File 1/6/20
                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION ONE


THE PEOPLE,                               B295998

        Plaintiff and Respondent,         (Los Angeles County
                                          Super. Ct. No. TA117431)
        v.

VINCENT E. LEWIS,

        Defendant and Appellant.




       APPEAL from an order of the Superior Court of
Los Angeles County, Ricardo R. Ocampo, Judge. Affirmed.
       Robert Bacon, 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 Idan
Ivri, Deputy Attorneys General, for Plaintiff and Respondent.


                   ____________________________
      A jury convicted defendant Vincent E. Lewis of first degree
premeditated murder in 2012, and we affirmed the conviction in
2014. (People v. Lewis (July 14, 2014, B241236) [nonpub. opn.]
(Lewis).) 1 In January 2019, defendant filed a petition for
resentencing under Penal Code 2 section 1170.95 and requested
the appointment of counsel. The trial court, relying on our prior
decision in Lewis, found that defendant was ineligible for relief
and denied the petition without appointing counsel or holding a
hearing. Defendant appealed. For the reasons set forth below,
we affirm the order.

      FACTUAL AND PROCEDURAL BACKGROUND
       Defendant and two codefendants were tried for the murder
of a fellow gang member. One of the codefendants allegedly
fired the shots that killed the victim. The People prosecuted the
case against defendant on three alternative first degree murder
theories: direct aiding and abetting; aiding and abetting under
the natural and probable consequences doctrine; 3 and conspiracy.
The prosecutor argued to the jurors that the evidence could

      1 We have granted the Attorney General’s request to take
judicial notice of our 2014 opinion in Lewis, and defendant’s
request to take judicial notice of the record that was before us in
the prior appeal (case No. B241236).
      2   Subsequent statutory references are to the Penal Code.
      3 Under the natural and probable consequences doctrine, a
“ ‘person who knowingly aids and abets criminal conduct is guilty
of not only the intended crime . . . but also of any other crime the
perpetrator actually commits . . . that is a natural and probable
consequence of the intended crime.’ ” (People v. Medina (2009)
46 Cal.4th 913, 920.)




                                  2
support a verdict under each murder theory and that they did not
have to agree on the same theory to return a guilty verdict. The
court instructed the jury on each of the prosecution’s theories.
The jury convicted defendant of first degree premeditated murder
in a general verdict and made no findings that indicate which
murder theory it relied upon. The court sentenced defendant to
25 years to life.
       In his direct appeal, defendant asserted that the court
erred by instructing the jury that it could find him guilty of
premeditated first degree murder based on the natural and
probable consequences doctrine. The argument had merit. While
his appeal was pending, our Supreme Court decided People v.
Chiu (2014) 59 Cal.4th 155 (Chiu), which held that “an aider
and abettor may not be convicted of first degree premeditated
murder under the natural and probable consequences doctrine.
Rather, his or her liability for that crime must be based on direct
aiding and abetting principles.” (Id. at pp. 158–159.) 4 The error,
the court stated, requires reversal unless the reviewing court
concludes “beyond a reasonable doubt that the jury based its
verdict on the legally valid theory that defendant directly aided
and abetted the premeditated murder.” (Chiu, supra, 59 Cal.4th
at p. 167; see also In re Martinez (2017) 3 Cal.5th 1216, 1218.)
Although we agreed with defendant that it was error to give the
natural and probable consequences instruction, we held that the


      4  Chiu’s rationale was extended in People v. Rivera
(2015) 234 Cal.App.4th 1350 to preclude liability for first
degree premeditated murder based on a conspiracy theory.
(Id. at pp. 1356–1357; see People v. Lopez (2019) 38 Cal.App.5th
1087, 1102 (Lopez), review granted Nov. 13, 2019, S258175.)




                                 3
error was harmless “beyond a reasonable doubt” based on
“strong evidence” that defendant “directly aided and abetted
[the perpetrator] in the premeditated murder of [the victim].”
(Lewis, supra, B241236 at p. 19.) We rejected defendant’s other
arguments and affirmed the judgment. (Id. at p. 20.)
       In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which, among
other changes, amended section 188 to eliminate liability for
murder under the natural and probable consequences doctrine.
(Lopez, supra, 38 Cal.App.5th at pp. 1092–1093.) The legislation
also added section 1170.95, which establishes a procedure for
vacating murder convictions that were based upon the natural
and probable consequences doctrine and resentencing those who
were so convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677.)
       On January 7, 2019, defendant filed a petition in the
superior court for resentencing under section 1170.95. In
accordance with the statute, defendant identified the superior
court’s case number and the year of his conviction and stated
that he had been “convicted of [first or second] degree murder
pursuant to . . . the natural and probable consequences doctrine.”
Defendant further stated that, because of the changes made by
Senate Bill No. 1437, he “could not now be convicted” because
he “was not the actual killer” and “did not, with the intent to
kill, aid, abet, counsel, command, induce, solicit, request, or
assist the actual killer in the commission of murder in the first
degree.” Defendant also requested the court to appoint counsel
for him.




