surely did not intend that appellant would be
entitled to an evidentiary hearing to retry the underlying
criminal case against him.”].)

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Finally, if the court engaged in improper judicial
factfinding, any error was harmless. (People v. Daniel (2020) 57
Cal.App.5th 666, 678 [applying reasonable probability standard
to assess section 1170.95 error].) Nothing suggested the
prosecution intended to pursue felony murder or aiding and
abetting based on natural and probable consequences. Fielder
was charged with first degree murder with malice aforethought,
along with special circumstances of gang murder and murder by
means of lying in wait, both of which required intent to kill.
(§ 190.2, subds. (a)(15), (22).) He was also charged with
conspiracy to commit murder, and as part of the overt acts of the
conspiracy, it was alleged Fielder and his coconspirators went to
Romero’s house intending to kill her granddaughter. They
dragged Romero out of the house and shot her. Both letters
Fielder submitted with his petition confirmed he was the shooter.
He failed to check the box in his form petition saying he was not
the actual killer. If Fielder was to be tried and convicted, it
would have been on a theory of murder that remained valid after
SB 1437. He was not entitled to resentencing as a matter of law.
DISPOSITION
The order is affirmed.
BIGELOW, P. J.
We Concur:
STRATTON, J. WILEY, J.

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