Filed 8/18/20 P. v. Davis CA2/7
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


THE PEOPLE,                                                B297654

         Plaintiff and Respondent,                         (Los Angeles County
                                                           Super. Ct. No. A086503)
         v.

MICHAEL CHARLES DAVIS,

         Defendant and Appellant.


      APPEAL from an order of the Superior Court of
Los Angeles County, Upinder S. Kalra, Judge. Reversed and
remanded with directions.
      Rachel Varnell, 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, Charles S. Lee and Kathy S. Pomerantz,
Deputy Attorneys General, for Plaintiff and Respondent.
                       INTRODUCTION

      Michael Charles Davis appeals from a postconviction order
summarily denying his petition for resentencing filed under
Penal Code section 1170.951 as to his first degree murder
conviction (§ 187, subd. (a)). On appeal Davis contends, the
People concede, and we agree the superior court erred in finding
Davis ineligible for relief without first appointing counsel to
represent him, ordering the prosecutor to file a response, and
allowing Davis (or his attorney) to file a reply. We reverse and
remand with instructions.

      FACTUAL AND PROCEDURAL BACKGROUND

A.    The Evidence at Trial
      This court described the evidence at trial as follows,
“Thaddeus Pracki was strangled to death. When discovered in
the hallway of his apartment, his nude body was face down, his
head in a pillow, his wrists tied to his ankles behind his back.
The 62-year-old victim had six broken ribs, four bite marks on his
right arm and numerous bruises and abrasions. His wallet and
credit cards were missing. There was no sign of forced entry.
About 15 hours earlier, he had been with the defendant and
others at Joly’s, a homosexual bar.” (People v. Davis (1987)
189 Cal.App.3d 1177, 1183 (Davis I), disapproved of by People v.
Snow (1987) 44 Cal.3d 216, 225-226.)




1    All further undesignated statutory references are to the
Penal Code.




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       An hour before Pracki’s body was discovered, Davis and a
companion attempted to make a purchase using Pracki’s credit
card. Davis also used Pracki’s credit card to purchase gas two,
three, or four times. Davis’s fingerprint was lifted from a knife
found at the crime scene. Davis admitted to a friend that “he had
killed an old gay guy that he and a friend took out of Joly’s with
the intent to rob.” (Davis I, supra, 89 Cal.App.3d at p. 1183.)
Davis testified he had arranged for Pracki and a “‘stud’” named
Shug to get together, then Davis left them and went elsewhere.
Shug paid Davis for the setup the next day with Pracki’s credit
card. According to Davis, the knife with his fingerprint was
taken from a pot of knives located where he was arrested. (Id. at
pp. 1183-1184.)

B.    The Information, Verdict, and Sentencing
      Davis was charged with first degree murder (§ 187,
subd. (a)) and robbery (§ 211). The information specially alleged
the killing occurred in the commission of a robbery (felony
murder) (§ 190.2, subd. (a)(17)). It also specially alleged the
murder was intentional and involved the infliction of torture
within the meaning of section 190.2, subdivision (a)(18). (Davis I,
supra, 89 Cal.App.3d at p. 1184.) The jury was instructed on
three theories of first degree murder: (1) willful, deliberate, and
premeditated murder; (2) felony murder in the perpetration of a
robbery; and (3) murder by torture. (Ibid.) The jury convicted
Davis of first degree murder and robbery, but it found the special
allegations were not true. (Ibid.) The trial court sentenced Davis
on the murder count to 25 years to life and imposed but stayed a
five-year term for the robbery under section 654. (Id. at p. 1183.)




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C.     Davis’s Appeal
       On appeal, Davis argued that because the jury found the
special allegations of felony murder and murder by torture not
true, it must have found him guilty of willful, deliberate, and
premeditated murder, for which there was insufficient evidence.
(Davis I, supra, 189 Cal.App.3d at p. 1184.) This court rejected
the argument, explaining for either special circumstance to be
true, the defendant must intend to kill or aid in the killing.
Therefore, “the jury might well have found that the killing
occurred in the commission of a robbery, [or] as a result of acts
done with the willful, deliberate and premeditated intent to
torture, i.e., to cause extreme and prolonged physical pain
[citation], or both, but was not intentional.” (Ibid.) This court
affirmed. (Id. at p. 1183.)

