Filed 11/19/20 P. v. Welch 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.

ANTHONY LEVELL WELCH,

Defendant and Appellant.

 B300338

 (Los Angeles County

 Super. Ct. No. A799639-01)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Michael Garcia, Judge. Affirmed.

Jonathan E. Demson, 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, Supervising 

Deputy Attorney General, Charles S. Lee and Ryan M. Smith, 

Deputy Attorneys General, for Plaintiff and Respondent.

___________________________
2

Anthony Levell Welch, who pleaded no contest to 

second degree murder in 1988, appeals from a postjudgment 

order denying his petition for resentencing under Penal Code 

section 1170.95.1 Without appointing counsel or holding an 

evidentiary hearing, the superior court found Welch had failed to 

make a prima facie showing of eligibility for relief. On appeal 

Welch argues the court violated his statutory and constitutional 

rights by summarily denying his petition without appointing 

counsel and erred in finding he did not state a prima facie 

showing of eligibility for relief. In People v. Verdugo (2020) 

44 Cal.App.5th 320, review granted March 18, 2020, S260493 

(Verdugo), we rejected Welch’s argument regarding the 

procedures the superior court must follow once a section 1170.95 

petition has been filed.2 We likewise reject Welch’s argument his 

constitutional right to counsel was violated. As for the finding 

Welch did not state a prima facie case of eligibility for relief, we 

are troubled by the superior court’s failure to articulate the 

reasons for its ruling and the lack of a record; however, because 

any error is harmless in this case, we affirm.

1 Statutory references are to this code.

2

 The Supreme Court in Verdugo ordered briefing deferred 

pending its disposition of People v. Lewis (2020) 43 Cal.App.5th 

1128, review granted March 18, 2020, S260598, in which briefing

and argument are limited 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)?” 
3

PROCEDURAL BACKGROUND

In his petition for resentencing, filed March 7, 2019 on a 

downloadable form (see Verdugo, supra, 44 Cal.App.5th at p. 324 

& fn. 2), Welch declared by checking boxes that he had pleaded

guilty or no contest to first or second degree murder because he 

believed he could have been convicted of murder pursuant to the 

felony-murder rule or the natural and probable consequences 

doctrine and could not now be convicted of murder because of 

amendments to sections 188 and 189, effective January 1, 2019. 

In a section of the form petition applicable only to petitioners who 

had been convicted under the felony-murder rule, Welch checked 

boxes stating he was not the actual killer; he did not with the 

intent to kill aid or abet the actual killer; and he was not a major 

participant in the felony or did not act with reckless indifference 

to human life. Welch also checked the box stating he was 

convicted of second degree murder under the natural and 

probable consequences doctrine or under the second degree 

felony-murder rule and he could not now be convicted of murder 

because of changes to sections 188 and 189. Welch requested the 

court appoint him counsel during the resentencing process.

The superior court denied Welch’s petition for resentencing 

on July 5, 2019 outside the presence of Welch (for whom counsel 

had not been appointed), the prosecutor or a court reporter.3 The 

minute order for the court’s order states, “The court has read and 

3 Section 1170.95, subdivision (b)(1), specifies the petition is 

to be considered by the judge that originally sentenced the 

petitioner, but, if that judge is not available, “the presiding judge 

shall designate another judge to rule on the petition.” 

Judge Robert T. Altman, who sentenced Welch in 1988, retired 

from the superior court in 2000.
4

considered the petition for resentencing pursuant to Penal Code 

section 1170.95(A). [¶] Based on the evidence of the case, the 

court finds the petitioner was the shooter in the murder 

conviction; therefore, the petition is denied.” 

DISCUSSION

1. Senate Bill No. 1437 and the Right To Petition To Vacate 

Certain Prior Convictions for Murder

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, 

ch. 1015) (Senate Bill 1437), effective January 1, 2019, amended 

the felony-murder rule and eliminated the natural and probable 

consequences doctrine as it relates to murder through 

amendments to 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), in turn, provides 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, as to those crimes that provide the 

basis for the charge of first degree felony murder—that the 

individual 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 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 
5

indifference to human life, as described in subdivision (d) of 

Section 190.2.”

Senate Bill 1437 also permits, through new section 1170.95, 

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 because of Senate Bill 1437’s changes to the definition 

of the crime.4 After receiving a facially sufficient petition 

(see § 1170.95, subd. (b)), section 1170.95, subdivision (c), 

requires the sentencing court to review the petition; determine if 

it makes a prima facie showing the petitioner falls within the 

provisions of section 1170.95; and, if the petitioner has requested 

counsel, to appoint counsel to represent the petitioner. After 

counsel has been appointed, the prosecutor is to file and serve a 

4 Section 1170.95, subdivision (a), states: “A person 

convicted of felony murder or murder under a natural and 

probable consequences theory may file a petition with the court 

that sentenced the petitioner to have the petitioner’s murder 

conviction vacated and to be resentenced on any remaining 

counts when all of the following conditions apply: [¶] (1) A 

complaint, information, or indictment was filed against the 

petitioner that allowed the prosecution to proceed under a theory 

of felony murder or murder under the natural and probable 

consequences doctrine. [¶] (2) The petitioner was convicted of first 

degree or second degree murder following a trial or accepted a 

plea offer in lieu of a trial at which the petitioner could be 

convicted for first degree or second degree murder. [¶] (3) The 

petitioner could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made effective 

January 1, 2019.”
6

response to the petition; and the petitioner may file a reply. If at 

this point the court finds the petitioner has made a prima facie 

showing he or she is entitled to relief, the court must issue an 

order to show cause (§ 1170.95, subd. (c)) and conduct a hearing 

to determine whether to vacate the murder conviction and 

resentence the petitioner on any remaining counts (§ 1170.95, 

subd. (d)(1)).

