P. v. DeGroff

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Filed 7/17/20 P. v. DeGroff 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
MATTHEW DEGROFF,
Defendant and Appellant.
C089753
(Super. Ct. No. 07F00393)
In 2009 a jury found defendant Matthew DeGroff guilty of second degree murder
(Pen. Code, § 187, subd. (a)),1 and found true the allegations that he intentionally and
personally discharged a firearm proximately causing the death of his victim (§ 12022.53,
subd. (d)) and personally used a firearm (§ 12022.5, subd. (a)(1)). We affirmed the
resulting conviction in 2011. (People v. DeGroff (June 13, 2011, C062211) [nonpub.
1 Further undesignated statutory references are to the Penal Code.

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opn.].)2 In our prior opinion, we explained that the jury found defendant guilty of murder
“for shooting and killing his girlfriend in the home they lived in together,” after
defendant testified that he “fired [a] gun twice” at the victim. (DeGroff, supra, C062211
[at pp. 1, 10].)
In 2019 defendant filed a petition for resentencing under newly enacted section
1170.95. The trial court found defendant ineligible for relief in a brief written order,
entered without eliciting any response from the People or holding a hearing.
Defendant timely appealed and now contends the trial court erred by denying the
petition without first appointing counsel. We disagree, and therefore affirm the trial
court’s order.
LEGAL BACKGROUND
Senate Bill No. 1437 and Section 1170.95
“Under prior California law, a defendant who aided and abetted a crime, the
natural and probable consequence of which was murder, could be convicted not only of
the target crime but also of the resulting murder. (People v. Chiu (2014) 59 Cal.4th 155,
161.) This was true irrespective of whether the defendant harbored malice aforethought.
Liability was imposed ‘ “for the criminal harms [the defendant] . . . naturally, probably,
and foreseeably put in motion.” [Citations.]’ (Id. at pp. 164-165, italics omitted.)” (In re
R.G. (2019) 35 Cal.App.5th 141, 144.)
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018
Reg. Sess.). Senate Bill No. 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
2 We grant the People’s request that we take judicial notice of our opinion affirming the
judgment of conviction and sentence in defendant’s direct appeal. (Evid. Code, §§ 459,
subd. (a) [“The reviewing court may take judicial notice of any matter specified in
Section 452”], 452, subd. (d) [permitting a court to take judicial notice of records of “any
court of this state”].)

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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).) Effective January 1,
2019, the legislation amended sections 188 and 189 and added section 1170.95 to the
Penal Code.
Senate Bill No. 1437 “redefined ‘malice’ in section 188. Now, to be convicted of
murder, a principal must act with malice aforethought; malice can no longer ‘be imputed
to a person based solely on [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)”
(In re R.G., supra, 35 Cal.App.5th at p. 144.)
The new section 1170.95 permits those convicted of felony murder or murder
under the natural and probable consequences doctrine to petition the sentencing court to
vacate the conviction and to be resentenced on any remaining counts where: “(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 or accepted a plea offer in lieu of a trial at which
the petitioner could be convicted for first degree or second degree murder. [¶] (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).)
Once a complete petition is filed, section 1170.95, subdivision (c) sets out the trial
court’s responsibilities: “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. . . . 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.”

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PROCEDURAL BACKGROUND
Defendant’s Petition to Vacate Conviction
In February 2019 defendant filed a petition to vacate his conviction pursuant to
section 1170.95 and attached a declaration, the abstract of judgment of his underlying
conviction, and jury instructions from his trial. In his petition, defendant stated (1) a
complaint, information, or indictment was filed against him that allowed the prosecution
to proceed under a theory of felony murder or murder under the natural and probable
consequences doctrine, (2) at trial, he was convicted of first or second degree murder
pursuant to the felony murder rule or the natural and probable consequences doctrine, and
(3) he could not be convicted of first or second degree murder under the changes to
sections 188 and 189. Defendant also requested the trial court appoint counsel for him
“during th[e] re-sentencing process.”
The record on appeal does not show that the prosecution responded substantively
to defendant’s petition.
Trial Court Order
In May 2019 the trial court summarily denied defendant’s petition. The court
concluded that defendant did “not show[ ] that he falls within the provisions” of section
1170.95. First, the trial court explained that defendant “was convicted . . . solely on a
malice aforethought theory,” as “[n]o jury instruction was given on either a felony-
murder or a natural and probable consequences doctrine theory.” Second, the trial court
ruled that “according to” our prior opinion, “the evidence shows that defendant . . . was
the only perpetrator and had himself admitted shooting the victim.” Thus, the trial court
concluded defendant “[was] not eligible for any relief under” section 1170.95.
Defendant filed a timely appeal from the trial court’s order denying his petition.

