THE PEOPLE, Plaintiff and Respondent, v. ANTHONY LYLE TARKINGTON, Defendant and Appellant.
B296331 (Los Angeles County Super. Ct. No. BA134487)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Filed 6/2/20
CERTIFIED FOR PUBLICATION
APPEAL from an order of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Affirmed.
Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Paul M. Roadarmel Jr., Stacy S. Schwartz, Idan Ivri, and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
Jackie Lacey, Los Angeles County District Attorney, Phyllis C. Asayama and Matthew Brown, Deputy District Attorneys; Ricardo D. Garcia, Public Defender of Los Angeles County, Albert J. Menaster, Deputy Public Defender; Erika C. Anzoategui, Alternate Public Defender of Los Angeles County, Michael Goodman, Deputy Alternate Public Defender; The Justice Collaborative, Kate L. Chatfield, Senior Advisor for Legislation and Policy, as Amici Curiae.
In 1997, defendant and appellant Anthony Lyle Tarkington was convicted by a jury of second degree murder, with a finding that he personally used a dangerous and deadly weapon, a knife. After passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), Tarkington
FACTUAL AND PROCEDURAL BACKGROUND2
On June 22, 1996, Tarkington and the victim, Donald Fitzpatrick, became embroiled in a fistfight as they were waiting in line for free coffee and donuts in downtown Los Angeles. Tarkington fatally stabbed Fitzpatrick in the shoulder and the stomach. Consequently, Tarkington was charged with murder.
On August 25, 1997, a jury found Tarkington guilty of second degree murder. (
On January 28, 2019, after passage of Senate Bill 1437, Tarkington filed a petition for resentencing under
On February 13, 2019, the trial court summarily denied the petition. Tarkington was not present and the court did not appoint counsel for him. The court‘s order stated, “In 1997, Tarkington was convicted of second degree murder for stabbing a man to death on June 22, 1996. The victim was waiting [in] line for free donuts and coffee in the Skid Row area of Los Angeles. Tarkington was convicted in part when DNA confirmed a spot of blood on his shoe was the victim‘s. [¶] As the actual killer, Tarkington is not
Tarkington timely appealed.
DISCUSSION
Tarkington contends that the court erred by summarily denying his petition without appointing counsel for him. He urges that the failure to appoint counsel violated his statutory and constitutional rights, amounted to structural error, and requires reversal. We disagree.
1. Senate Bill 1437
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.” (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 underlying felony and acted with reckless indifference to human life.’ (
Senate Bill 1437 also added
Verdugo recently clarified the parameters of the statutory scheme, explaining that a court‘s evaluation of a
In its initial review, the court determines whether any of the information required by
The next step, a prebriefing “first prima facie review,” is a “preliminary review of statutory eligibility for resentencing,” akin to the procedure
“Because the court is only evaluating whether there is a prima facie showing the petitioner falls within the provisions of the statute, . . . if the petitioner‘s ineligibility for resentencing under
After such an order to show cause issues, absent a waiver and stipulation by the parties, 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 in the same manner as if the petitioner had not been previously . . . sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (
2. The trial court correctly found Tarkington is ineligible for section 1170.95 relief
Preliminarily, we observe that the record compels the conclusion that the trial court correctly found Tarkington is ineligible, as a matter of law, for relief under
3. Tarkington was not entitled to appointed counsel at the first prima facie review stage
Tarkington nonetheless contends that the superior court was required to appoint counsel for him before denying the petition, simply because he checked the right boxes on a preprinted form. Our colleagues in Divisions
Tarkington maintains that the statutory language is plain and unambiguous, requiring that counsel “shall” be appointed. (
When construing a statute, we must determine the Legislature‘s intent so as to effectuate the law‘s purpose. (People v. Ruiz (2018) 4 Cal.5th 1100, 1105–1106.) We begin with an examination of the statute‘s words, giving them their usual and ordinary meaning. (People v. Colbert (2019) 6 Cal.5th 596, 603; People v. Ruiz, at pp. 1105–1106; In re C.H. (2011) 53 Cal.4th 94, 100.) If not ambiguous, the plain meaning of the statutory language controls, and we need go no further. (People v. Colbert, at p. 603; People v. Ruiz, at p. 1106; In re C.H., at p. 100.) We agree the statutory language requiring appointment of counsel is mandatory, but the pertinent question is when such appointment is required. On that point, when viewed in isolation, the statutory language is ambiguous. However, when viewed in the context of
Verdugo explained: “The first sentence of
Lewis came to the same conclusion. The court observed that when “the statutory framework is, overall, chronological, courts will construe the timing of particular acts” to occur in the order they appear in the text. (Lewis, supra, 43 Cal.App.5th at pp. 1139–1140, rev.gr.)
