Filed 12/17/20 P. v. Carroll CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

MAURICE VERNELL 

CARROLL,

Defendant and Appellant.

 B299815

 (Los Angeles County

 Super. Ct. No. BA203327)

APPEAL from an order of the Superior Court of Los 

Angeles County, William R. Pounders, Judge. Affirmed.

Doris M. LeRoy, 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, Assistant 

Attorney General, Charles S. Lee and Viet H. Nguyen, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________
2

Maurice Vernell Carroll appeals from a postjudgment order 

summarily denying his petition for resentencing under Penal 

Code section 1170.951 as to his first degree murder conviction. 

Carroll contends because his petition stated the necessary 

elements for eligibility for relief, the superior court erred in 

denying his petition without appointing counsel. Because the 

record of conviction shows Carroll was either the actual shooter 

or aided and abetted the shooter with the intent to kill, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Shooting

On May 16, 2000 Carroll and Terrell Cunningham, both 

members of the Rollin 20’s gang, entered a video store.2 After 

warning a customer to leave the store, Cunningham pulled out a 

gun and pointed it at Roberto Garcia, the owner of the store, and 

Reynaldo Araujo, Garcia’s nephew. Cunningham ordered Garcia 

1 All statutory references are to the Penal code.

2 The summary of facts is drawn from our opinion in People 

v. Carroll (Sept. 10, 2003, B157628) (nonpub. opn.) (Carroll I). 

On September 28, 2020 the People filed a request for judicial 

notice asking this court to take judicial notice of the appellate 

records and our opinion in Carroll I. We denied the request to 

take judicial notice of the opinion as unnecessary and construed 

the remainder of the request as a motion to augment the record 

on appeal, which we granted. Carroll filed a motion to diminish 

the record on appeal on the basis that “nothing in the record of 

the proceedings appealed from herein indicates the prior 

appellate record was before the court below when it ruled.” 

Because we do not rely on the appellate record in Carroll I, we 

grant Carroll’s motion.
3

and Araujo into a corner at the back of the store and told them to 

get on the floor. When Cunningham demanded to know where 

Garcia kept the money, Garcia told him there was no money.

Cunningham then directed Garcia and Araujo to the cash 

register and ordered them to open it. When Cunningham 

discovered the register only had five dollars, Cunningham 

became angry and demanded, “‘Show me the money or I’ll kill you 

both.’” Cunningham took Garcia and Araujo to the back of the 

store, made them lie on the floor, and emptied their pockets. 

Carroll, who had been stuffing video games into garbage bags, 

said to Cunningham, “‘Let me kill them both.’” After hearing 

this, Garcia jumped up and ran out the back door. As he was 

escaping, Garcia heard gunshots. Garcia then saw Carroll and 

Cunningham drive away. The police arrived and discovered 

Araujo’s body in the back room. He had died from three fatal 

gunshots, one to the back of his head and two to his back.

Although Carroll initially bragged that he had been the 

shooter, he changed his story after discovering that Cunningham 

“had snitched.” Cunningham claimed Carroll was the shooter. 

According to Cunningham, he gave the gun to Carroll to watch 

Garcia and Araujo while Cunningham went to the door to speak 

to the “lookout.” When he opened the door, Cunningham heard 

the shots, and then he and Carroll ran to the getaway vehicle.

B. Carroll’s Conviction and Appeal

Carroll and Cunningham were tried before separate juries. 

The jury found Carroll guilty of the murder of Araujo (§ 187, 

subd. (a); count 1), and it found true the special circumstance 

that the murder was committed during the commission of a 

robbery (§ 190.2, subd. (a)(17)(A)). The jury also found Carroll 
4

guilty of the attempted willful, deliberate, and premeditated 

murder of Garcia (§§ 187, subd. (a), 664, subd. (a); count 2). 

Further, the jury found Carroll guilty of the robberies of Araujo 

and Garcia (§ 211; counts 3 & 4). The jury found true as to each 

count the gang enhancement allegation (§ 186.22, subd. (b)(1)) 

and that in the commission of the crimes a principal personally 

used a firearm, personally and intentionally discharged a 

firearm, and personally and intentionally discharged a firearm 

causing great bodily injury or death (§ 12022.53, subds. (b), (c), 

(d) & (e)(1)). The jury did not find true the allegations Carroll

personally used and discharged a firearm, causing great bodily 

injury or death (§ 12022.53, subds. (b), (c), (d)).

3 The trial court 

sentenced Carroll to life without the possibility of parole plus a 

consecutive sentence of 25 years to life for the firearm-use 

enhancement under section 12022.53, subdivisions (d) and (e)(1). 

(Carroll I, supra, B157628.)

