Filed 12/29/23 P. v. Tarkington CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY L. TARKINGTON,

Defendant and Appellant.

B329627

(Los Angeles County

Super. Ct. No. BA134487)

APPEAL from an order of the Superior Court of Los 

Angeles County, H. Clay Jacke II, Judge. Affirmed.

Anthony Tarkington, in pro. per.; and James M. Crawford, 

under appointment by the Court of Appeal, for Defendant 

and Appellant.

No appearance for Plaintiff and Respondent.
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In 1997, a jury found Anthony Tarkington guilty of second 

degree murder and found that he personally used a knife. He 

thereafter petitioned for resentencing under Penal Code section 

1172.6,

1 which limited accomplice liability for murder. The trial 

court denied the petition, and Tarkington appealed. His 

appellate counsel filed a brief under People v. Delgadillo (2022) 

14 Cal.5th 216 (Delgadillo). Tarkington filed a supplemental 

brief. As we now explain, the trial court did not err in denying 

the petition.

INTRODUCTION

In 1996, Tarkington fatally stabbed Donald Fitzpatrick 

during a fistfight. Consequently, Tarkington was charged with 

murder, and a jury found him guilty of second degree murder 

(§ 187, subd. (a)) and found true the allegation that he personally 

used a knife (§ 12022, subd. (b)).2 That same year, the trial court 

sentenced Tarkington to “46 years to life” in prison.

In 2022, Tarkington petitioned for resentencing on his 

murder conviction under section 1172.6, and the trial court 

appointed counsel to represent him. The People opposed the 

1 All further undesignated statutory references are to the 

Penal Code.

Effective June 30, 2022, section 1170.95 was renumbered to 

section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

2 At the close of evidence at Tarkington’s trial, the trial court 

found the evidence insufficient to show Tarkington acted with 

premeditation and deliberation and granted a judgment of 

acquittal on the first degree murder charge.
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petition on the ground that the trial court did not instruct 

Tarkington’s jury on felony murder, the natural and probable 

consequences doctrine, or any theory that imputed malice to him. 

Instead, he was prosecuted and convicted as the actual killer who 

acted with malice aforethought. With its opposition, the People 

submitted the jury instructions. The trial court denied the 

petition, noting that the jury was not instructed on an invalid 

theory and that the jury had found Tarkington personally used a 

knife.

This appeal followed. Tarkington’s appellate counsel filed 

an opening brief that raised no issues and asked this court to 

independently review the record under Delgadillo, supra, 14 

Cal.5th 216. We directed appellant’s counsel to send the record 

and a copy of the opening brief to Tarkington, and we advised 

that within 30 days of the date of the notice, he could submit a 

supplemental brief or letter stating any grounds for an appeal, or 

contentions, or arguments he wished this court to consider. 

Tarkington submitted a supplemental brief in which he argued

that his petition for resentencing was improperly denied without 

an evidentiary hearing and that errors in his trial require

reversal of the judgment of conviction.

DISCUSSION

To the end of ensuring a person’s sentence is commensurate 

with the person’s individual criminal culpability, Senate Bill 

No. 1437 (2017–2018 Reg. Sess.) limited accomplice liability 

under the felony-murder rule, eliminated the natural and 

probable consequences doctrine as it relates to murder, and

eliminated convictions for murder based on a theory under which 

malice is imputed to a person based solely on that person’s 

participation in a crime. (See generally People v. Reyes (2023) 14 
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Cal.5th 981, 986; People v. Lewis (2021) 11 Cal.5th 952, 957, 959; 

People v. Gentile (2020) 10 Cal.5th 830, 842–843.) Senate Bill 

No. 1437 added section 189, subdivision (e) (limiting application 

of the felony-murder rule) and section 188, subdivision (a)(3) 

(stating that “to be convicted of murder, a principal in a crime 

shall act with malice aforethought” and malice “shall not be 

imputed to a person based solely on his or her participation in a 

crime”).

Senate Bill No. 1437 also created a procedure, codified at 

section 1172.6, for a person convicted of murder under the former 

law to be resentenced if the person could no longer be convicted of 

murder under the amended law. (People v. Lewis, supra, 11 

Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) 

At the prima facie stage, the trial court takes as true the 

petitioner’s factual allegations and assesses whether the 

petitioner would be entitled to relief if those allegations were 

proved. (Lewis, at p. 971.) In determining whether the petitioner 

has made a prima facie case for relief, the trial court may look at 

the record of conviction, including jury instructions, verdicts and 

closing argument, to determine readily ascertainable facts such 

as the crime of conviction. (People v. Duchine (2021) 60 

Cal.App.5th 798, 815; see, e.g., People v. Harden (2022) 81 

Cal.App.5th 45, 56.) At the prima facie stage, the trial court does 

not engage in fact finding that involves weighing evidence or 

exercising discretion. (Lewis, at p. 972.) If a petition establishes 

a prima facie case for relief, the trial court must appoint counsel 

if requested, issue an order to show cause, and hold an 

evidentiary hearing. (§ 1172.6, subds. (b)(3), (c), & (d)(1).) 

Otherwise, the trial court may dismiss meritless petitions that do 

not establish a prima facie case for relief. (Lewis, at p. 971.) 
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Tarkington did not establish a prima facie case for relief. 

Tarkington’s jury was not instructed on felony murder, the 

natural and probable consequences doctrine or any theory under 

which malice could have been imputed to him. The jury also 

found that he personally used a knife (§ 12022, subd. (b)). The 

record of conviction therefore shows that Tarkington was the sole 

participant in the crime and actual killer, and he was convicted 

as such. (See, e.g., Delgadillo, supra, 14 Cal.5th at p. 233

[defendant ineligible for § 1172.6 relief where record made clear 

he was actual killer and only participant in killing].)

As for arguments Tarkington raises in his supplemental 

brief, they primarily concern alleged error at his trial, including 

that being tried for second degree murder after being acquitted of 

first degree murder violated his constitutional rights. Such 

claims are not properly before us, as a section 1172.6 petition is 

not a vehicle to relitigate alleged trial errors. (See, e.g., People v. 

Coley (2022) 77 Cal.App.5th 539, 549 [§ 1172.6 “is not a means by 

which a defendant can relitigate issues already decided”]; People 

v. Farfan (2021) 71 Cal.App.5th 942, 947 [“mere filing” of 

§ 1172.6 petition doesn’t afford petitioner new opportunity to 

raise trial error claims or attack sufficiency of evidence to support 

jury’s findings]; People v. DeHuff (2021) 63 Cal.App.5th 428, 438 

[§ 1172.6 is not a direct appeal].)

To the extent Tarkington asserts that the trial court was 

biased in ruling on his petition for resentencing, the record 

contains no evidence to support that assertion. Rather, a trial 

court’s rulings against a party do not establish judicial bias. 

(Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519, 1539.) 

Similarly, to the extent Tarkington asserts his appellate 

counsel was incompetent, he did not file a motion to have him 
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removed as counsel, and the record contains no evidence to

support any assertion of incompetence. 

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.