D.     Postconviction Proceedings
       On January 17, 2019 Davis, representing himself, filed a
petition with a supporting declaration in the superior court
stating he had met the requirements under section 1170.95 for
relief under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate
Bill 1437), including that (1) the information allowed the
prosecution to proceed under a theory of felony murder or the
natural and probable consequences doctrine; (2) he was convicted
of murder based on a theory of felony murder or the natural and
probable consequences doctrine; and (3) he could not be convicted
of first or second degree murder under changes to sections 188
and 189, effective January 1, 2019. With respect to his
affirmation he could not be convicted of first or second degree
murder under the 2019 amendments, Davis checked the box on
the form petition that he was not the actual killer, but he did not




                                 4
check the box stating he was not a direct aider and abetter who
acted with the intent to kill, nor did he check the box stating he
was not a major participant in the felony or did not act with
reckless indifference to human life. Davis requested the court
appoint him counsel and vacate his murder conviction.
       The People requested the court grant an extension of time
in which to file an informal response to Davis’s petition. The
record does not reflect whether the court granted an extension,
and the People did not file an informal response.
       On March 8, 2019 the superior court summarily denied
Davis’s petition in chambers, finding Davis had not made a prima
facie showing he fell within the provisions of section 1170.95.
The court did not appoint counsel for Davis, and Davis and the
prosecutor were not present. In its written order, the superior
court found Davis had failed to allege he did not intend to kill,
and likewise failed to allege he was not a major participant in the
robbery or did not act with reckless indifference to human life.
The court concluded from its review of the court file and this
court’s opinion in Davis I that Davis “cannot make ‘a prima facie
showing that petitioner falls within the provisions of this
section.’” The court explained, “Despite Petitioner’s protestations
to the contrary, the jury rejected Petitioner’s claim that he was
not the actual killer. In any event, under the facts of this case,
where the victim, a 62 year old man was hog tied, suffered six
broken ribs as well as numerous other injuries including bite
marks and abrasions, coupled with the jury’s finding that
Petitioner personally inflicted great bodily injury while
committing robbery, it appears that Petitioner was a major
participant in the felony, robbery, and acted with reckless
indifference to human life during the commission of that felony.




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The Court of Appeal implicitly made such a ruling when it found
that there was sufficient evidence to support the conviction.”

                          DISCUSSION

A.     Senate Bill 1437
       On September 30, 2018 Senate Bill 1437 (2017-2018 Reg.
Sess.) was signed into law, effective January 1, 2019. Senate Bill
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.” (Sen. Bill 1437
(2017-2018 Reg. Sess.) § 1; see People v. Verdugo (2020)
44 Cal.App.5th 320, 325 (Verdugo), review granted Mar. 18. 2020,
S260493; People v. Martinez (2019) 31 Cal.App.5th 719, 723
(Martinez).)
       New section 188, subdivision (a)(3), provides, “Except as
stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.” Senate Bill 1437 also added section
189, subdivision (e), which provides, “A participant in the
perpetration or attempted perpetration of a felony listed in
subdivision (a) 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




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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.”
       Senate Bill 1437 also provides a procedure in new section
1170.95 for an individual convicted of felony murder or murder
under a natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder under Senate Bill 1437’s changes to sections 188 and
189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4.) Section 1170.95,
subdivision (b)(1), provides that the petition “shall be filed with
the court that sentenced the petitioner.”2 The petition must
include a declaration by the petitioner stating he or she is eligible
for relief under the section, providing the superior court case
number and year of the conviction, and indicating whether he or
she requests the appointment of counsel. (§ 1170.95,
subd. (b)(1).)
       The Legislature intended for there to be a three-step
evaluation of a section 1170.95 petition. (Verdugo, supra,
44 Cal.App.5th at pp. 328, 332-333.) As we explained in Verdugo,
“If any of the required information is missing and cannot be
readily ascertained by the court, ‘the court may deny the petition
without prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.’ (§ 1170.95, subd. (b)(2).) [¶] If the petition
contains all required information, section 1170.95,


2     Judge Raymond Choate, who was the sentencing judge
(Davis I, supra, 189 Cal.App.3d 1177), passed away in 2005.




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subdivision (c), prescribes a two-step process for the court to
determine if an order to show cause should issue: ‘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 . . . and the petitioner
may file and serve a reply . . . . 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.’” (Verdugo, at p. 327.)
       After issuing an order to show cause, the trial court must
hold a hearing “to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts . . . .” (§ 1170.95,
subd. (d)(1).) If a hearing is held, “[t]he prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (§ 1170.95,
subd. (d)(3); see People v. Lewis (2020) 43 Cal.App.5th 1128,
review granted Mar. 18, 2020, S260598.)3 The prosecution has
the burden of proving beyond a reasonable doubt that the
petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)




3     The Supreme Court in People v. Lewis limited briefing and
argument to the following issues: “(1) May superior courts
consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under Penal Code section 1170.95? (2) When does the right to
appointed counsel arise under Penal Code section 1170.95,
subdivision (c)[?]” (Supreme Ct. Minutes, Mar. 18, 2020, p. 364;
People v. Lewis, supra, 43 Cal.App.5th 1128.)




