Filed 1/7/20
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                             DIVISION SIX


THE PEOPLE,                                2d Crim. No. B296605
                                          (Super. Ct. No. F268843)
     Plaintiff and Respondent,           (San Luis Obispo County)

v.

HAROLD TED CORNELIUS,

     Defendant and Appellant.


                A jury convicted Harold Ted Cornelius of second
degree murder (Pen. Code,1 §§ 187, subd. (a), 189, subd. (b)) and
found true allegations that he personally used a firearm (former
§ 12022.5, subd. (a)(1)) and that he personally and intentionally
discharged a firearm causing death (§ 12022.53, subd. (d)). The
trial court sentenced him to 40 years to life in state prison.
Following the enactment of Senate Bill No. 1437, Cornelius filed
a petition for resentencing pursuant to section 1170.95. The trial
court denied his petition.



        1   Further unspecified statutory references are to the Penal
Code.
             Cornelius argues the trial court erred when it denied
his petition for resentencing without first appointing counsel. We
affirm.
           FACTUAL AND PROCEDURAL HISTORY
             In 1998, Cornelius fatally shot his brother after an
argument. The jury convicted Cornelius of second degree murder
and found true the firearm allegations. The trial court sentenced
him to 40 years to life in state prison. Cornelius appealed the
conviction, arguing instructional error, an error in applying the
firearm enhancement, and an error in presentence custody
credits. We affirmed. (People v. Cornelius (June 20, 2000,
B129641) [nonpub. opn.].)2
             Following the enactment of Senate Bill No. 1437,
Cornelius filed a petition for resentencing pursuant to section
1170.95. He requested appointment of counsel for resentencing.
             The trial court did not appoint counsel and denied
Cornelius’s petition. The court found Cornelius was not eligible
for resentencing “because he was convicted of second degree
murder by a jury that also found he personally used and
discharged a firearm in the commission of the murder within the
meaning of [section 12022.53 and former section 12022.5,
subdivision (a)(1)].” The court observed that section 1170.95,
subdivision (a), applies to a person convicted of felony murder or
murder under a natural and probable consequences theory;
however, “Petitioner was not convicted” of either crime. Based on
the verdict, the trial transcript and the prior appeal, the court
found that Cornelius “failed to make a prima facie showing that
he falls within the provisions of” section 1170.95.

      2 We  grant respondent’s unopposed request to take judicial
notice of our prior opinion. (Evid. Code, §§ 452, subd. (d), 459.)


                                2
                            DISCUSSION
              Senate Bill No. 1437 was enacted to “amend the
felony murder rule and the natural and probable consequences
doctrine, . . . 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 of the underlying felony who
acted with reckless indifference to human life.” (Stats. 2018, ch.
1015, § 1, subd. (f).) Senate Bill No. 1437 achieves these goals by
amending section 188 to require that a principal act with express
or implied malice and by amending section 189 to state that a
person can only be liable for felony murder if (1) the “person was
the actual killer”; (2) the person was an aider or abettor in the
commission of murder in the first degree; or (3) the “person was a
major participant in the underling felony and acted with reckless
indifference to human life.” (§ 189, subd. (e), as amended by
Stats. 2018, ch. 1015, §§ 2, 3.)
              Senate Bill No. 1437 added section 1170.95, which
allows a “person convicted of a felony murder or murder under a
natural and probable consequences theory [to] file a petition with
the court that sentenced the petitioner to have the petitioner’s
murder conviction vacated and to be resentenced on any
remaining counts.” (§ 1170.95, subd. (a).) To file the petition, all
three of the following conditions must be met: “(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 or second
degree murder following a trial . . . . [¶] (3) The petitioner could
not be convicted of first or second degree murder because of
changes to [s]ection 188 or 189.” (Ibid.) The petition shall




                                 3
include a declaration stating that “he or she is eligible for relief
under this section” based on the three requirements of
subdivision (a). (§ 1170.95, subd. (b)(1).)
              Section 1170.95, subdivision (c), sets forth the process
for the trial court’s review of the petition. The trial 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. . . . 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.” (§
1170.95, subd. (c).)
              Here, Cornelius filed a section 1170.95 petition in
which he requested counsel. But he was ineligible for relief
because he was not convicted of felony murder or murder as an
aider or abettor under a natural and probable consequences
theory. (§ 1170.95, subd. (a)(3).) The jury convicted him of
second degree murder and found true that he personally and
intentionally used a firearm to commit the crime. Thus, the jury
implicitly found Cornelius was the “actual killer,” and the
changes to sections 188 and 189 are inapplicable.
              Despite his ineligibility, Cornelius contends the trial
court was statutorily required to appoint counsel pursuant to
section 1170.95, subdivision (c), once he alleged that he satisfied
the filing requirements for the petition, regardless of whether the
allegations are accurate. We reject his contention where, as here,
he is indisputably ineligible for relief. (Cf. People v. Shipman
(1965) 62 Cal.2d 226, 232 [appointment of counsel not required in
writ of coram nobis proceedings, where after examination of




                                  4
allegations “in light of any matter of record” there are no
“adequate factual allegations stating a prima facie case”].)
                           DISPOSITION
             The judgment is affirmed.
             CERTIFIED FOR PUBLICATION.




                                     TANGEMAN, J.
We concur:



             YEGAN, Acting P. J.



             PERREN, J.




                                 5
                  Craig B. Van Rooyen, Judge

           Superior Court County of San Luis Obispo

                ______________________________


            Allison H. Ting, under appointment by the Court of
Appeal, for Defendant and Appellant.

            Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Amanda V. Lopez and
Nicholas J. Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
