P. v. Graham

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Filed 2/28/20 P. v. Graham CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
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THE PEOPLE,
Plaintiff and Respondent,
v.
TERRENCE ANDREW GRAHAM,
Defendant and Appellant.
C089323
(Super. Ct. Nos. SF111544A,
STKCRFE20096385)
Defendant Terrence Andrew Graham appeals the trial court’s order denying his
petition for resentencing pursuant to Penal Code section 1170.95 (unless otherwise stated,
statutory section references that follow are to the Penal Code), arguing that the trial court
was statutorily prohibited from summarily denying his petition after determining that he
failed to establish a prima facie case that he fell within the provisions of the statutory
scheme. He contends a trial court must appoint counsel and allow the parties to file

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responsive pleadings before determining whether a defendant has satisfied the prima
facie criteria for resentencing.
We conclude the trial court did not err in summarily denying defendant’s petition
and affirm.
FACTS AND PROCEEDINGS
Following the 2009 killing of Ralph Dillingham, defendant was charged with first
degree murder (§ 187) during a robbery (§ 190.2, subd. (a)(17)(A)) while personally
using a deadly weapon, a knife (§ 12022, subd. (b)(1)). He was further charged with
second degree robbery and attempted second degree robbery with the personal use of a
knife attached to both offenses.
In September 2010, defendant pleaded guilty to second degree murder in exchange
for dismissal of the robbery special circumstance allegation as well as all other charges
and alleged enhancements. The parties stipulated that the preliminary hearing transcript
could serve as the factual basis for the plea. In November 2010, defendant was sentenced
on the second degree murder conviction to 15 years to life in prison.
On January 25, 2019, defendant filed a form petition pursuant Senate Bill No.
1437 and section 1170.95 for resentencing on the murder conviction. In the petition,
defendant averred that a complaint or information had been filed against him that allowed
the prosecution to proceed under a theory of felony murder or murder under the natural
and probable consequences doctrine, and that he pleaded guilty to first or second degree
murder in lieu of going to trial because he believed he could have been convicted for first
or second degree murder at trial under the felony murder rule or the natural and probable
consequences doctrine; he did not specify in the petition which theory applied.
According to the petition, he could not now be convicted of first or second degree murder
based on changes made to sections 188 and 189, which became effective January 1, 2019.
He requested that the court appoint him counsel in the resentencing proceeding.

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On April 9, 2019, the trial court summarily denied the petition without first
appointing defendant counsel as requested. The court found defendant had failed to make
a prima facie showing that he was eligible for resentencing given the facts of his
conviction, which the court recounted as follows:
In April 2009, defendant waited for a car to leave a minimart before he entered the
store at nearly 2:00 a.m. wearing a mask and dark clothing and carrying a knife. He
ordered the clerk to open the register and give him the money. The clerk--Ralph
Dillingham--went behind the register and grabbed a pipe; a struggle between defendant
and Dillingham ensued. Dillingham grabbed at defendant’s knife while defendant
grabbed the pipe, ultimately disarming Dillingham. Dillingham then went to the cash
register and withdrew the cash. While bending over to place the cash in a shopping bag,
Dillingham collapsed to the ground. Defendant reached over, took the money, and left.
Dillingham was later found by another customer and transported to the hospital where he
was declared dead. After examining Dillingham’s body, the coroner found that he
suffered an acute heart attack during, and as a result of, the robbery.
Based on the facts of defendant’s offense, the court found that “[t]here [was] no
question that [defendant] ‘was a major participant in the underlying felony’ and that he
‘acted with reckless indifference to human life.’ ” Thus, defendant could have been
convicted of first degree murder despite the newly-enacted changes to sections 188 and
189, and, therefore, he was not entitled to resentencing under Senate Bill No. 1437 and
section 1170.95.
DISCUSSION
Defendant contends the trial court erred by summarily denying his petition without
following procedures which he claims newly enacted section 1170.95 mandates. In his
view, section 1170.95 does not permit a court to preliminarily determine whether a
defendant meets the statute’s prima facie criteria. Instead, upon receiving a section