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DISCUSSION
I
Summary Denial of Section 1170.95 Petition Without Appointment of Counsel
Defendant contends the trial court erred by summarily denying his petition before
appointing counsel. He argues that because his petition “met the statutory requirement of
eligibility for relief, the trial court erred by failing to appoint counsel and conduct a
hearing on the allegations of the petition.” (Fn. omitted.) His petition met the statutory
requirements, defendant maintains, because of the “assertion that he was convicted under
the doctrine of natural and probable consequences,” which assertion “was supported by”
the jury instruction on murder with malice aforethought that defendant attached to his
petition (and which was used at his trial). That instruction (CALCRIM No. 520),
defendant observes, “provides that the defendant may be convicted of second degree
implied malice murder if (1) he intentionally committed an act, (2) ‘[t]he natural
consequences of the act were dangerous to human life,’ (3) the defendant knew his act
was dangerous to human life, and (4) he deliberately acted with conscious disregard for
human life.” (Italics added.)
Because “there was no requirement that the jurors be unanimous on the theory of
murder liability, and there is nothing in the record that suggests that the verdict was based
on express rather than implied malice murder,” defendant argues, the jury verdict in the
underlying prosecution “could have been based on” the natural and probable
consequences doctrine.
The People argue defendant was not convicted of second degree murder under the
natural and probable consequences doctrine, because “[t]he words ‘natural consequences’
in the jury instruction on malice does not employ the natural and probable consequences
doctrine, despite the use of similar language.” And because defendant was “indisputably
ineligible for relief under section 1170.95, the trial court was under no obligation to
appoint counsel, review briefing or conduct a hearing on [defendant’s] unmeritorious

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claim.” Requiring appointment of counsel “where a petitioner has simply stated each
[statutory] requirement, whether true or not, would exalt form over substance,” the
People maintain.
The People also argue that any error by the trial court in failing to appoint counsel
was harmless.
We conclude the trial court properly denied the petition without first appointing
counsel or conducting a hearing, because the record of conviction demonstrates as a
matter of law, that defendant (1) was not convicted pursuant to the natural and probable
consequences doctrine, and (2) defendant was the “actual killer.” Accordingly, we need
not consider the parties’ arguments regarding harmless error and prejudice.
A. Standard of Review
“Because this contention involves a question of statutory construction, our review
is de novo. [Citation.] Under settled canons of statutory construction, in construing a
statute we ascertain the Legislature’s intent in order to effectuate the law’s purpose.
[Citation.] We must look to the statute’s words and give them ‘their usual and ordinary
meaning.’ [Citation.] ‘The statute’s plain meaning controls the court’s interpretation
unless its words are ambiguous.’ [Citations.] ‘If the statutory language permits more
than one reasonable interpretation, courts may consider other aids, such as the statute’s
purpose, legislative history, and public policy.’ [Citation.]” (Imperial Merchant
Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387-388.)
B. Analysis
Two recently published cases concluded that section 1170.95, subdivision (c)
requires the trial court to make two separate prima facie determinations: one before
appointing counsel and receiving briefing, and one after those procedural steps have been
taken. (See People v. Verdugo (2020) 44 Cal.App.5th 320, 327-329, review granted
Mar. 18, 2020, S260493 (Verdugo); People v. Lewis (2020) 43 Cal.App.5th 1128, 1137,
review granted Mar. 18, 2020, S260598 (Lewis).) We agree.

