Filed 9/14/20 P. v. Wright CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

PATRICIA WRIGHT,

Defendant and Appellant.

 B300278

 (Los Angeles County

 Super. Ct. No. BA154420)

APPEAL from an order of the Superior Court of Los 

Angeles County, Curtis B. Rappe, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, and Charles S. Lee and Stephanie C. 

Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Patricia Wright appeals from the superior court’s order 

denying her petition under Penal Code section 1170.95,1 which 

allows certain defendants convicted of murder under a felony 

murder or natural and probable consequences theory to petition 

the court to vacate their convictions and for resentencing. Wright 

argues that her petition stated a prima facie case for relief under 

the statute and that the superior court erred in denying the 

petition without appointing her counsel or giving Wright the 

opportunity to file a brief in support of her petition. Wright, 

however, was not convicted under a felony murder or natural and 

probable consequences theory. She was convicted of first degree 

murder with a special circumstance finding, which the superior 

court properly determined after reviewing portions of the trial 

transcript, the jury instructions, and this court’s opinion in 

Wright’s prior appeal. Therefore, Wright did not state a prima 

facie case for relief, and the superior court did not err in 

summarily denying her petition.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Wright of First Degree Murder, and

This Court Affirms 

On September 22, 1981 police found the body of Willie 

Jerome Scott, Wright’s husband, in Scott’s motor home. On 

September 25, 1981 Wright made claims on two of Scott’s life 

insurance policies, a $15,000 policy purchased in June 1980 and a 

$25,000 policy purchased in August 1981. Wright’s brother later 

1 Statutory references are to the Penal Code.
3

told police Wright hired Larry Slaughter to kill Scott. Wright’s 

sister-in-law also told police Wright forged Scott’s signature on 

the second insurance policy and admitted she killed Scott to 

collect the insurance money. 

After years of investigation, the People filed a criminal 

complaint against Wright in 1997, alleging she hired Slaughter to 

murder Scott. A jury convicted Wright of first degree murder 

(§ 187, subd. (a)) and found true the special circumstance 

allegation she committed the murder for financial gain. (§ 190.2, 

subd. (a)(1).) The trial court sentenced Wright to prison for life

without the possibility of parole. Wright appealed, and in 2000 

this court affirmed Wright’s conviction. (People v. Wright (July 

17, 2000, B133341) [nonpub. opn.].)

B. The Legislature Enacts Senate Bill No. 1437 and 

Establishes the Section 1170.95 Petition Procedure

Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4), effective 

January 1, 2019, amended the felony murder rule and eliminated 

the natural and probable consequences doctrine as it relates to 

murder by amending sections 188 and 189. New section 188,

subdivision (a)(3), provides, “Except as stated in subdivision (e) of 

Section 189, in order to be convicted of murder, a principal in a 

crime shall act with malice aforethought. Malice shall not be 

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

crime.” New section 189, subdivision (e), provides that, with 

respect to a participant in the perpetration or attempted 

perpetration of a felony listed in section 189, subdivision (a), in 

which a death occurs (that is, those crimes that provide the basis 

for first degree felony murder), an individual is liable for murder 

“only if one of the following is proven: [¶] (1) The person was 
4

the actual killer. [¶] (2) The person was not the actual killer, 

but, with the intent to kill, aided, abetted, counseled, 

commanded, induced, solicited, requested, or assisted the actual 

killer in the commission of murder in the first degree. [¶]

(3) The person was a major participant in the underlying felony 

and acted with reckless indifference to human life, as described 

in subdivision (d) of Section 190.2.” (See People v. Galvan (2020) 

52 Cal.App.5th 1134, 1140 [Senate Bill No. 1437 “eliminated the 

natural and probable consequences doctrine as a basis for murder 

liability, and added a requirement for felony murder that a 

defendant must have been at least a major participant in the 

underlying felony and have acted with reckless indifference to 

human life”].)