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1170.95 petition, the trial court must first appoint counsel, if requested, and permit the
parties to file responsive pleadings before determining whether the defendant has stated a
prima facie case of eligibility. We disagree.
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on
January 1, 2019, revised the felony-murder rule in California “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).) The bill amended
section 188, which defines malice, and section 189, which defines the degrees of murder
to address felony-murder liability; it also added section 1170.95, which provides a
procedure by which those convicted of murder can seek retroactive relief if the changes
in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015,
§§ 2-4; People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417; People v. Lewis
(2020) 43 Cal.App.5th 1128, 1133 (Lewis).)
Section 1170.95, subdivision (c) provides: “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 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.”
To make a prima facie showing, all three of the following conditions must 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.

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“(2) The petitioner was convicted of first degree or second degree murder
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder.
[And]
“(3) The petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (a).)
As relevant here, section 189 was amended to include new subdivision (e), which
provides: “(e) A participant in the perpetration or attempted perpetration of a [robbery]
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.”
(Stats. 2018, ch. 1015, § 3.)
The parties here dispute the meaning of section 1170.95, subdivision (c).
Defendant, as explained above, argues that the trial court cannot make a preliminary
determination of whether a petitioner has made a prima facie showing under the statute
until it appoints counsel and receives briefing from the parties. The People, on the other
hand, argue that section 1170.95 authorizes a trial court to determine whether a petitioner
has made the necessary prima facie showing that he or she falls within the provisions of
section 1170.95 before appointing counsel and holding a hearing on the petition.
The People have the better argument. Interpreting the statute as defendant urges
would render the first sentence of subdivision (c), which provides that “[t]he court shall
review the petition and determine if the petitioner has made a prima facie showing that

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the petitioner falls within the provisions of this section,” mere surplusage. (See Delaney
v. Superior Court (1990) 50 Cal.3d 785, 799 [“a construction that renders a word
surplusage should be avoided”]; see also People v. Woodhead (1987) 43 Cal.3d 1002,
1010 [“It is a settled axiom of statutory construction that significance should be attributed
to every word and phrase of a statute, and a construction making some words surplusage
should be avoided”].)
When interpreting statutory language, moreover, we do not examine language in
isolation but consider the context of the statutory framework as a whole. (Bruns v. E-
Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) “When the statutory framework
is, overall, chronological, courts will construe the timing of particular acts in relation to
other acts according to their location within the statute; that is, actions described in the
statute occur in the order they appear in the text.” (Lewis, supra, 43 Cal.App.5th at
pp. 1139-1140, citing KB Home Greater Los Angeles, Inc. v. Superior Court (2014)
223 Cal.App.4th 1471, 1477 [statutory scheme’s sequential structure supports
interpretation that acts required by the statute occur in the same sequence].) Applying
this principle to section 1170.95, subdivision (c), the trial court must first determine
whether a petitioner has made a prima facie showing that he or she “falls within the
provisions” of the statute before appointing counsel, receiving briefs and then
determining whether the petitioner has made “a prima facie showing that he or she is
entitled to relief.” (§ 1170.95, subd. (c); Lewis, at p. 1140.)
We note, as Lewis recognized, “[i]t is not clear from the text of subdivision (c)
what, if any, substantive differences exist between ‘the prima facie showing that the
petitioner falls within the provisions of [section 1170.95],’ which is referred to in the first
sentence of subdivision (c), and the ‘prima facie showing that [the petitioner] is entitled
to relief,’ [which is] referred to in the last sentence of the subdivision.” (Lewis, supra,
43 Cal.App.5th at p. 1140, fn. 10.) Like in Lewis, we need not decide this issue because
once the court properly concluded that defendant did not come within the provisions of