Reading the law as Tarkington suggests would lead to anomalous results. ” ‘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.’ ” (Lewis, supra, 43 Cal.App.5th at p. 1138, rev.gr., citing Couzens et al., Sentencing Cal. Crimes (The Rutter Group 2019) ¶ 23:51(H)(1), pp. 23-150 to 23-151.)
Such is the case here. The court summarily denied the petition at the “first prima facie review” stage, based on its finding that Tarkington is ineligible as
4. Senate Bill 1437‘s legislative history
The dissent opines that examination of successive drafts of Senate Bill 1437 demonstrates the Legislature always intended that a petitioner would be represented by appointed counsel immediately upon filing a complete petition. (Dis. opn., post, at pp. 12, 14–15.) To the contrary, comparison of the bill‘s final and preliminary versions suggests the opposite.
As we have described,
The Legislature used this same phrasing in earlier versions of Senate Bill 1437. Senate Bill 1437 was introduced on February 16, 2018, and was amended twice before its enactment. Both as introduced and as first amended, the bill required that upon receipt of the petition, the trial court would provide notice of the petition‘s filing to defense counsel and the prosecutor.7 Both
The bill was amended to its final form in the Assembly on August 20, 2018. That amendment did away with the requirement that the court give notice and require or request a response from the attorneys as the first step in the process. Instead, the Legislature put into place the sequential procedure described in Lewis and Verdugo. (Sen. Bill No. 1437, as amended Aug. 20, 2018, § 4; Lewis, supra, 43 Cal.App.5th at p. 1140, rev.gr.; Verdugo, supra, 44 Cal.App.5th at p. 332, rev.gr.) Using the same language employed in the earlier versions, the August 20 amendment made explicit that two, distinct prima facie showings were required. (Sen. Bill No. 1437, as amended Aug. 20, 2018, § 4;
Thus, the dissent‘s position that “[e]very version of [Senate Bill] 1437 contemplated that petitioners would be represented by counsel upon filing a sufficient petition” is not accurate. (Dis. opn., post, at p. 12.) Senate Bill 1437 never contemplated that counsel would be involved in the inquiry as to whether the petitioner “falls within the provisions of this section,” i.e., eligibility. Counsel was always expected to weigh in only on the question of entitlement to relief, i.e., the question that the bill‘s final version made clear comes after the court determines eligibility. In short, all three versions of the bill limited counsel‘s involvement to the entitlement, not the eligibility, inquiry.
Given this,
Tarkington and the dissent point to two letters appended to an amicus curiae brief filed by The Justice Collaborative, which purportedly demonstrate the Legislature‘s intent to require appointment of counsel before a court summarily denies a
Council of California to the bill‘s author, and a September 13, 2018 letter from the Judicial Council to former Governor Edmund G. Brown, Jr.—the Judicial Council opined that Senate Bill 1437 should be amended to allow for summary dismissal of petitions that do not make a prima facie case, and for appointment of counsel once a prima facie showing is made. Based on these letters, the dissent makes the mistaken pronouncement that the Legislature “rejected a request to allow courts to deny petitions summarily without appointing counsel.” (Dis. opn., post, at p. 16.)