Senate Bill No. 1437, through new section 1170.95, also 

authorizes an individual convicted of felony murder or murder 

under a natural and probable consequences theory to petition the 

sentencing court to vacate the conviction and to be resentenced 

on any remaining counts if the individual could not have been 

convicted of murder under Senate Bill No. 1437’s changes to the 

definition of the crime. The petition must include a declaration

by the petitioner he or she is eligible for relief under this section,

the superior court case number and year of the petitioner’s

conviction, and a statement whether the petitioner requests the

appointment of counsel. (§ 1170.95, subd. (b)(1); see People v. 

Verdugo (2020) 44 Cal.App.5th 320, 326-327, review granted 

Mar. 18, 2020, S260493 (Verdugo).)2 

2 The Supreme Court deferred briefing in Verdugo, supra, 

S260493 pending its decision in People v. Lewis (2020) 43 

Cal.App.5th 1128, review granted March 18, 2020, S260598. The 

Supreme Court limited briefing and argument in Lewis to the 
5

If the petition contains all required information,

section 1170.95, subdivision (c), prescribes a two-step procedure

for the court to determine whether to issue an order to show cause:

“‘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 . . . and

the petitioner may file and serve a reply . . . . 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.’” (Verdugo, supra,

44 Cal.App.5th at p. 327.) Thus, subdivision (c), “prescribes two 

additional court reviews before an order to show cause may issue, 

one made before any briefing to determine whether the petitioner 

has made a prima facie showing he or she falls within section 

1170.95—that is, that the petitioner may be eligible for relief—

and a second after briefing by both sides to determine whether 

the petitioner has made a prima facie showing he or she is 

entitled to relief.” (Verdugo, at pp. 327-328.)

If the court determines the petitioner has made a prima 

facie showing and issues an order to show cause, the 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. (§ 1170.95, subd. (d)(1); see 

Verdugo, supra, 44 Cal.App.5th at p. 327.) At the hearing the 

following issues: (1) May superior courts consider the record of 

conviction in determining whether a defendant has made a prima 

facie showing of eligibility for relief under Penal Code 

section 1170.95? (2) When does the right to appointed counsel 

arise under Penal Code section 1170.95, subdivision (c)?
6

prosecution has the burden of proving beyond a reasonable doubt 

the petitioner is ineligible for resentencing. (§ 1170.95, 

subd. (d)(3).) The prosecutor and petitioner may rely on the 

record of conviction or offer new or additional evidence. (See 

People v. Tarkington (2020) 49 Cal.App.5th 892, 898-899, review 

granted Aug. 12, 2020, S263219 (Tarkington); People v. Edwards

(2020) 48 Cal.App.5th 666, 674, review granted July 8, 2020, 

S262481; People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, 

review granted Mar. 18, 2020, S260598.) 

C. Wright Files a Petition Under Section 1170.95

On January 10, 2019 Wright filed a petition for 

resentencing under section 1170.95.3 On February 15, 2019 the 

superior court denied Wright’s petition. The court stated it had 

reviewed the petition, the file, the trial transcript including the 

testimony and jury instructions, and this court’s opinion 

affirming Wright’s conviction. The superior court summarily 

denied the petition, finding that Wright was “not a person 

convicted of felony murder or murder under a natural and 

probable consequences theory since neither the argument of 

counsel nor the jury instructions [was] based on either theory” 

and that “the evidence at trial shows she was convicted of first 

degree murder based on aiding and abetting the crime with the 

specific intent to kill.” The court further found: “The evidence 

also shows she was a major participant who was at the murder 

and whose participation was based on the desire to obtain 

financial gain from the proceeds of a recently acquired life 

insurance policy on the victim which named [her] as the 

beneficiary upon the victim’s death. Under these facts, to say the 

3 This petition is not in the record.
7

least, she acted with reckless indifference to human life.” The 

court concluded: “Therefore, it cannot be said that [Wright] could 

not be convicted of first or second degree murder because of the 

changes to section 188 or 189 made effective January 1, 2019.” 