We affirmed Carroll’s convictions but concluded the trial 

court erred by failing to instruct the jury on the special 

circumstance allegation with CALJIC No. 8.80.1, which explains 

the mental state required for a true finding. However, we found 

the error harmless beyond a reasonable doubt, reasoning, “In 

Carroll’s case, even if his jury found he was not the actual killer 

but instead was an aider and abettor, they necessarily found he 

3 The jury found Cunningham guilty of first degree murder 

and two counts of robbery, and it found true the special 

circumstance, gang, and firearm-use allegations, except for the 

allegation Cunningham personally and intentionally discharged a 

firearm. However, the jury was unable to reach a verdict on the 

attempted murder charge, and the court declared a mistrial on 

that count. (Carroll I, supra, B157628.)
5

intended to kill under other properly given jury instructions. 

Carroll’s jury found him guilty of the attempted murder of 

Garcia. Under the court’s instructions in order to find him guilty 

of this charge his jury had to find ‘the person committing the act 

harbored express malice aforethought, namely, a specific intent 

to kill unlawfully another human being.’ In addition, Carroll's 

jury found true the special allegation the murder attempted was 

‘willful, deliberate and premeditated.’ These findings establish 

beyond doubt the jury was convinced Carroll harbored an intent 

to kill. Moreover, because the murder and attempted murder 

occurred nearly simultaneously, in very close quarters, and were 

presumably motivated by the same frustration over the lack of 

loot and desire to eliminate witnesses to the robbery, any 

reasonable juror would have found Carroll harbored the identical 

intent to kill with regard to both of his victims.”4 (Carroll I, 

supra, B157628, fns. omitted.)

C. Carroll’s Petition for Resentencing

On May 31, 2019 Carroll, representing himself, filed a form 

petition for resentencing and supporting declaration seeking to

vacate his murder conviction and be resentenced in accordance 

with recent statutory changes relating to accomplice liability for 

murder. In his petition, Carroll declared he “could not now be 

convicted of 1st or 2nd degree murder because of changes made to 

Penal Code §§ 188 and 189, effective January 1, 2019”; he “was 

not the actual killer”; he “did not, with the intent to kill, aid, 

4 In his closing argument the prosecutor acknowledged there 

was not sufficient evidence from which the jury could conclude 

beyond a reasonable doubt whether Carroll or Cunningham was 

the actual shooter. (Carroll I, supra, B157628.)
6

abet, counsel, command, induce, solicit, request, or assist the 

actual killer in the commission of murder in the first degree”; and 

“[t]here has been a prior determination by a court or jury that 

[he] was not a major participant and/or did not act with reckless 

indifference to human life.” Carroll also requested the court

appoint an attorney for him.

On June 11, 2019 the superior court summarily denied 

Carroll’s petition for resentencing. In its ruling, the court recited 

the facts set forth in Carroll I and explained, “The appellate court 

acknowledged the mental state required for a true finding of a 

felony-murder special circumstance for an aider and abettor; i.e., 

the aider and abettor had to have the intent to kill or be a major 

participant in the underlying felony and acted with reckless 

indifference to human life. The court held ‘in Carroll’s case, even 

if his jury found he was not the actual killer but instead was an 

aider and abettor, they necessarily found he intended to kill 

under other properly given jury instructions.’” The court also 

relied on the conclusion in Carroll I that because the murder and 

attempted murder occurred almost simultaneously in very close 

quarters with the same motivation, “‘any reasonable juror would 

have found Carroll harbored the identical intent to kill with 

regard to both of his victims.’” Carroll again appealed.5

5 Carroll’s attorney initially filed a brief in which she raised 

no issues. (People v. Cole (2020) 52 Cal.App.5th 1023, 1040, 

review granted Oct. 14, 2020, S264278; People v. Serrano (2012) 

211 Cal.App.4th 496, 503.) However, we requested supplemental 

briefing on 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 section 1170.95? [¶] (2) When does the right to appointed 
7

DISCUSSION

A. Senate Bill No. 1437

On September 30, 2018 Senate Bill No. 1437 (2017-2018 

Reg. Sess.) (Senate Bill 1437) was signed into law, effective 

January 1, 2019. Senate Bill 1437 was enacted 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.” (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 1; see People v. 

Verdugo (2020) 44 Cal.App.5th 320, 325 (Verdugo), review 

granted Mar. 18, 2020, S260493; People v. Perez (2020) 

54 Cal.App.5th 896, 902 (Perez), review granted Dec. 9, 2020, 

S265254.)