But the two letters in question do not demonstrate that the Legislature rejected a proposed change to the bill. For one thing, the letters are not cognizable legislative history, because there is no indication they were considered by the Legislature as a whole. As “a general rule[,] in order to be cognizable, legislative history must shed light on the collegial view of the Legislature as a whole. [Citation.] . . . [O]ur Supreme Court has said, ‘We have frequently stated . . . that the statements of an individual legislator, including the author of a bill, are generally not considered in construing a statute, as the court‘s task is to ascertain the intent of the Legislature as a whole in adopting a piece of legislation. [Citations.]’ [Citation.]” ( Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 30 (Kaufman), quoting Quintano v. Mercury Casualty Co. (1995) 11 Cal.4th 1049, 1062.) Therefore, unless there is a showing that particular materials were part of the debate on the legislation and were communicated to the Legislature as a whole before passage of the bill, they are not cognizable legislative history. (See, e.g., People v. Garcia (2002) 28 Cal.4th 1166, 1175–1176, fn. 5 [” ‘In construing a statute we do not consider the objective of an authoring legislator when there is no reliable indication that the Legislature as a whole was aware of that objective and believed the language of the proposal would accomplish it.’ “]; People v. Johnson, supra, 28 Cal.4th at p. 247 [memorandum prepared by Office of the Attorney General—the source of legislation—was irrelevant absent showing awareness by Legislature as a whole]; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45–46, fn. 9 [“the views of individual legislators as to the meaning of a statute rarely, if ever, are relevant“]; Cequel III Communications I, LLC v. Local Agency Formation Com. of Nevada County (2007) 149 Cal.App.4th 310, 326, fn. 3 [“Letters to individual legislators, including the bill‘s author, are not matters constituting cognizable legislative history if they were not communicated to the Legislature as a whole.“]; Kaufman, at p. 38 [letters to particular legislators, including bill‘s author; letters to Governor urging signing of bill; subjective intent reflected by statements of interested parties and individual legislators, including bill‘s author, not communicated to Legislature as a whole; and “State Bar‘s view of the meaning of proposed legislation,” do not constitute legislative history].)10
Here, we do not have even a statement of the author‘s intent; instead, we have a letter opining that the law should be amended, and the bill‘s author‘s
The letter to the Governor was sent after Senate Bill 1437 was enacted by the Legislature, and consequently cannot shed
any light on the Legislature’s intent.12 (See People v. Fuhrman (1997) 16 Cal.4th 930, 939, fn. 8 [memorandum analyzing assembly bill, prepared by Judicial Council subcommittee after Governor signed bill into law, was not “within the class of documents that traditionally has been considered in determining legislative intent”]; Kahan v. City of Richmond (2019) 35 Cal.App.5th 721, 734; California Highway Patrol v. Superior Court (2006) 135 Cal.App.4th 488, 501; Witt Home Ranch, Inc. v. County of Sonoma (2008) 165 Cal.App.4th 543, 558, fn. 8 [opinions of Legislative Analyst and Attorney General prepared after passage of bill could not be considered because they provided no evidence of legislative intent].)13
The dissent ignores these well-settled principles by arguing that the letter to the Governor, at least, should be treated as an enrolled bill report. (Dis. opn., post, at pp. 20–21.) (See Elsner v. Uveges (2004) 34 Cal.4th 915, 934, fn. 19 [“we have routinely found enrolled bill reports, prepared by a responsible agency contemporaneous with passage and before signing, instructive on matters of legislative intent”]; People v. Ruiz, supra, 4 Cal.5th at p. 1111, fn. 3.) But the letter to the Governor is simply not an enrolled bill report or its equivalent. (See Chino MHC, LP v. City of Chino (2012) 210 Cal.App.4th 1049, 1067 [an enrolled bill report “ ‘
The dissent also implies that because the Judicial Council is the judicial branch’s policymaking body, its views are significant. (Dis. opn., post, at p. 20.) But this misses the point. Whether the Judicial Council’s—or any governmental body’s—views assist with an interpretation of legislative intent turns not on the importance or prestige of that body, but on whether circumstances show its objections or requests were considered by the Legislature, as opposed to a single legislator. It is one thing to say the Legislature rejected a proposed amendment after considering it; it is quite another to assume that the Legislature as a whole rejected a proposal that, as far as we can tell, was never shared with anyone other than the author.
5. Tarkington’s other arguments lack merit
Tarkington argues the statute should be read to require counsel at the outset for several reasons. He asserts that Senate Bill 1437 gave him a liberty interest, presumably in having counsel appointed, of which he could not be
Next, Tarkington avers that the appointment of counsel at the outset is necessary because implementation of
These concerns are unfounded. Verdugo explained what information a court should examine in making the threshold eligibility determination: “Although subdivision (c) does not define the process by which the court is to make this threshold determination, subdivisions (a) and (b) of
Contrary to Tarkington’s arguments, the preliminary determination that a petitioner is ineligible will generally be straightforward and uncomplicated. In most or at least many cases, the information necessary to make the first prima facie eligibility determination will be readily ascertainable based on clear and indisputable portions of the record. A court can determine whether the defendant was convicted of a qualifying crime, was the actual killer, or was tried under the felony murder or natural and probable consequences doctrines, by a simple examination of the record, including, inter alia, the charging document, the verdict (or plea) forms, the jury instructions, and any appellate opinion in the case. (See Verdugo, supra, 44 Cal.App.5th at p. 333, rev.gr. [an appellate opinion is part of the record of conviction; trial court may properly consider it when determining whether petitioner made a prima facie showing of eligibility under
At this stage, a court must make all factual inferences in the petitioner’s favor (Verdugo, supra, 44 Cal.App.5th at p. 329, rev.gr.); thus, there is no danger the court will find ineligibility based upon an unclear or missing record. Unless the record conclusively shows that the defendant is ineligible as a matter of law, the court should move to the next step and appoint counsel. As the district attorney states in her amicus curiae brief: “the prima facie showing is very low. The court reviews only whether the defendant could have been convicted under a theory of murder that is now invalid after [Senate Bill] 1437. This would normally require looking only at the jury instructions or the appellate opinion to see if the defendant was convicted as an accomplice, as opposed to being the direct perpetrator. The court should only decline to find a prima facie case where the defendant is ineligible as a matter of law and there is no contested issue of law or fact for the court’s resolution.” (Italics added.) If there is any issue, the court should proceed to the second prima facie review. At that point, the appointment of counsel, where requested, is mandatory.
