Filed 1/7/20 P. v. Thompson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

TYNICKIA THOMPSON,

Defendant and Appellant.

G057822

(Super. Ct. No. 96CF1505)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, and Meredith S. White, Deputy Attorney General, for Plaintiff and Respondent.

* * *

Defendant Tynickia Thompson appeals from a post-judgment order denying her Penal Code section 1170.95 petition to vacate her murder conviction and for resentencing. We appointed counsel to represent her on appeal.

In conducting his analysis of potential appellate issues, appointed counsel informed us in his declaration that he had “thoroughly reviewed the record” and consulted with a staff attorney at Appellate Defenders, Inc. Counsel then filed a brief pursuant to the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. While not arguing against his client, counsel set forth the facts of the case and advised us he was unable to find an issue to argue on her behalf. Thompson was given the opportunity to file written argument on her own behalf; she has not done so.

As a result of our independent record review, we identified two issues that could, if resolved in Thompson’s favor, result in reversal of the judgment. We therefore invited counsel to file supplemental letter briefs on the following issues:

(1) Penal Code section 1170.95(c) requires that if appellant requests the appointment of counsel, “the court shall appoint counsel to represent the petitioner.” Since Thompson requested the appointment of counsel in her petition, does the superior court’s failure to do so constitute reversible error?

(2) As a part of the factual basis for her two pleas of guilty to first degree murder, Thompson offered the trial court the following: “In Orange County on May 8, 1996 I intentionally killed John and Helen Hancock with a .38 handgun. These two murders took place during the commission of robbery and burglary and are murders of the first degree.” Since the appellate record contains no other information identifying the legal theory underlying Thompson’s murder convictions, does this factual basis establish the prima facie showing required by Penal Code section 1170.95(c)?

After reviewing the entire record, including the parties’ supplemental briefs, we conclude that Thompson did not establish a prima facie showing that she was entitled to the relief she sought. As a result, even if the trial court erred by failing to appoint counsel in the face of her request, any such error was harmless. We find no other arguable appellate issues. We therefore affirm the judgment.

FACTS

The relevant facts can be briefly summarized.

In 1996, Thompson was charged with two counts of first-degree murder, arson, and conspiracy. It was also alleged she personally used a firearm to murder her victims. There was a special circumstance of multiple murder attached to the murder counts. In 1999, while she was represented by the public defender’s office, Thompson pleaded guilty to those charges and admitted that the special allegations were true. As a factual basis for her guilty pleas, she admitted in writing that “[i]n Orange County on May 8, 1996, I intentionally killed John and Helen Hancock with a .38 handgun. These two murders took place during the commission of robbery and burglary and are murders of the first degree.” Thompson was then sentenced to life in prison without the possibility of parole, a sentence she continues to serve.

In 2019, Thompson filed a petition in the Orange County Superior Court, pursuant to recently-enacted Penal Code section 1170.95, requesting that she be resentenced. She asserted in her petition that she “pled guilty or no contest to 1st or 2nd degree murder in lieu of going to trial because I believed I could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine.”

On April 18, 2019, the trial court denied Thompson’s petition without conducting a hearing or appointing counsel to assist her, finding that it “does not set forth a prima facie case for relief under the statute.”

Thompson appeals from that denial.

DISCUSSION

Following the Wende guidelines, we have reviewed the entire record which includes the trial court’s recent Minute Order ruling as well as the Tahl form executed by Thompson at the time she entered her guilty pleas. Thompson’s counsel directed us to only these possible appellate issues: “Did the trial court err in denying appellant’s petition for resentencing pursuant to section 1170.95? . . . Was appellant convicted of either felony murder or murder under a natural and probable consequences theory?” We have considered these issues along with those we asked the parties to brief. With them in mind, we turn our attention to the brief history of Penal Code section 1170.95.

Effective January 1, 2019, the Legislature effected a sea change in California jurisprudence regarding murder when it passed Senate Bill 1437. The purpose of the law was set forth in the legislation: “There is a need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § 1, subd. (b).) At the same time, the Legislature expressed its intent as to the scope of the new statutory scheme: “It is necessary 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.” (Id., § 1, subd. (f), italics added.)

Penal Code section 1170.95 was enacted pursuant to Senate Bill 1437. The new law is retroactive. (People v. Martinez (2019) 31 Cal.App.5th 719, 725.) Persons convicted of murder as aiders and abettors, or under a natural and probable consequences theory of liability, may petition the superior court for relief. Thompson has filed such a petition here.

The section 1170.95 resentencing process potentially involves a two-step analysis. The first step requires the trial court to determine whether the petitioner has set forth a prima facie claim for relief. If that step is satisfied, as a second step, the court “shall issue an order to show cause.” (Pen. Code, § 1170.95, subd. (c).) Although its minute order lacks detail, it appears to us the trial court here did not get past the first step as it found that “[t]he petition does not set forth a prima facie case for relief under the statute.” This finding is well-founded since, in the factual basis Thompson offered to the court as a basis for her guilty pleas, she admitted that she was “the actual killer” of both homicide victims, and that she “intentionally” used a .38 caliber handgun to murder them. There is no factual ambiguity or uncertainty here. Given the Legislature’s unmistakable statement of intent, as noted above, to exclude an “actual killer” from relief under Penal Code section 1170.95, the fact that Thompson murdered her victims as she also committed robbery and burglary is of no consequence. Thompson is statutorily ineligible for the relief she seeks. The trial court did not err in its ruling.

We note the mandatory nature of the language chosen by the Legislature in Penal Code section 1170.95, subdivision (c), related to the appointment of counsel: ‘“If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.”’ The only condition precedent to the appointment of counsel is the petitioner’s request for such appointment. “If the statutory language is unambiguous, then its plain meaning controls.” (People v. Ruiz (2018) 4 Cal.5th 1100, 1106.) Nonetheless, due to Thompson’s inability to make a prima facie showing that she is entitled to relief based on the specific facts of this case, we need not determine whether the trial court erred here by failing to appoint counsel to assist her. If that failure constituted error, any such error would, in light of Thompson’s admissions, be harmless under any applicable standard of review.

DISPOSITION

The judgment is affirmed.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.