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“The first sentence of section 1170.95, subdivision (c), directs the court to review
the petition and determine if the petitioner has made the requisite prima facie showing.
The second sentence provides, if the petitioner has requested counsel, the court must
appoint counsel to represent him or her. The third sentence requires the prosecutor to file
and serve a response to the petition within 60 days of service of the petition and permits
the petitioner to file a reply to the response. The structure and grammar of this
subdivision indicate the Legislature intended to create a chronological sequence: first, a
prima facie showing; thereafter, appointment of counsel for petitioner; then, briefing by
the parties. ([Lewis], supra, 43 Cal.App.5th at pp. 1139-1140 [‘[w]hen 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’]; [Citations.]”
(Verdugo, supra, 44 Cal.App.5th at p. 332, rev. granted, italics added.)
Thus, if a petitioner does not make a prima facie showing that he or she “falls
within the provisions of” section 1170.95, the trial court may deny the petition summarily
without first appointing counsel or holding a hearing.
Here, the trial court correctly ruled that defendant did not make a prima facie
showing that he fell within the provisions of section 1170.95, because the record of
conviction (including our prior opinion) demonstrated without a doubt that defendant was
not “convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the
natural and probable consequences doctrine.”3 (§ 1170.95, subd. (a)(2).)
3 Contrary to defendant’s assertion that our prior opinion, while “useful . . . is not the
record of the trial itself,” we agree with other courts that, when considering section
1170.95 petitions, trial courts can indeed rely on a reviewing court’s opinion as part of
the record of the underlying conviction. (See Lewis, supra, 43 Cal.App.5th at p. 1138
[permitting the trial court to consider its file and the record of conviction before
appointing counsel in a section 1170.95 proceeding is “sound policy” “ ‘when even a
cursory review of the court file would show as a matter of law that the petitioner is not

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This is so because, “[c]ontrary to defendant’s suggestion, the use of the term
‘natural consequences’ in the CALCRIM No. 520 definition of implied malice does not
import into the crime of murder the case law relating to the distinct ‘natural and probable
consequences’ doctrine developed in the context of aiding and abetting liability.”
(People v. Martinez (2007) 154 Cal.App.4th 314, 334, italics added.)
Indeed, application of the natural and probable consequences doctrine to defendant
would have been nonsensical, as “culpability under the natural and probable
consequences doctrine is vicarious” (People v. Chiu, supra, 59 Cal.4th at p. 164) and
when the defendant is the sole perpetrator, his or her liability for a crime is, by definition,
not vicarious. (See People v. Covarrubias (2016) 1 Cal.5th 838, 901 [“The natural and
probable consequences doctrine applies . . . to aiders and abettors and conspirators”];
People v. Mendoza (1998) 18 Cal.4th 1114, 1123 [“The actual perpetrator must have
whatever mental state is required for each crime charged” but “the aider and abettor is
guilty not only of the intended, or target, offense, but also of any other crime the direct
perpetrator actually commits that is a natural and probable consequence of the target
offense”].)
Furthermore, the trial court correctly denied the petition on the independent
ground that defendant was the “only perpetrator” of the murder, and therefore ineligible
for section 1170.95 relief because he was the “actual killer.” (Stats. 2018, ch. 1015, § 1,
subd. (f).) (See People v. Cornelius (2020) 44 Cal.App.5th 54, 58 [“The jury convicted
[defendant] of second degree murder and found true that he personally and intentionally
used a firearm to commit the crime,” thereby “implicitly [finding] [defendant] was the
eligible for relief’ ”], rev. granted; Verdugo, supra, 44 Cal.App.5th at p. 333, rev.
granted.)
Thus, the trial court properly considered our prior opinion when it denied defendant’s
petition.

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‘actual killer,’ ” rendering “the changes to sections 188 and 189 . . . inapplicable”],
review granted Mar. 18, 2020, S260410.)
DISPOSITION
The order denying defendant’s petition is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
BLEASE, J.
/s/
MURRAY, J.

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