                                4
       On February 4, 2019, the trial court denied the
petition without appointing counsel for defendant or holding a
hearing. The court concluded that defendant was not eligible for
resentencing because, based on our opinion in Lewis, he “would
still be found guilty with a valid theory of first degree murder.”
       Defendant contends that the court erred by “going behind
[the] allegations” in his petition and relying on our prior opinion
to determine that he failed to make a prima facie showing of
eligibility under Senate Bill No. 1437. For the reasons given
below, we disagree.

                          DISCUSSION
      A.    Senate Bill No. 1437 and Section 1170.95
       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 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(f), p. 6674; see People v.
Martinez (2019) 31 Cal.App.5th 719, 723.) 5 The legislation
accomplished this in part by amending section 188 to require
that, when the felony murder rule does not apply, a principal
in the crime of murder shall act with malice aforethought, and
that “[m]alice shall not be imputed to a person based solely

      5Although Chiu abrogated the use of the natural
and probable consequences doctrine to prove first degree
premeditated murder, the doctrine was still applicable to
second degree murder. (Chiu, supra, 59 Cal.4th at p. 166.)




                                 5
on his or her participation in a crime.” (Stats. 2018, ch. 1015,
§ 2, p. 6675; In re R.G. (2019) 35 Cal.App.5th 141, 144.) 6 As a
result, the natural and probable consequences doctrine can no
longer be used to support a murder conviction. (Lopez, supra,
38 Cal.App.5th at p. 1103 & fn. 9; Stats. 2018, ch. 1015, § 1(f),
p. 6674.) The change did not, however, alter the law regarding
the criminal liability of direct aiders and abettors of murder
because such persons necessarily “know and share the murderous
intent of the actual perpetrator.” (People v. McCoy (2001)
25 Cal.4th 1111, 1118; see Chiu, supra, 59 Cal.4th at p. 167 [a
direct aider and abettor “acts with the mens rea required for first
degree murder”].) One who directly aids and abets another who
commits murder is thus liable for murder under the new law just
as he or she was liable under the old law.
       Senate Bill No. 1437 also added section 1170.95, which
permits a person convicted of murder under a natural and
probable consequences theory to petition the court to have the
murder conviction vacated and to be resentenced. (§ 1170.95,
subds. (a) & (e); Stats. 2018, ch. 1015, § 4, pp. 6675-6677).
Thus, section 1170.95 subdivision (a) provides that a person
convicted of felony murder or murder under a natural and
probable consequences theory may petition the trial court to
have his or her murder conviction vacated or be resentenced on


      6  The new law also amended section 189 by adding a
requirement to the felony-murder rule that a defendant who
was not the actual killer or a direct aider and abettor must have
been a “major participant” in the underlying felony who acted
with reckless indifference to human life. (Stats. 2018, ch. 1015,
§ 3, p. 6675.) This aspect of the new law is not relevant here.




                                6
any remaining counts if the following conditions are met: (1) A
charging document 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 or an accepted plea; and (3) The petitioner could
“not be convicted of first or second degree murder because of
changes to Section[s] 188 or 189” made by Senate Bill No. 1437.
(§ 1170.95, subd. (a).)
       Under section 1170.95, subdivision (b), the petition must
include: a declaration from the petitioner that he or she is
eligible for relief under the statute, the superior court’s case
number and year of conviction, and a statement as to whether the
petitioner requests appointment of counsel. (§ 1170.95,
subd. (b)(1).) If any of the required information is missing and
cannot “readily [be] ascertained by the court, the court may deny
the petition without prejudice to the filing of another petition.”
(§ 1170.95, subd. (b)(2).)
       Section 1170.95, subdivision (c) sets forth the trial court’s
responsibilities upon the filing of a complete petition: “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.” (§ 1170.95, subd. (c).)




                                 7
       If the court issues an order to show cause, it shall hold a
hearing to determine whether to vacate the murder conviction.
(§ 1170.95, subd. (d).) At that hearing, the prosecution has the
burden of proving beyond a reasonable doubt that the petitioner
is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The
prosecutor and petitioner “may rely on the record of conviction
or offer new or additional evidence to meet their respective
burdens.” (Ibid.) 7 Thus, “relief must be denied if the People
establish, either based on the record of conviction or through
new or additional evidence, that the defendant personally acted
with malice.” (Lopez, supra, 38 Cal.App.5th at p. 1114.)
       If the court vacates the murder conviction, the court shall
resentence the petitioner on any remaining counts or, if the
defendant was not separately charged with the target offense
that supported the prosecution’s reliance on the natural and
probable consequences doctrine (or the underlying felony in
the case of felony-murder), “the petitioner’s [murder] conviction
shall be redesignated as the target offense or underlying felony
for resentencing purposes.” (§ 1170.95, subd. (e).)