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.” Senate Bill 1437 also added section 

189, subdivision (e), which provides, “A participant in the 

perpetration or attempted perpetration of a felony listed in 

subdivision (a) in which a death occurs is liable for murder only if 

one of the following is proven: [¶] (1) The person was the actual 

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

counsel arise under section 1170.95, subdivision (c)?” In response 

to our order, Carroll and the People filed supplemental briefs.
8

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.”

Senate Bill 1437 also provides a procedure in new section 

1170.95 for 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 be resentenced on 

any remaining counts if he or she could not have been convicted 

of murder under Senate Bill 1437’s changes to sections 188 and 

189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4.) Section 1170.95, 

subdivision (b)(1), provides that the petition “shall be filed with 

the court that sentenced the petitioner.” The petition must 

include a declaration by the petitioner stating he or she is eligible 

for relief under the section, providing the superior court case 

number and year of the conviction, and indicating whether he or 

she requests the appointment of counsel. (§ 1170.95, subd.

(b)(1).)

As we concluded in Verdugo, the Legislature intended for 

there to be a three-step evaluation of a section 1170.95 petition. 

(Verdugo, supra, 44 Cal.App.5th at pp. 328, 332-333; see Perez, 

supra, 54 Cal.App.5th at p. 903.) “If any of the required 

information is missing and cannot be readily ascertained by the 

court, ‘the court may deny the petition without prejudice to the 

filing of another petition and advise the petitioner that the 

matter cannot be considered without the missing information.’ 

(§ 1170.95, subd. (b)(2).) [¶] If the petition contains all required 

information, section 1170.95, subdivision (c), prescribes a two-
9

step process for the court to determine if an order to show cause 

should issue: ‘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, at p. 327; accord, Perez, at p. 903; People v. Nguyen

(2020) 53 Cal.App.5th 1154, 1165 (Nguyen) [§ 1170.95, subd. (c), 

provides for two prima facie reviews]; People v. Tarkington (2020) 

49 Cal.App.5th 892, 900-901, review granted Aug. 12, 2020, 

S263219 (Tarkington); People v. Torres (2020) 46 Cal.App.5th 

1168, 1177, review granted June 24, 2020, S262011 

[“subdivisions (b) and (c) of [section 1170.95] require the trial 

court to make three separate determinations”].)

“In determining whether the petitioner has made a prima 

facie showing that he or she is entitled to relief under section 

1170.95, subdivision (c), ‘[t]he trial court should not evaluate the 

credibility of the petition’s assertions, but it need not credit 

factual assertions that are untrue as a matter of law—for 

example, a petitioner’s assertion that a particular conviction is 

eligible for relief where the crime is not listed in subdivision (a) of 

section 1170.95 as eligible for resentencing. Just as in habeas 

corpus, if the record “contain[s] facts refuting the allegations 

made in the petition . . . the court is justified in making a 

credibility determination adverse to the petitioner.” [Citation.] 

However, this authority to make determinations without 

conducting an evidentiary hearing pursuant to section 1170.95, 
10

subd. (d) is limited to readily ascertainable facts from the record 

(such as the crime of conviction), rather than factfinding 

involving the weighing of evidence or the exercise of 

discretion . . . .’” (Perez, supra, 54 Cal.App.5th at pp. 903-904, 

quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980; accord, 

Nguyen, supra, 53 Cal.App.5th at p. 1166.)

After issuing an order to show cause, the trial 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).) If 

a hearing is held, “[t]he prosecutor and the petitioner may rely on 

the record of conviction or offer new or additional evidence to 

meet their respective burdens.” (§ 1170.95, subd. (d)(3); see 

People v. Lewis (2020) 43 Cal.App.5th 1128, review granted 

Mar. 18, 2020, S260598.)6 The prosecution has the burden of 

proving beyond a reasonable doubt the petitioner is ineligible for 

resentencing. (§ 1170.95, subd. (d)(3).)

B. The Trial Court Did Not Err in Failing To Appoint Counsel 

Before Denying Carroll’s Petition for Resentencing

Carroll urges us to follow the First District’s holding in 

People v. Cooper (2020) 54 Cal.App.5th 106, 123, review granted 

6 The Supreme Court in People v. Lewis limited briefing and 

argument to 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)[?]” (Supreme Ct. Mins., Mar. 18, 2020, p. 364; 

People v. Lewis, supra, 43 Cal.App.5th 1128.)
11

November 10, 2020, S264684, and the dissenting opinion in 

Tarkington, supra, 49 Cal.App.5th at page 915 (dis. opn. of Lavin, 

J.), which rejected our conclusion in Verdugo that section 1170.95 

only requires appointment of counsel after the superior court 

determines as part of its first prima facie review the petitioner is 

eligible for relief. The Court of Appeal in Cooper instead held “a 

petitioner is entitled to counsel upon the filing of a facially 

sufficient petition for relief that requests counsel be appointed.” 

