Filed 8/18/20 P. v. Menefee CA2/4
         NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR


THE PEOPLE,                                                    B297701

         Plaintiff and Respondent,                             (Los Angeles County
                                                               Super. Ct. No. BA239920)
         v.

CHRIS CURTIS MENEFEE

         Defendant and Appellant.


      APPEAL from an order of the Superior Court of
Los Angeles County, Mildred Escobedo, Judge. Affirmed.
      Matthew Alger, 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, Assistant
Attorney General, Idan Ivri and J. Michael Lehmann, Deputy
Attorneys General, for Plaintiff and Respondent.
                          INTRODUCTION
       Appellant Chris Curtis Menefee was convicted of first
degree murder in 2004. In 2019, he filed a petition to vacate his
conviction under Penal Code section 1170.95.1 The court
appointed appellant counsel and ordered the parties to brief the
issue. The trial court denied appellant’s petition on the grounds
that 1170.95 was unconstitutional, and in the alternative,
because based on the parties’ briefs and the facts of the case,
appellant did not establish that he was eligible for relief.
Appellant appealed.
       We affirm. Appellant argues, and the Attorney General
concedes, that the trial court erred in finding section 1170.95
unconstitutional. We agree that the court’s holding on that basis
was erroneous. Appellant also asserts that because his petition
made a prima facie showing of entitlement to relief, the trial
court erred by denying the petition without first issuing an order
to show cause and holding an evidentiary hearing. We find no
error; the trial court followed the appropriate procedures.
Appellant does not challenge the trial court’s finding that he is
ineligible for relief under section 1170.95 based on the facts of the
underlying conviction. We therefore affirm the court’s denial of
appellant’s petition.
       FACTUAL AND PROCEDURAL BACKGROUND
A.     Underlying conviction
       According to our previous unpublished decision in this case,
People v. Menefee (Nov. 8, 2005, B177829 [nonpub. opn.])
(Menefee), appellant was convicted of the willful, deliberate, and

      1Allfurther statutory references are to the Penal Code
unless otherwise indicated.




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premeditated murder of Tyzell Carter. (§ 187, subd. (a).)
Appellant, codefendant Cedrick Deion Broussard,2 and victim
Carter belonged to the “Playboy Gangster Crip gang.” Taniesha
Prescott, an associate of the gang who was in a relationship with
appellant, testified that members of the gang called Carter a
“buster,” meaning that Carter had switched allegiance to another
gang. An older member of the gang had reprimanded Carter and
put out a call for a hit on him. In April 2002, Carter was found
dead of multiple gunshot wounds.
       Appellant told Prescott that he and Broussard killed
Carter. Prescott also overheard appellant and Broussard
discussing the murder; appellant said he told Broussard to “finish
him off.” Broussard responded that when Carter took off
running, “[h]e ran behind him, and he did finish him.” (Menefee,
supra, B177829.) Prescott also testified she overheard appellant
tell others that he killed Carter. (Ibid.)
       At trial in July 2004, the jury found appellant guilty of
murder, and “found true the special allegations that a principal
had used a firearm that caused great bodily injury and death (§
12022.53, subds. (b), (c), (d), (e), (e)(1)), but found not true the
allegations that appellant had so used a firearm.” (Menefee,
supra, B177829.) We affirmed the judgment. (Ibid.)
B.     Appellant’s petition to vacate his conviction
       In Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437),
the Legislature amended “‘the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder, to


      2Appellant  and Broussard were charged together, but the
trial court severed appellant and Broussard’s trials. (Menefee,
supra, B177829.)