Tarkington next expresses concern that if requested counsel is not appointed immediately upon the filing of a petition, the result will be a plethora of erroneous ineligibility findings and resultant appeals. In its amicus brief, the alternate public defender states that more than 100 summary denials of
Nor do we detect any possibility that counsel’s absence could prejudice a petitioner in a significant way, or that counsel’s presence at this stage is necessary to preserve his or her rights. The instant case provides an apt illustration of why this is so. The court’s ruling turned on one simple, easily ascertainable, and undisputed fact: Tarkington was the actual killer. It is unclear how appointed counsel could have assisted Tarkington in any meaningful way. Tarkington is ineligible as a matter of law, pure and simple; counsel’s representation could have done nothing to change that fact.
6. Reversal is not required
To the extent Tarkington intends to argue that the court’s order must be reversed because the court failed to specify what portions of the record it relied upon, we disagree. To facilitate appellate review and ensure a clear record, a court ruling on a
As noted, in making the threshold determination of eligibility, a court may rely upon readily ascertainable materials in the court file and record of conviction.15 (Verdugo, supra, 44 Cal.App.5th at pp. 329–330, rev.gr.; Lewis, supra, 43 Cal.App.5th at pp. 1137–1138, rev.gr.) Certainly, it would not have been difficult to glean from the record here that Tarkington was ineligible. That the court did examine the record is evident from its description of the case in its written order. We have taken judicial notice—at Tarkington’s request—of the record in his case.16 As discussed, it indisputably shows Tarkington is ineligible. This is not a case in which the court may have made a factually erroneous finding. Thus, the trial court’s failure to sufficiently identify the portions of the record upon which it relied does not warrant reversal.
DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION
EDMON, P. J.
I concur:
EGERTON, J.
LAVIN, J., Dissenting:
Defendant Anthony Lyle Tarkington filed a petition for resentencing under
PROCEDURAL BACKGROUND
By information dated December 18, 1996, Tarkington was charged with one count of murder (
On January 28, 2019, Tarkington filed a petition for resentencing under
On February 13, 2019, the court issued the following order denying the petition:
“The Court has considered the petition for resentencing filed by defendant Anthony Tarkington on January 28, 2019.
“In 1997, Tarkington was convicted of second degree murder for stabbing a man to death on June 22, 1996. The victim was waiting on line for free donuts and coffee in the skid row area of Los Angeles. Tarkington was convicted in part when DNA confirmed a spot of blood on his shoe was the victim’s.
“As the actual killer, Tarkington is not entitled to relief under
Penal Code § 1170.95 .“The petition for resentencing is unmeritorious and is denied.”
The minute order of that date noted that Tarkington was not present and was not represented by counsel. The record does not reveal the basis for the court’s factual conclusions.
Tarkington filed a timely notice of appeal.
DISCUSSION
Tarkington contends the trial court erred by summarily denying his resentencing petition without appointing an attorney to represent him or receiving briefing from the prosecution. The People argue that because Tarkington was the actual killer,
1. Senate Bill No. 1497
Murder is “the unlawful killing of a human being … with malice aforethought.” (
“Not all murder requires the People to prove the defendant killed intentionally or with conscious disregard for life,” however. (People v. Rios (2000) 23 Cal.4th 450, 460, fn. 6.) A killing may also become murder by operation of the felony-murder rule. “Under the felony-murder rule, a homicide is murder when it occurs in the course of certain serious and inherently dangerous felonies. [Citations.] In such cases, the intent to commit a dangerous felony that actually results in death is substituted for malice, thus establishing the extent of culpability appropriate to murder. [Citations.]” (Ibid.) “Felony-murder liability,” therefore, “does not require an intent to kill, or even implied malice, but merely an intent to commit the underlying felony. [Citation.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 654.)