      B.    Defendant Failed to Make a Prima Facie
            Showing That He Falls Within the Provisions
            of Section 1170.95
      Under section 1170.95, subdivision (c), the court was
required to review defendant’s petition and determine whether
he made a prima facie showing that he “falls within the

      7The record of conviction includes a reviewing court’s
opinion. (People v. Woodell (1998) 17 Cal.4th 448, 454–455;
Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2019)
¶ 23:51(J)(2), p. 23-156.)




                                 8
provisions of ” the statute; that is, that he could not be convicted
of first or second degree murder under the law as amended by
Senate Bill No. 1437. (§ 1170.95, subds. (a)(3) & (c).) Because
one can be convicted of murder even after the amendments if he
or she directly aided and abetted the perpetrator of the murder,
defendant was required to make a prima facie showing that he
was not such a direct aider and abettor.
       “A prima facie showing is one that is sufficient to support
the position of the party in question.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 851.) Here, defendant
stated in his petition the statutory elements for relief and
averred, in essence, that he did not kill the victim or aid or abet
the perpetrator of the murder with the intent to kill. Defendant
contends that the court could look no further than his petition in
evaluating his prima facie showing and the court therefore erred
when it considered our opinion in his direct appeal. The Attorney
General, by contrast, contends that the court could, and properly
did, consider the record of defendant’s conviction, including our
prior opinion, in evaluating the sufficiency of the petition. We
agree with the Attorney General.
       Although no published decision has addressed the question
whether the trial court can consider the record of conviction in
evaluating the petitioner’s initial prima facie showing under
section 1170.95, subdivision (c), in analogous situations trial
courts are permitted to consider their own files and the record
of conviction in evaluating a petitioner’s prima facie showing
of eligibility for relief. Under section 1170.18, enacted by
Proposition 47, for example, a person convicted of certain felonies
that the Legislature subsequently redefined as misdemeanors
may petition the court to recall his or her sentence and have




                                 9
the felony conviction reclassified as a misdemeanor. (See
§ 1170.18; People v. Page (2017) 3 Cal.5th 1175, 1179.) The
court undertakes an “ ‘initial screening’ ” of the petition to
determine whether it states “ ‘a prima facie basis for relief.’ ”
(People v. Washington (2018) 23 Cal.App.5th 948, 953.) In
evaluating the petition at that stage, the court is permitted
to examine the petition “as well as the record of conviction.”
(Id. at p. 955.)
       Similarly, under the Three Strikes Reform Act of 2012,
known as Proposition 36, an inmate serving a third strike
sentence may petition to be resentenced if, among other criteria,
his or her sentence is for a crime that is not a serious or violent
felony. (§ 1170.126, subd. (e).) The petitioner’s initial burden
is to establish “a prima facie case for eligibility for recall of the
third strike sentence.” (People v. Thomas (2019) 39 Cal.App.5th
930, 935.) The trial court can determine whether the petitioner
met that burden based in part on the record of the petitioner’s
conviction. (People v. Bradford (2014) 227 Cal.App.4th 1322,
1341.) And in habeas corpus proceedings, the court may
summarily deny a petition based upon facts in its file that refute
the allegations in the petition. (In re Serrano (1995) 10 Cal.4th
447, 456.)




                                 10
       Allowing the trial court to consider its file and the record
of conviction is also sound policy. As a respected commentator
has explained: “It 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. For example, if the petition
contains sufficient summary allegations that would entitle
the petitioner to relief, but a review of the court file shows
the petitioner was convicted of murder without instruction
or argument based on the felony murder rule or [the natural
and probable consequences doctrine], . . . it would be entirely
appropriate to summarily deny the petition based on petitioner’s
failure to establish even a prima facie basis of eligibility for
resentencing.” (Couzens et al., Sentencing Cal. Crimes, supra,
¶ 23:51(H)(1), pp. 23-150 to 23-151.) We agree with this
view and, accordingly, conclude that the court did not err by
considering our opinion in defendant’s direct appeal in evaluating
his petition.
       In our prior opinion, we agreed with defendant that
the trial court erred in instructing the jury on the natural
and probable consequences doctrine. (Lewis, supra, B241236
at p. 19.) We explained that we were required to reverse the
judgment “ ‘unless there is a basis in the record to find that
the verdict was based on a valid ground.’ ” (Ibid., quoting
Chiu, supra, 59 Cal.4th at p. 167.) The only “ ‘valid ground’ ”
available to the jury was the prosecution’s alternative theory
that defendant acted as a direct aider and abettor. We concluded
that the evidence that defendant “directly aided and abetted