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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.’” (People v. Lamoureux (2019)
42 Cal.App.5th 241, 247 (Lamoureux).) In SB 1437 the
Legislature also enacted section 1170.95, which allows a “person
convicted of felony murder or murder under a natural and
probable consequences theory [to] file a petition . . . to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts” under certain conditions. (§ 1170.95,
subd. (a).) These changes became effective on January 1, 2019.
       On January 3, 2019, appellant filed a petition to vacate his
conviction under section 1170.95. He checked the box on the form
stating that he had been convicted of first or second degree
murder pursuant to the felony murder rule or the natural and
probable consequences doctrine. He also checked the boxes
stating that he was not the actual killer, he did not aid or abet
the actual killer, he was not a major participant in the felony,
and he did not act with reckless indifference to human life.
Appellant requested that counsel be appointed for him.
       On January 15, 2019, the trial court issued an order
appointing counsel for appellant. The court also established a
schedule for the prosecution and defense to file briefs, and set a
hearing “to determine, including but not limited to, whether a
prima facie showing by the defendant has been made and
whether the court will issue an OSC hearing date.”
       The Los Angeles County District Attorney (the People) filed
a memorandum and supplemental memorandum asserting that
appellant’s petition should be denied because section 1170.95 was
unconstitutional. The People also asserted that appellant was




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ineligible for relief based on the crime, asserting, “[Appellant]
was convicted of willful, deliberate, and premediated murder—
first degree murder. The jury found the gang allegation to be
true. The review of the evidence at trial by the Court of Appeal
[in Menefee, supra], showed that [appellant] made admissions
about killing the victim.” The People asserted that therefore, “no
prima facie showing of eligibility has been established.”
       Appellant filed a reply memorandum and supplemental
memorandum asserting that section 1170.95 was constitutional.
He also argued that the jury found not true the allegation that
appellant personally used a firearm.3 Appellant also contended,
“the jury heard the evidence, of [appellant’s] statement, yet it
found false the allegations that [appellant] personally used a
firearm. Hence, that evidence cannot show that [appellant] has
failed to make a prima facie case that he was not the actual
killer. Given that the jury made no express finding either that
[appellant] aided and abetted the killer with the intent to kill or
that he acted with reckless indifference to human life, then
clearly [appellant] has made a prima facie case that he could not
be convicted of first degree murder under current law, and hence
is eligible for a resentencing hearing.” Appellant asserted that
“the evidence that the People cite is not relevant to whether
[appellant] has made a prima facie case,” and the court was
required to issue an order to show cause and schedule a hearing.


      3The  People stated in its response memorandum that the
jury found true the allegation that appellant personally
discharged a firearm, causing the victim’s death. (§ 12022.53,
subd. (d).) The People later acknowledged in its supplemental
memorandum that this was incorrect.




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       At a hearing on March 11, 2019, the court stated that the
hearing was “to make a determination as to whether this case
should proceed to O.S.C.” The court said it had read the parties’
briefs, and “also reviewed the remittitur [in] the file, the
sentencing, the preliminary hearing, and the jury instructions.”
The court stated that it agreed with the People that section
1170.95 was unconstitutional, and the application should be
denied on that basis.
       The court continued, stating that “if hypothetically” the
statute were found to be constitutional, the court would still deny
the petition. The court noted that the victim died of multiple
gunshot wounds, and “there’s two shots, one to the face and one
to the back. Both defendants were the shooters.” The court
stated, “According to the transcripts and everything that I’ve
reviewed, [appellant] tells Mr. Broussard, the co-defendant, after
[appellant] fires the first shot to the face, something to the effect
of ‘Go finish him off.’ [¶] Broussard then goes after him, finishes
him off. [¶] Both are the shooters. Both are in cahoots, for lack of
a better word, and both are major participants in the death. Both
had the intent to kill.” The court acknowledged the jury’s not
true finding on the allegation regarding personal use of a firearm,
and stated, “But the court can’t disregard the fact that even
though that wasn’t the case, there’s two shooters here.” The
court therefore found that appellant was a “major participant” in
the case.
       The People noted that it submitted the jury instructions4
from appellant’s trial to the court. The instructions clarified that

      4The  Attorney General attached the jury instructions to a
request for judicial notice on appeal, which we granted.