“Murder is divided into first and second degree murder. (
Senate Bill No. 1437 (S.B. 1437), which took effect on January 1, 2019, changed these rules to ensure a “person’s culpability for murder [is] premised upon that person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
First, S.B. 1437 limited accomplice liability for murder. Under prior California law, every accomplice to an enumerated felony could be convicted of first degree murder if a death occurred during the commission of that
Now, however, a person may be convicted of first degree murder only if: he was the actual killer; or with the intent to kill, he aided and abetted the actual killer’s commission of first degree murder; or he acted as a “major participant” in a felony listed in section 189 and with “reckless indifference to human life.” (
Second, S.B. 1437 abolished second degree felony murder. (Stats. 2018, ch. 1015, § 2, amending
In addition to changing the law of murder prospectively, S.B. 1437 gave people who had been convicted under one of the now-invalid theories the opportunity to petition for resentencing under newly-enacted
If the statutory language is unambiguous, its plain meaning controls; if the statutory language is ambiguous, “ ‘ “we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.” [Citation.] Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute. [Citations.]’ ” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 321.)
3. Section 1170.95
The court uses the first two steps to evaluate whether the petitioner is entitled to an evidentiary hearing: First, the court assesses the petition’s sufficiency. That is, did the petitioner comply with the requirements of
3.1. Does the petition comply with subdivision (b)?
The process begins when the petitioner files and serves a petition that complies with the requirements of
“The petition shall be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney, or on the agency that prosecuted the petitioner, and on the attorney who represented the petitioner in the trial court or on the public defender of the county where the petitioner
was convicted. If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition. The petition shall include all of the following: “(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a).
“(B) The superior court case number and year of the petitioner’s conviction.
“(C) Whether the petitioner requests the appointment of counsel.”
(
“(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.”
(
A petition is sufficient if it meets the requirements of
“If any of the information required by this subdivision is missing from the petition 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.”
(
The court’s review at this stage is narrow: Did the petitioner check the correct boxes? Does the case number exist? Was the petition filed in the right county? Were the necessary parties served? Nevertheless,
3.2 Is the petitioner entitled to an evidentiary hearing?
If the petition is sufficient—that is, if it complies with the requirements in
“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’s response is served. These deadlines shall be extended for good cause. 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.”
(
This court is asked to interpret
4. Plain Meaning
At first blush,
5. Legislative History
The majority “agree[s] the statutory language requiring appointment of counsel is mandatory,” but concludes “the statutory language is ambiguous” as to “when such appointment is required.” (Maj. opn. ante, at pp. 10–11.)6 Likewise, the District Attorney, as amicus curiae, suggests that “the statutory language is ambiguous about whether the court must appoint counsel in all petitions or only after the court finds a prima facie case.” To resolve the question of whether subdivision (c) contemplates one prima facie showing or two, I turn to the legislative history.
5.1. Every version of S.B. 1437 contemplated that petitioners would be represented by counsel upon filing a sufficient petition.
S.B. 1437‘s textual history clarifies that the Legislature contemplated a petitioner would be represented by counsel upon filing a sufficient petition, and counsel would help the court determine whether to hold a resentencing hearing. (See, e.g., Pacific Bell v. Public Utilities Com. (2000) 79 Cal.App.4th 269, 279, fn. 4 [“Successive drafts before the Legislature may be helpful in interpreting a statute when its meaning is unclear.“].)
S.B. 1437 was introduced on February 16, 2018, and amended twice—once in the Senate, on May 25, 2018, and once in the Assembly, on August 20, 2018. (S.B. 1437, Sen. Final Hist. (2017–2018 Reg. Sess.) p. 664.) The August 20, 2018 version of the bill was then passed by the Senate and signed into law. (Ibid.)
As introduced, S.B. 1437 required the court, upon receipt of a complying petition, to assemble various documents,7 notify counsel that a petition had been filed, and request a written response. The notice section stated:
“The court shall also provide notice to the attorney who represented the petitioner in the superior court and to the district attorney in the county in which petitioner was prosecuted. Notice shall inform each that a petition has been filed pursuant to this section and shall request that a response be filed from both parties as to whether the petitioner is entitled to relief.”
(S.B. 1437 (2017–2018 Reg. Sess.) as introduced Feb. 16, 2018, § 6.)