                                11
[the perpetrator] in the premeditated murder . . . is so strong”
that the instructional error was harmless “beyond a reasonable
doubt.” (Lewis, supra, B241236 at p. 19) Stated differently, we
held that 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. The issue
whether defendant acted as a direct aider and abetter has
thus been litigated and finally decided against defendant.
(See generally 1 Witkin & Epstein, Cal. Criminal Law (4th ed.
2012) Defenses, § 208, pp. 683–684 [collateral estoppel applies
in criminal cases].) This finding directly refutes defendant’s
conclusory and unsupported statement in his petition that he
did not directly aid and abet the killer, and therefore justifies
the summary denial of his petition based on the authorities and
policy discussed above. (Cf. People v. Karis (1988) 46 Cal.3d 612,
656 [conclusory allegations in habeas petition “made without any
explanation of the basis for the allegations do not warrant relief,
let alone an evidentiary hearing”].)
       Defendant points out that section 1170.95,
subdivision (d)(3) permits the parties at the hearing on an
order to show cause to “offer new or additional evidence,”
as well as rely on the record of conviction. 8 In light of this


      8  Section 1170.95, subdivision (d)(3) provides: “At
the hearing to determine whether the petitioner is entitled
to relief, the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing. If the prosecution fails to sustain
its burden of proof, the prior conviction, and any allegations
and enhancements attached to the conviction, shall be vacated
and the petitioner shall be resentenced on the remaining charges.




                                12
possibility, he contends that neither the trial court nor this court
“can categorically state at this point, beyond a reasonable doubt,
that any such evidence will not entitle [him] to resentencing.”
Even if we assume, without deciding, that section 1170.95
permits a petitioner to present evidence from outside the record
to contradict a fact established by the record of conviction,
defendant did not include or refer to such evidence in his
petition. 9 The court, therefore, did not err in determining that
defendant failed to make a prima facie showing that he “falls
within the provisions” of the statute.

      C.    Defendant Was Not Entitled to Appointed
            Counsel
       Defendant argues that the court erred by denying his
request to appoint counsel for him. We disagree.
       The provision for the appointment of counsel is set forth
in the second sentence of section 1170.95, subdivision (c), and
does not, when viewed in isolation, indicate when that duty
arises. When interpreting statutory language, however, we do
not “ ‘examine that language in isolation, but in 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


The prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens.”
      9Nor has defendant suggested the existence of such
evidence in his briefs on appeal.




                                 13
to their location within the statute; that is, actions described
in the statute occur in the order they appear in the text. (See,
e.g, KB Home Greater Los Angeles, Inc. v. Superior Court (2014)
223 Cal.App.4th 1471, 1477 [sequential structure of statutory
scheme supports interpretation that acts required by the statutes
occur in the same sequence]; Milwaukee Police Association v.
Flynn (7th Cir. 2017) 863 F.3d 636, 643–644 [statute’s
chronological structure supports interpretation that statutory
acts occur in the order they appear in the text].)
       Under section 1170.95 the petitioner may file a petition
to be resentenced under subdivision (a); the court determines
whether the petition is complete under subdivision (b); the
petitioner’s prima facie showing of “fall[ing] within the
provisions” of the statute, appointment of counsel, briefing,
the prima facie showing of entitlement to relief, and the setting
of an order to show cause are provided for in subdivision (c);
the hearing on the order to show cause is addressed in
subdivision (d); and the resentencing of the petitioner is
addressed in the statute’s concluding subdivision, subdivision (g).
The statute is thus organized chronologically from its first
subdivision to its last.
       Given the overall structure of the statute, we construe
the requirement to appoint counsel as arising in accordance with
the sequence of actions described in section 1170.95 subdivision
(c); that is, after the court determines that the petitioner has
made a prima facie showing that petitioner “falls within the
provisions” of the statute, and before the submission of written
briefs and the court’s determination whether petitioner has
made “a prima facie showing that he or she is entitled to relief.”




                                14
(§ 1170.95, subd. (c).) 10 In sum, the trial court’s duty to appoint
counsel does not arise unless and until the court makes the
threshold determination that petitioner “falls within the
provisions” of the statute. Because the trial court denied
defendant’s petition based upon his failure to make a prima facie
showing that the statute applies to his murder conviction,
defendant was not entitled to the appointment of counsel.




      10 It 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,” referred to in the last sentence
of the subdivision. We need not decide this issue because the
court properly concluded that defendant was neither within the
provisions of the statute, nor entitled to relief, as a matter of law
based on the record of conviction.




                                 15
                        DISPOSITION
       The court’s February 4, 2019 order denying defendant’s
petition for resentencing is affirmed.
       CERTIFIED FOR PUBLICATION.




                                    ROTHSCHILD, P. J.
We concur:




                 BENDIX, J.




                 WEINGART, J. *




     *  Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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