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the statute, defendant necessarily was not entitled to relief, as a matter of law, based on
the factual basis supporting his plea.
As other courts have recognized, “[a] prima facie showing of eligibility triggers
the trial court’s obligation to issue an order to show cause and either hold a hearing, give
the parties an opportunity [to] waive a hearing and stipulate to eligibility, or ‘[i]f there
was a prior finding by a court or jury that the petitioner did not act with reckless
indifference to human life or was not a major participant in the felony, the court shall
vacate the petitioner’s conviction and resentence the petitioner.’ ” (People v. Ramirez
(2019) 41 Cal.App.5th 923, 929, citing § 1170.95, subds. (c), (d)(1) & (d)(2).) That is,
only after the trial court determines that a petitioner has made a sufficient prima facie
showing that he or she “falls within the provisions” of the statute is briefing done and a
hearing held where the prosecution “has the burden to prove beyond a reasonable doubt[]
that [a] petitioner is ineligible for resentencing.” (Ramirez, at p. 929; § 1170.95, subd.
(d)(3).) Where the court concludes that the petitioner does not fall within the provisions
of the statute, no purpose would be served by proceeding to the next stages (appointment
of counsel, response by the prosecutor, order to show cause), and summary denial of the
petition without a hearing is proper. Indeed, “ ‘[i]t would be a gross misuse of judicial
resources to require the issuance of an order to show cause or even appointment of
counsel based solely on the allegations of the petition, which frequently are erroneous,
when even a cursory review of the court file would show as a matter of law that the
petitioner is not eligible for relief.’ ” (Lewis, supra, 43 Cal.App.5th at p. 1138.)
Here, the trial court properly found that the facts underlying defendant’s guilty
plea to second degree murder established beyond a reasonable doubt that he killed
Dillingham. (Lewis, supra, 43 Cal.App.5th at p. 1138 [trial court can consider record of
conviction, including prior appellate court opinion, in making initial determination of
whether a defendant falls within the provisions of section 1170.95]; People v. Holmes
(2004) 32 Cal.4th 432, 436 [counsel can stipulate that preliminary hearing transcript

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constitutes the factual basis for a defendant’s plea].) As the “actual killer”--and the only
person involved in the robbery that caused Dillingham’s death--defendant did not fall
within section 1170.95’s resentencing provision because he clearly could be convicted of
first or second degree murder under section 189 as amended by Senate Bill No. 1437.
(§ 189, subd. (e).) That the trial court found defendant was a major participant in the
robbery that acted with reckless indifference to human life rather than the actual killer is
of no moment. A correct decision will not be reversed on appeal merely because it is
given for the wrong reason. If the decision is correct for any reason, it must be affirmed,
regardless of the reasons that may have moved the trial court to its ruling. (People v.
Zapien (1993) 4 Cal.4th 929, 976.)
Nor are we persuaded by defendant’s argument that he should have been given the
opportunity to prove he was not the actual killer because there was an insufficient causal
connection between the victim’s heart attack and his felonious conduct during the
robbery. As the People note, defendant already had the chance to litigate the issue of
whether his violent acts and Dillingham’s fatal heart attack were merely coincidental.
Instead, he chose to plead guilty to second degree murder thereby conclusively admitting
that he killed Dillingham and relieving the prosecution of its burden to prove every
element of the charged offense beyond a reasonable doubt. (People v. Nance (1991)
1 Cal.App.4th 1453, 1456-1457.) Specifically, his plea relieved the prosecution of
proving that his actions were a “substantial factor” in Dillingham’s death, and admitted
that they were. (People v. Briscoe (2001) 92 Cal.App.4th 568, 584.)
Defendant’s reliance on the drug diversion statute is equally unavailing. That the
language employed in the two different statutory scheme varies does not mean that
section 1170.95, subdivision (c)’s plain language does not authorize the trial court to
conduct a preliminary review, especially where the statute specifically directs the trial
court to “review the petition” and “determine if the petitioner has made a prima facie

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showing that the petitioner falls within the provisions of this section.” (§ 1170.95, subd.
(c).)
Because the trial court properly determined that defendant had failed to state a
prima facie case that he fell within the provisions of section 1170.95, it did not violate
defendant’s due process rights by summarily denying the petition. The trial court did not
fail to follow the procedures mandated by section 1170.95.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
ROBIE, J.
BUTZ, J.

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