Apparently realizing that petitioners trial attorneys might not still be available, on May 25, 2018, the Senate amended the bill to allow the court to provide notice either “to the attorney who represented the petitioner in the superior court, or to the public defender if the attorney of record is no longer available ... .” (S.B. 1437 (2017–2018 Reg. Sess.) as amended May 25, 2018, § 6, italics omitted, bold added.) It also upgraded the briefing requirement from a “request that a response be filed from both parties” to an order “that a response from both parties ... is required to be filed within 60 days.” (S.B. 1437 (2017–2018 Reg. Sess.) as introduced Feb. 16, 2018, § 6; id., as amended May 25, 2018, § 6.)
On August 20, 2018, the Assembly amended S.B. 1437 to relieve the trial courts of most of these tasks. As amended, the bill no longer required the court to compile records, notify the parties, or request briefing. (S.B. 1437 (2017–2018 Reg. Sess.) as amended Aug. 20, 2018, § 4.) Instead, the amended bill required the petitioner to notify the prosecutor and either his trial attorney or the public defender by serving them with copies of the petition. (Ibid.) It also required him
Similarly, in the Assembly version, the court no longer had to order the prosecutor and defense counsel to respond to the petition within 60 days. Instead, only the prosecutor had to respond—and the deadline was automatic. The court still had to appoint counsel to represent the petitioner, but that requirement was made explicit and only upon request. This amendment also offered greater flexibility: The court could appoint a new lawyer if trial counsel were no longer available, and petitioners could retain private counsel or represent themselves if they wished to do so. This provision became section 1170.95, subdivision (c).
In sum, the first two versions of S.B. 1437 assumed that once he filed a sufficient petition, the petitioner would be represented by counsel—either because he was already represented or because the court would issue any order necessary to effectuate the representation; the final version of the bill explicitly requires the court to appoint counsel on request. But there is no indication the Legislatures views about timing changed.
To the contrary, if the Legislature had anticipated that the court would undertake its own review of the merits of the petition as an intermediate step before appointing counsel, it would have calculated the deadlines not from the date of service of the petition but instead from the date the court completed its initial review. And though the Legislature required the prosecution to respond within 60 days of being served with the petition, it did not create a deadline for the court to conduct an intermediate review. Nor is there any provision allowing the court to relieve the parties of these statutory requirements.8
By omitting those steps, the Legislature signaled it did not intend for the court and prosecutors to duplicate their efforts by conducting the same review of the same documents at the same time. Instead, it appears from the history outlined above that the bill was revised to ensure every petitioner who wanted a lawyer would have one—not to impose a barrier where none had existed.
Certainly, that is the procedure the bills author, justice community stakeholders, and the Governor believed was being enacted. Perhaps the clearest expression of the Legislatures intent on this point is its decision to reject the typical postconviction procedure. (See, e.g., Kelly v. Methodist Hospital of So. California (2000) 22 Cal.4th 1108, 1116 [relying on rejection of proposed amendment to interpret statute].)
On August 20, 2018, the Assembly passed what would become the final version of S.B. 1437, and returned the bill to the Senate. As relevant here, the Assemblys amendments shifted responsibility for gathering documents from the court to prosecutors, shifted responsibility for serving counsel from the court to the petitioner, clarified that the court must, upon request, appoint counsel to represent the petitioner, and clarified the showing a petitioner must make to qualify for a resentencing hearing.9 (Compare S.B. 1437 (2017–2018 Reg. Sess.) as amended May 25, 2018, with id., as amended Aug. 20, 2018.)
On August 28, 2018, shortly after the Assembly passed the amended version of S.B. 1437, the Judicial Council wrote to Senator Nancy Skinner, chairwoman of the Senate Public Safety Committee and the bills author, to request additional changes. The letter explained that the “council appreciate[d] the August 20, 2018 amendments, which include[d] the majority of the amendments requested by the council.” (Sharon Reilly, Jud. Council of Cal., letter to Sen. Nancy Skinner (2017–2018 Reg. Sess.) Aug. 28, 2018, p. 1, available at <https://www.courts.ca.gov/documents/ga-position-letter-senate-sb1437-skinner.pdf> [as of May 26, 2020], archived at <https://perma.cc/6GKB-BNQM> [hereafter Jud. Council letter].) Nevertheless, the Council stressed, “the bill should be amended to authorize courts to summarily dismiss petitions that do not make a prima facie case without a hearing consistent with petitions for writs of habeas corpus and for resentencing under Proposition 36 and Proposition 47.” (Id. at pp. 1–2, fn. omitted.)