(Cooper, at p. 123; accord, Tarkington, at pp. 917, 927 (dis. opn. of 

Lavin, J.).) The Cooper court explained, “We decline to adopt the 

view that section 1170.95(c) requires two prima facie reviews—

much less two reviews that are substantively different—and 

entitles a petitioner to counsel during only the second one. 

Rather, we read subdivision (c)’s first sentence—‘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’—as a topic sentence summarizing the trial court’s 

task before issuing an order to show cause, and the following 

sentences to specify the procedure in undertaking that task. In 

our view, this conclusion is supported by both the statute's 

language and its legislative history.” (Cooper, at p. 118.)

We decline Carroll’s invitation to follow Cooper and the 

dissent in Tarkington.

7

 Rather, as we explained in Verdugo, to 

7 “[O]ur analysis of the trial court’s order focuses on the trial 

court’s interpretation of section 1170.95(c), and we therefore 

review its order de novo.” (People v. Drayton, supra,

47 Cal.App.5th at p. 981; accord, People v. Murillo (2020) 

54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978; 

see ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 188 

[questions of statutory interpretation are reviewed de novo].)
12

determine whether the petitioner is eligible for relief (the first 

prima facie review), “the court must at least examine 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.” (Verdugo, supra, 

44 Cal.App.5th at pp. 329-330.) We added, “The record of 

conviction might also include other information that establishes 

the petitioner is ineligible for relief as a matter of law because he 

or she was convicted on a ground that remains valid 

notwithstanding Senate Bill 1437’s amendments to sections 188 

and 189 (see § 1170.95, subd. (a)(3))—for example, a petitioner 

who admitted being the actual killer as part of a guilty plea or 

who was found to have personally and intentionally discharged a 

firearm causing great bodily injury or death in a single victim 

homicide within the meaning of section 12022.53, subdivision 

(d).” (Id. at p. 330.) Further, “[a] court of appeal opinion, 

whether or not published, is part of the appellant's record of 

conviction.” (Id. at p. 333.)

As discussed, we concluded in Carroll I that because the 

jury found Carroll, in committing the attempted willful, 

deliberate, and premeditated murder of Araujo, “‘harbored 

express malice aforethought, namely, a specific intent to kill 

unlawfully another human being,’” “any reasonable juror would 

have found Carroll harbored the identical intent to kill with 

regard to both of his victims.” (Carroll I, supra, B157628.) 

Moreover, Carroll either was the shooter or harbored an intent to 

kill in aiding and abetting Cunningham as the shooter, as shown 

by his statement to Cunningham just before the shooting, “‘Let 

me kill them both.’” (Ibid.)
13

Therefore, Carroll was not eligible for relief under Senate 

Bill 1437 because under new section 189, subdivision (e), he could 

still be convicted of murder based on his intent to kill. (Verdugo, 

supra, 44 Cal.App.5th at p. 335 [petitioner was not eligible for 

relief under § 1170.95 because he harbored the specific intent to 

kill the victim, as found in the earlier opinion affirming his 

conviction]; People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 

411, 414, 419 [petitioner not eligible for relief under Sen. Bill 

1437 because jury found true felony-murder special-circumstance 

instruction, which required jury to find aider and abettor 

intended to kill or was a major participant and acted with 

reckless indifference to human life].)

Because Carroll failed to make the initial prima facie 

showing for relief under section 1170.95, subdivision (c), he was 

not entitled to appointed counsel or a hearing. (Tarkington, 

supra, 49 Cal.App.5th at pp. 901-902 [because the court 

summarily denied the petition at the first prima facie review 

stage, “the appointment of counsel was not statutorily required 

by section 1170.95”]; Verdugo, supra, 44 Cal.App.5th at pp. 332-

333 [“If, as here, the court concludes the petitioner has failed to 

make the initial prima facie showing required by subdivision (c), 

counsel need not be appointed.”]; People v. Lewis, supra, 

43 Cal.App.5th at p. 1140 [“Given the overall structure of the 

statute, we construe the requirement to appoint counsel as 

arising in accordance with the sequence of actions described in 

section 1170.95 subdivision (c); that is, after the court determines 

that the petitioner has made a prima facie showing that 

petitioner ‘falls within the provisions’ of the statute, and before 

the submission of written briefs and the court’s determination 
14

whether petitioner has made ‘a prima facie showing that he or 

she is entitled to relief.’”].)

DISPOSITIION

The order denying Carroll’s petition for resentencing under 

section 1170.95 is affirmed.

FEUER, J.

We concur:

PERLUSS, P. J.

DILLON, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.