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the People “withdrew two key theories. They withdrew felony
murder jury instructions and they also withdrew natural [and]
probable consequences instructions, so those legal theories were
not presented . . . in trial and to the jury.” The court added that
there were “plenty of references in the remittitur”—possibly
referring to Menefee, supra—“that reflect that [appellant] was an
active participant” in the crime. The court therefore denied the
petition.
       Appellant timely appealed.
                             DISCUSSION
       Appellant asserts two arguments on appeal. First, he
contends that the trial court erred in holding that section 1170.95
is unconstitutional, and denying the petition on that basis. The
Attorney General concedes that appellant is correct. We agree.
In the months since the trial court’s ruling, section 1170.95 has
been held to be constitutional. (See People v. Solis (2020) 46
Cal.App.5th 762; Lamoureux, supra, 42 Cal.App.5th 241.) The
court’s denial of the petition on this basis was erroneous.
       Second, appellant asserts that the trial court erred by
denying his petition without issuing an order to show cause and
holding an evidentiary hearing. Appellant contends that “a
petitioner makes a prima facie showing that he is entitled to
relief when he alleges by a declaration in his petition that he is
eligible for relief based upon each of the three criterion set forth
in subdivision (a) of section 1170.95. That is what appellant did.”
He argues that because his petition made this prima facie
showing, the court was required to issue an order to show cause
under section 1170.95, subdivision (c). He asserts that the error
“adversely affected the framework of the petition procedure and




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denied appellant the process to which he was entitled,” so
“reversal is required.”
       Appellant’s argument fails to address the full process
required under section 1170.95. There are three phases of review
under section 1170.95 before a petitioner is entitled to issuance of
an order to show cause and an evidentiary hearing. First, there
must be an “initial finding the petition is facially sufficient”
under section 1170.95, subdivision (b)(2). (People v. Verdugo
(2020) 44 Cal.App.5th 320, 329, rev. granted, S260493, March 18,
2020 (Verdugo).) In this first phase, a “sentencing court may
deny a petition without prejudice if any of the information
required by subdivision (b)(1) is missing from the petition and
cannot be readily ascertained by the court.” (Id. at pp. 327-328;
see also § 1170.95, subd. (b)(2).) Second, under section 1170.95,
subdivision (c), the court completes “a preliminary review of
statutory eligibility,” before any briefing is filed, “to determine
whether the petitioner has made a prima facie showing he or she
falls within section 1170.95—that is, that the petitioner may be
eligible for relief.” (Verdugo, supra, 44 Cal.App.5th at p. 328;
§ 1170.95, subd. (c) [“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.”].) Third,
“after briefing by both sides,” the court assesses the petition,
briefing, and relevant case documents to “determine, with the
benefit of the parties’ briefing and analysis, whether the
petitioner has made a prima facie showing he or she is entitled to
relief.” (Verdugo, supra, 44 Cal.App.5th at p. 328, 330.)
Following the third phase, “[i]f 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).)




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       Here, appellant asserts he was entitled to have the court
issue an order to show cause and set an evidentiary hearing after
only the first phase of review. He asserts that “regardless of
whether the trial court believed appellant’s allegations, if he
made a prima facie showing on the face of his petition that he is
entitled to relief, the trial court was required to issue an order to
show cause and hold an evidentiary hearing.” Appellant
contends he was therefore entitled to a hearing “at which he
would have an opportunity to present evidence to prove the prima
facie showing that he had made in his petition.”
       As the Attorney General points out, however, “the mere
fact that a petition is facially sufficient under section 1170.95,
subdivision (b) does not satisfy either of the subsequent two
prima facie steps” under subdivision (c). We agree. Appellant
was not entitled to an order to show cause and an evidentiary
hearing based solely on his petition. Such a holding would
improperly render the language in section 1170.95, subdivision
(c), mere surplusage. (See Verdugo, supra, 44 Cal.App.5th at p.
328-329.)
       Appellant does not challenge any other aspect of the trial
court’s ruling, or assert that he is eligible for relief under section
1170.95 in light of the facts of the underlying case. We therefore
do not address the court’s substantive bases for finding that
appellant failed to demonstrate a prima facie case under section
1170.95, subdivision (c). The trial court did not err by denying
appellant’s petition without first issuing an order to show cause
or holding an evidentiary hearing.




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                       DISPOSITION
     The order denying appellant’s petition under section
1170.95 is affirmed.
  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                        COLLINS, J.

We concur:



MANELLA, P. J.



WILLHITE, J.




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