The letter continued:
“Consistent with these other provisions of law, the council believes that it is more efficient for courts to have the ability to deny petitions filed pursuant to SB 1437 early in the process when they do not make a prima facie
showing. ... “[T]he council is concerned that appointing counsel and involving the prosecution in the petition process before an initial review by the court will place unnecessary burdens on courts and on the prosecutors and public defenders to review and respond to petitions that the judge will ultimately summarily deny at a hearing because the petition does not make a prima facie showing.”
(Jud. Council letter, supra, p. 2.)
Thus, the Judicial Council asked Senator Skinner to amend S.B. 1437 to adopt the following procedure:
- Upon receiving the petition, “the court shall determine whether the petitioner has made a prima facie showing that [he or she] falls within the provision of the bill ...“; “before making that determination,” “the court may“—but is not required to—“request an informal response from the prosecutor“;
- “if the court determines that the petitioner” has made “a prima facie showing, the court shall issue an order to show cause (OSC)“;
- only then must the court appoint counsel to represent the petitioner;
- within 60 days of service of the OSC, rather than from service of the petition, the prosecutor must file and serve a response; the petitioner may reply within 30 days after that; and
- the court shall hold a hearing 60 days after briefing is complete.
(Jud. Council letter, supra, p. 2, italics added.) In short, the Judicial Council urged the Legislature to adopt the procedure the majority suggests the statute already requires—the procedure used in this case.
The Senate passed S.B. 1437 as amended on August 30, 2018. On September 13, 2018, the Judicial Council sent a similar letter to the Governor, urging him to veto the bill. (Cory T. Jasperson, Jud. Council of Cal., letter to Governor Edmund G. Brown, Jr. (2017–2018 Reg. Sess.) Sept. 13, 2018, available at <https://www.courts.ca.gov/documents/ga-position-letter-senate-sb1437-skinner.pdf> [as of May 26, 2020], archived at <https://perma.cc/6GKB-BNQM>.)
Other groups opposed the bill for similar reasons. For example, the San Diego District Attorney urged the Governor to veto the legislation because, among other reasons:
“To petition for resentencing, SB 1437 requires that a person seeking resentencing merely submit a request indicating that he or she was convicted of murder; that the prosecution theory for murder could have included felony murder, or murder by natural and probable consequences; that [the petitioner] could not have been convicted [of murder] under current law; and the superior court case number, the year of conviction, and whether the petitioner requests the appointment of counsel. “The prosecutor would be required in each and every case in which a petition has been filed, to research the facts and theories upon which a murder conviction was based, and respond accordingly.”
(Summer Stephan, San Diego Dist. Atty., letter to Governor Edmund G. Brown, Jr. (2017–2018 Reg. Sess.) Sept. 4, 2018, Governors chaptered bill files, ch. 1015, p. 2, bold added; see id. at p. 3 [S.B. 1437 “does not provide an adequate mechanism to deter frivolous petitions“].)
Ultimately, however, although the Judicial Council and other stakeholders had urged it to adopt procedures “consistent with petitions for writs of habeas corpus and for resentencing under Proposition 36 and Proposition 47,” the Legislature rejected that approach. (Jud. Council letter, supra, p. 2, fns. omitted.) Instead, it created new, different rules. Under those new rules, when the court receives a sufficient petition, it must appoint counsel if the petitioner has requested it; the prosecutor must take a position on whether the petitioner is eligible for a resentencing hearing; and the court must give the petitioner, represented by counsel, a chance to respond. I assume that choice was intentional.
Nevertheless, the majority declines to consider the Judicial Councils views because, it insists, letters to the Governor are “not cognizable legislative history.” (Maj. opn. ante, p. 18.) The majority is mistaken: This was not just any letter; it was a letter from the Judicial Council of California.
“The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. Judicial Council staff help implement the councils policies.” (<https://www.courts.ca.gov/policyadmin-jc.htm> [as of May 26, 2020], archived at <https://perma.cc/5ZZQ-M3TM>.) Broadly, the Judicial Council is to the Chief Justice as executive agencies are to the Governor.
As such, reports from the Judicial Council to the Governor are official statements from the judicial branch, and are analogous to the enrolled bill
6. Appointment of counsel is not an absurd result.
Nor is appointment of counsel for all petitioners who file complying petitions an absurd result the Legislature could not possibly have intended. (See People v. Escarcega (2019) 32 Cal.App.5th 362, 381.)
