California Court of Appeals, Second District, Sixth Division
Superior Court County of San Luis Obispo Super. Ct. No.
F268843 Craig B. Van Rooyen, Judge
Allison H. Ting, under appointment by the Court of Appeal,
for Defendant and Appellant.
Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Amanda V. Lopez and Nicholas J. Webster,
Deputy Attorneys General, for Plaintiff and Respondent.
convicted Harold Ted Cornelius of second degree murder (Pen.
Code,  §§ 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.
argues the trial court erred when it denied his petition for
resentencing without first appointing counsel. We affirm.
AND PROCEDURAL HISTORY
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.].)
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.
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
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.)
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 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).)
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 ...