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B.     The Superior Court Erred in Finding Davis Ineligible for
       Relief Without Appointing Counsel for Davis, Ordering the
       Prosecutor To File a Response, and Allowing Davis To File
       a Reply
       Davis contends, the People concede, and we agree the
superior court erred in finding Davis ineligible for relief under
section 1170.95 without first appointing counsel for Davis,
ordering the prosecutor to file a response, and allowing Davis or
his attorney to file a reply.
       To determine as part of the initial inquiry whether a
petitioner is eligible for relief on the basis he or she was convicted
of first or second degree murder under a charging document that
permitted the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
theory, “the court must at least examine the complaint,
information or indictment filed against the petitioner; the verdict
form or factual basis documentation for a negotiated plea; and
the abstract of judgment.” (Verdugo, supra, 44 Cal.App.5th at
pp. 329-330.) We added, “The record of conviction might also
include other information that establishes the petitioner is
ineligible for relief as a matter of law because he or she was
convicted on a ground that remains valid notwithstanding Senate
Bill 1437’s amendments to sections 188 and 189 (see § 1170.95,
subd. (a)(3))—for example, a petitioner who admitted being the
actual killer as part of a guilty plea or who was found to have
personally and intentionally discharged a firearm causing great
bodily injury or death in a single victim homicide within the
meaning of section 12022.53, subdivision (d).” (Id. at p. 330.)
       Davis stated in his declaration he was convicted of murder
based on the felony murder rule, which could not have supported




                                  9
a murder conviction under amendments to sections 188 and 189.4
In addition, the record reflects the jury was instructed on the
felony murder rule. (Davis I, supra, 189 Cal.App.3d at p. 1184.)
Unlike in Verdugo, supra, 44 Cal.App.5th at page 333, in which
the defendant’s conviction of conspiracy to commit murder proved
he had the intent to kill, Davis’s record of conviction does not
contain a disqualifying factor—the jury could have relied on the
felony murder doctrine in convicting Davis of murder.
(Cf. People v. Lewis, supra, 43 Cal.App.5th at p. 1138 [affirming
denial of § 1170.95 petition where Court of Appeal on direct
appeal had held “the record established that the jury found
defendant guilty beyond a reasonable doubt on the theory that he
directly aided and abetted the perpetrator of the murder”];
People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted


4      Although Davis did not check the boxes on the form
petition indicating he did not act with the intent to kill and was
not a major participant in the felony or act with reckless
indifference to human life during the course of the felony, the
form was not a judicial council form, and nowhere in the statute
does it require a petitioner make these specific statements.
Rather, to be eligible for relief, the petitioner must meet three
requirements: “(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).) Davis
declared in the petition he met all three requirements.




                                  10
Mar. 18, 2020, S260410 [affirming denial of § 1170.95 petition
where jury found the defendant was the actual killer by finding
true he personally and intentionally used a firearm to commit the
murder].)
        Contrary to the trial court’s ruling, this court did not
conclude in Davis I that Davis was the actual killer, stating to
the contrary, “the jury might well have found that the killing
occurred in the commission of a robbery . . . .” (Davis I, supra,
89 Cal.App.3d at p. 1184.) Davis therefore made an initial
showing that he falls within the provisions of the statute.
Accordingly, before proceeding to the third step of the three-part
inquiry, the superior court was required to appoint counsel for
Davis, order the prosecutor to serve a response, and allow Davis
to file a reply. (Verdugo, supra, 44 Cal.App.5th at p. 327.) Only
after considering the briefing of the parties should the superior
court have determined whether Davis had made a prima facie
showing he is entitled to relief. (Ibid.) Although a finding by the
superior court that Davis was a major participant in the robbery
and acted with reckless indifference to human life during the
commission of the murder would make him ineligible for relief
under section 1170.95 (see § 189, subd. (e)), the superior court
erred in making that determination without first appointing
counsel for Davis and considering the briefing by the parties.
        We remand for the superior court to appoint counsel for
Davis, to order the prosecutor to file a response, and to permit
Davis to file a reply. If Davis makes a prima facie showing he is
entitled to relief, the court shall issue an order to show cause and
conduct a hearing to determine whether to vacate Davis’s murder
conviction and resentence him on the remaining robbery count.
(Verdugo, supra, 44 Cal.App.5th at p. 323.)




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                         DISPOSITION

       We reverse the superior court’s order denying Davis’s
petition for resentencing and remand for the superior court to
appoint counsel for Davis, order the prosecutor to file a response
and to permit Davis to file a reply. If Davis makes a prima facie
showing he is entitled to relief, the court shall issue an order to
show cause and conduct a hearing to determine whether to
vacate Davis’s murder conviction and resentence him on the
remaining robbery count.



                                           FEUER, J.
We concur:



      PERLUSS, P. J.



      SEGAL, J.




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