To be sure, the Public Defender and Alternate Public Defender, as amici curiae, acknowledge there may be scenarios in which, as a practical matter, the court would be able, summarily and without controversy, to deny a complying petition under section 1170.95 without the benefit of briefing. But both amici express concerns about the contours of such a rule and urge that it should not apply if the petitioner was convicted of a potentially qualifying offense or in cases in which “there is any legally cognizable theory that might be advanced as to why a petitioner might be entitled to relief ... .” Similarly, the District Attorney suggests the court should appoint counsel unless “the petition and any reasonably available court records ... conclusively show that the defendant is ineligible as a matter of law ... .”
Against these amorphous standards, appointment of counsel upon filing of a facially valid petition presents a clear, easy-to-apply rule. The question, then, is whether the Legislature could not possibly have intended the consequences of such a bright-line rule. I see no absurdity.
On the other hand, assembling and reviewing the record to spot potential claims itself, as the court may have done here,11 rather than relying on counsel to do it, as the statute contemplates, creates more work for the trial courts, not less—especially in cases in which the superior court has destroyed records that the prosecution may still have.12
But even assuming the practice leads to short-term efficiencies, those savings are a false economy that shifts work from trial counsel to appellate counsel and from the trial courts to the appellate courts. As the Public Defender explains:
“In cases where judges have denied the petitions without appointment of counsel, Amicus‘s Office has ended up filing motions to vacate those denials. The refusals to do so have resulted in our filing Notices of Appeal, which are wending their way to this court. We expect a substantial volume of appeals in this posture. It is likely that this court will remand for evidentiary hearings in many such cases. If relief is then denied, yet another appeal will result.”
Similarly, the Alternate Public Defender notes that since section 1170.95s effective date, her office “has experienced more than 100 summary denials”
This courts own experience bears this out: When the court does not give the parties an opportunity to flesh out the issues, raise facts not previously before any court, or otherwise develop a record below, the appellate record we receive is incomplete and difficult to review. Cases in which the prosecution assembles the record below and writes a short explanatory brief before defense counsel submits on the record are much less time-consuming on appeal than cases like this one, in which we cannot even determine the basis for the trial courts decision. That is true even when, as the majority suggests, the courts ultimate denial of the petition is correct. (Maj. opn. ante, at pp. 26–27.) Indeed, in this case, the majoritys conclusion that the court correctly determined Tarkington was not eligible for resentencing apparently rests on its independent review of the record in Tarkingtons prior appeal—a time-consuming task the Legislature attempted to spare it. (Id. at pp. 27–28.) And its ability to do so rested on mere luck: Tarkingtons case is recent enough that we still had the record in our archives. That is not always true.
Second, because section 1170.95 requires appointment of counsel, briefing by the prosecutor, the opportunity for petitioners counsel to present a reply brief, and an evidentiary hearing when necessary, the Legislature understood there would be costs to local agencies. (Stats. 2018, ch. 1015, p. 95 [“By requiring the participation of district attorneys and public defenders in the resentencing process, this bill would impose a state-mandated local program.“].) Thus, S.B. 1497 provided: “If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies ... for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.” (Stats. 2018, ch. 1015, § 5.)
Third, the judiciarys resources are not the Legislatures only concern. The Legislature can—and apparently did—conclude that the risk courts would
In any event, the question is not, as the Lewis court appears to suggest, whether “[a]llowing the trial court to consider its file and the record of conviction” before appointing counsel is “sound policy.” (Lewis, supra, 43 Cal.App.5th at p. 1138.) The question is whether it is absurd to believe the Legislature adopted a different one. (See, e.g., California School Employees Assn. v. Governing Bd. of South Orange County Community College Dist. (2004) 124 Cal.App.4th 574, 588 [“We must exercise caution using the absurd result rule; otherwise, the judiciary risks acting as a super-Legislature by rewriting statutes to find an unexpressed legislative intent.“]; Austin v. Medicis (2018) 21 Cal.App.5th 577, 597, fn. 7 [“Certainly, as [appellant] argues, there are compelling policy reasons to support a different rule, and if the Legislature wishes to apply the tolling rules more broadly, it may do so. But it is up to the Legislature, and not the courts, to rewrite this statute—and until it does, we must apply [the statute] as written.“].)
7. Conclusion
In this case, Tarkington submitted a petition under section 1170.95 in which he complied with all the requirements in subdivision (b) and requested the appointment of counsel. The trial court was therefore required to appoint counsel to represent him and await the prosecutions mandatory response and Tarkingtons optional reply before deciding whether to issue an order to show cause. It did not. Therefore, I would remand for the court to comply with the requirements in section 1170.95, subdivision (c).
LAVIN, J.