Wright filed another petition for resentencing under section 

1170.95 in May 2019. Wright alleged she could not now be 

convicted of first or second degree murder because of the changes 

to Penal Code sections 188 and 189. Wright stated (a) she was 

not the actual killer, (b) she did not, with the intent to kill, aid 

and abet the actual killer in the commission of murder, (c) she 

did not act with reckless indifference to human life as a major 

participant in the underlying felony, and (d) the victim was not a 

police officer. Wright also asked the court to appoint counsel for 

her during the resentencing process. The superior court denied 

this petition, stating it had previously denied the same petition 

on February 15, 2019. Wright appealed. 

DISCUSSION

A. The Superior Court Did Not Err in Determining 

Wright Is Ineligible for Resentencing 

Wright contends her petition stated a prima facie case for 

relief under section 1170.95, subdivision (a), by alleging that she 

was convicted of first or second degree murder under the felony 

murder rule or the natural and probable consequences doctrine 

and that she could not now be convicted of first or second degree 

murder after the amendments to sections 188 and 189. 

According to Wright, these allegations, supported by her 

assertions that she was not the actual killer and that she did not, 

with the intent to kill, aid and abet the actual killer in 
8

committing the murder, stated a prima facie case, which in turn 

required the superior court to appoint counsel and order briefing. 

As we explained in Verdugo, however, the superior court, 

after receiving a facially sufficient petition, may examine readily 

available portions of the record of conviction to determine 

whether the petitioner has made a prima facie showing and thus 

falls within the provisions of section 1170.95. (Verdugo, supra, 44 

Cal.App.5th at pp. 329-331.) In particular, the court may review 

“the complaint, information, or indictment filed against the 

petitioner; the verdict form or factual basis documentation for a 

negotiated plea; and the abstract of judgment.” (Id. at 

pp. 329-330; see People v. Soto (2020) 51 Cal.App.5th 1043, 1055; 

Tarkington, supra, 49 Cal.App.5th at p. 908; People v. Edwards, 

supra, 48 Cal.App.5th at p. 674.) The court may also review a 

“court of appeal opinion, whether or not published, [that] is part 

of the appellant’s record of conviction.” (Verdugo, at p. 333; 

People v. Lewis, supra, 43 Cal.App.5th at p. 1138.) As we 

cautioned in Verdugo, however, because at this stage the court is 

only evaluating whether the petitioner has made a prima facie 

showing he or she falls within the provisions of the statute, if the 

petitioner’s ineligibility for resentencing under section 1170.95 is 

not established as a matter of law by the record of conviction, the 

court must appoint counsel if requested, direct the prosecutor to 

file a response to the petition, permit the petitioner to file a reply,

and then determine, with the benefit of the parties’ briefing and 

analysis, whether the petitioner has made a prima facie showing 

he or she is entitled to relief. (Verdugo, at p. 330.) 

Here, the record of conviction shows that Wright was not 

convicted of felony murder or murder under the natural and 

probable consequences theory. The court did not instruct the jury 
9

on felony murder or murder under a natural and probable 

consequences theory, nor is there any reference to either theory 

in this court’s prior opinion. And Wright does not argue she was

convicted under either such theory. Therefore, section 1170.95 

does not apply to Wright’s conviction.

In addition, the jury found true the special circumstance 

allegation she committed the murder for financial gain. (§ 190.2, 

subd. (a)(1).) The version of this special circumstance instruction 

used at trial, CALJIC No. 8.80 (pre June 6, 1990), instructed the 

jury: “If you find beyond a reasonable doubt that the defendant 

was either the actual killer or an aider or abettor, but you are 

unable to decide which, then you must also find beyond a 

reasonable doubt that the defendant with intent to kill aided and 

abetted an actor in commission of the murder in the first degree, 

in order to find the special circumstance to be true. On the other 

hand, if you find beyond a reasonable doubt that Patricia Wright 

was the actual killer, you need not find the defendant intended to 

kill a human being in order to find the special circumstance to be 

true.”4 Because the jury found the special circumstance 

allegation true, it necessarily must have found Wright was either 

the actual killer or (more likely) she was an aider and abettor 

4 The trial court also instructed the jury with CALJIC 

No. 8.81.1 (pre June 6, 1990): “To find that the special 

circumstance, referred to in these instructions as murder for 

financial gain, is true, each of the following facts must be proved:

[¶] 1. The murder was intentional; and [¶] 2. It was carried out 

for financial gain; and [¶] 3. The defendant believed the death of 

the victim would result in the desired financial gain.” 
10

with the intent to kill.5 (See People v. Soto, supra, 51 Cal.App.5th 

at p. 1055 [“[t]he jury instructions given at a petitioner’s trial 

may provide ‘readily ascertainable facts from the record’ that 

refute the petitioner’s showing”].) Because either theory was still 

valid after the changes made by Senate Bill No. 1437 to sections 

188 and 189, Wright is ineligible for resentencing under section 

1170.95. (See Tarkington, supra, 49 Cal.App.5th at p. 899

[petitioner who is the actual killer is ineligible for resentencing 

under section 1170.95 because he was convicted under “a theory 

that survives the changes to sections 188 and 189”]; People v. 

Offley (2020) 48 Cal.App.5th 588, 595-596 [direct aiding and 

abetting theory of liability survives the changes following Senate 

Bill No. 1437].) 

Neither the appointment of counsel nor an order setting a

briefing schedule would have changed the fact Wright is 

ineligible for relief under section 1170.95 as a matter of law. (See 

People v. Law (2020) 48 Cal.App.5th 811, 825 [denial of 

petitioner’s section 1170.95 petition was proper because, “[g]iven 

the trial evidence, counsel would not have been able to 

demonstrate in a reply brief or otherwise” the petitioner was 

eligible for relief], review granted July 8, 2020, S262490; 

Verdugo, supra, 44 Cal.App.5th at pp. 332-333 [if “the petitioner 

has failed to make the initial prima facie showing required by 

[section 1170.95,] subdivision (c), counsel need not be appointed”]; 

5 During closing argument, the prosecutor argued that 

Wright was not the actual killer, but that she directly aided and 

abetted the murder: “[Wright] didn’t kill this man. She’s not the 

one. She had her man and it was Larry Slaughter. But does that 

mean that she shouldn’t be responsible for this? That’s not the 

law. You don’t get to set up a killing and say, ‘I’m not the actual 

perpetrator. I’m not responsible.’” 
11

but see People v. Cooper (Sept. 1, 2020, A156880) ___ Cal.App.5th 

___, ___ [2020 WL 5175210, p. 10] [“a petitioner is entitled to 

counsel upon the filing of a facially sufficient petition for relief 

that requests counsel be appointed”].) The trial court did not err 

in summarily denying her petition under section 1170.95.

B. The Superior Court Did Not Violate Wright’s 

Constitutional Right to Counsel

Contrary to Wright’s contention, the superior court did not 

violate her constitutional right to counsel. The relief afforded by 

section 1170.95 is “not subject to Sixth Amendment analysis. 

Rather, the Legislature’s changes constituted an act of lenity that 

does not implicate defendants’ Sixth Amendment rights.” (People

v. Anthony (2019) 32 Cal.App.5th 1102, 1156; accord, People v.

Lopez (2019) 38 Cal.App.5th 1087, 1114-1115, review granted 

Nov. 13, 2019, S258175; see People v. Lewis, supra, 43 

Cal.App.5th at p. 1138 [initial eligibility determination under

section 1170.95 is analogous to a determination whether to

summarily deny a habeas corpus petition, to which no

constitutional right to counsel attaches]; cf. McGinnis v. Superior

Court (2017) 7 Cal.App.5th 1240, 1243, fn. 2 [“[a]ny right to

habeas corpus counsel, absent an order to show cause, is purely

statutory”].)
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DISPOSITION

The order is affirmed. 

SEGAL, J. 

We concur:

PERLUSS, P. J.

FEUER, J.