Filed 4/7/21 P. v. Twyman CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY DAWAYNE 

TWYMAN,

Defendant and Appellant.

B304515, B306643

(Los Angeles County

Super. Ct. No. TA139642)

APPEAL from orders of the Superior Court of Los Angeles 

County, Pat Connolly, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Beccera, Attorney General, Lance E. Winters, Chief 

Asssitant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Charles S. Lee and Nima Razfar, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________________
2

Appellant appeals the denial of his petitions for 

resentencing pursuant to Penal Code section 1170.95.12 Because 

we find appellant entered a plea to attempted murder, which is 

not named as a conviction within the remedial provisions of 

section 1170.95, we affirm.

On September 29, 2017, appellant Anthony Dawayne 

Twyman entered a plea to attempted murder and other 

sentencing enhancements. The trial court sentenced him to 

20 years imprisonment.

On October 17, 2019, appellant filed a petition for 

resentencing pursuant to section 1170.95. Without appointing 

counsel, the trial court summarily denied the petition, finding 

appellant ineligible for relief because he was “not convicted of 

murder.”

Twyman filed a timely notice of appeal. He argues the trial 

court’s summary denial of his petition without appointing counsel 

violated not only the clear language of the statute, but also his 

state and federal constitutional rights to due process and the 

assistance of counsel.

Section 1170.95 allows defendants who have been convicted 

of murder under the theory of felony murder or the doctrine of 

natural and probable consequences to petition the trial court to 

vacate such convictions and resentence them. Section 1170.95 

has been the subject of numerous appellate decisions from around 

1 All undesignated statutory references are to the Penal 

Code.

2 Appellant filed two notices of appeal from the denial of two 

resentencing petitions he filed. We ordered the appeals 

consolidated. This disposition addresses all issues raised by the 

denials of the two petitions.
3

the state. In particular, the timing of appointment of counsel and 

the eligibility of petitioners convicted of attempted murder, 

rather than murder, have been expressly considered. Both issues 

are currently before our Supreme Court. (People v. Lewis (2020) 

43 Cal.App.5th 1128, 1139–1140 [trial court may deny petition 

without appointing counsel where the petition shows ineligibility 

for relief as a matter of law], review granted Mar. 18, 2020, 

S260598; People v. Lopez (2019) 38 Cal.App.5th 1087, 1104–1105

[attempted murder convictions are excluded from relief under the 

statute], review granted Nov. 13, 2019, S258175; see also People 

v. Dennis (2020) 47 Cal.App.5th 838, 841 [same], review granted 

July 29, 2020, S262184; People v. Alaybue (2020) 51 Cal.App.5th 

207, 222–223 [same].

We agree with the court in People v. Lopez that the plain 

language of section 1170.95 and its legislative history limit 

eligibility for resentencing to convictions of murder, not 

attempted murder, and that the limitation does not violate 

equal protection. (People v. Lopez, supra, 38 Cal.App.5th at 

pp. 1104–1105, 1112; see also People v. Munoz (2020) 

39 Cal.App.5th 738, 753, review granted Nov. 26, 2019, S258234.) 

We also agree with the court in People v. Lewis that the trial 

court may find a petitioner ineligible for resentencing under the 

statute, as a matter of law, without first appointing counsel. 

(People v. Lewis, supra, 43 Cal.App.5th at pp. 1139–1140; see also 

People v. Verdugo (2020) 44 Cal.App.5th 320, 332–333 [same], 

review granted Mar. 18, 2020, S260493.)

Finally, we disagree that appellant’s Sixth Amendment

right to the assistance of counsel is violated by our interpretation 

of section 1170.95. A section 1170.95 proceeding is a collateral 

sentence modification unrelated to the criminal trial process. It 
4

is an “act of lenity intended to give prisoners the benefit of later 

enacted adjustments to the judgments.” (Dillon v. United States

(2010) 560 U.S. 817, 828 [no Sixth Amendment right to jury trial 

in statutory proceeding to modify sentence because the statute 

constituted an act of lenity].)

Similarly, we disagree with appellant that his 

constitutional right to due process protection against the 

arbitrary deprivation of state-created rights is at issue. Because 

we find that there is no state-created right to assistance of 

counsel for petitioners, like appellant, who are ineligible for relief 

as a matter of law, there is no due process violation.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

BIGELOW, P.J.

WILEY, J.