5

2. Welch Was Not Entitled to Appointment of Counsel Prior 

to the Court’s Preliminary Determination Whether He

Had Made a Prima Facie Showing of Eligibility for 

Relief

a. Welch’s statutory argument lacks merit

In his opening brief, filed before our decision in Verdugo, 

Welch contends, because he checked boxes on a preprinted form 

declaring his conviction was based on a now improper theory, he 

was entitled to counsel and an evidentiary hearing before the 

court determined he did not fall within the provisions of 

section 1170.95. We rejected that argument in Verdugo, supra, 

44 Cal.App.5th 320.

Verdugo held, after determining the petition is facially 

sufficient, the superior court may examine the readily available 

portions of the record of conviction to determine whether the 

petitioner has made a prima facie showing that he or she could 

not be convicted of first or second degree murder following the 

5 Once an evidentiary hearing has been ordered, the People 

may present new and additional evidence to demonstrate the 

petitioner is not entitled to resentencing. The petitioner also may 

present new or additional evidence in support of the resentencing 

request. (§ 1170.95, subd. (d)(3).)
7

changes made to sections 188 and 189 and thus is eligible for 

relief under section 1170.95. (Verdugo, supra, 44 Cal.App.5th at 

pp. 329-330, 332.) If the petitioner’s ineligibility for resentencing 

can be established at this stage as a matter of law by the petition 

itself and the record of conviction, the petition may be summarily 

denied without the appointment of counsel. (Id. at pp. 330, 332-

333; see also People v. Perez (2020) 54 Cal.App.5th 896; People v. 

Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted 

Mar. 18, 2020, S260598; but see People v. Cooper (2020) 

54 Cal.App.5th 106, review granted Nov. 10, 2020, S264684.) 

Accordingly, Welch was not entitled to appointment of counsel 

prior to the court’s initial determination of his eligibility for 

relief.

b. Welch’s constitutional argument lacks merit

Asserting the determination whether a petitioner has made 

a prima facie showing he or she falls within the provisions of 

section 1170.95 is a “critical stage” of a criminal proceeding, 

Welch contends the superior court’s summary denial of his 

petition violated his constitutional right to the assistance of 

counsel. (See generally Marshall v. Rodgers (2013) 569 U.S. 58, 

62 [“[i]t is beyond dispute that ‘[t]he Sixth Amendment 

safeguards to an accused who faces incarceration the right to 

counsel at all critical stages of the criminal process’”]; People v. 

Doolin (2009) 45 Cal.4th 390, 453 [sentencing is a critical stage in 

the criminal process within the meaning of the Sixth

Amendment].)

However, as the Supreme Court explained in People v. 

Shipman (1965) 62 Cal.2d 226, 232, “Unless we make the filing of 

adequately detailed factual allegations stating a prima facie case 

a condition to appointing counsel, there would be no alternative 
8

but to require the state to appoint counsel for every prisoner who 

asserts that there may be some possible ground for challenging 

his conviction. Neither the United States Constitution nor the 

California Constitution compels that alternative.” Accordingly, 

generally in postconviction proceedings, “in the absence of 

adequate factual allegations stating a prima facie case, counsel 

need not be appointed” to represent a petitioner in the trial court. 

(Ibid.; accord, In re Clark (1993) 5 Cal.4th 750, 780 [“the 

appointment of counsel is demanded by due process concerns” if a 

postconviction “petition attacking the validity of a judgment 

states a prima facie case leading to issuance of an order to show 

cause”]; see People v. Rouse (2016) 245 Cal.App.4th 292, 298 

(Rouse) [“The United States Supreme Court has declined to 

extend the Sixth Amendment right to counsel to postconviction 

proceedings. [Citation.] Federal courts have consistently ruled 

that an incarcerated defendant has no constitutional right to 

counsel with respect to statutory postconviction motions seeking 

a reduction in sentence”]; see also Cal. Rules of Court, 

rule 4.551(c)(1), (2) [following the filing of a petition for writ of 

habeas corpus, the superior court must issue an order to show 

cause if the petitioner has made a prima facie showing that he or 

she is entitled to relief; “[o]n issuing an order to show cause, the 

court must appoint counsel for any unrepresented petitioner who 

desires but cannot afford counsel”].)

Welch’s reliance on Rouse, supra, 245 Cal.App.4th 292, a 

case involving a petition for resentencing under section 1170.18, 

subdivision (a) (Proposition 47), is misplaced. In Rouse our 

colleagues in Division Eight of this court distinguished published 

decisions that had concluded there was no right to counsel at the 

initial eligibility stage of a petition under section 1170.18 (Rouse, 
9

at p. 299) and held, once the superior court had determined the 

Proposition 47 petition was meritorious and the petitioner was

entitled to be resentenced, the resentencing hearing “is akin to a 

plenary sentencing hearing” and properly characterized as a 

“critical stage” in the criminal process to which the right to 

counsel attaches. (Rouse, at pp. 299-300.)

People v. Fryhaat (2019) 35 Cal.App.5th 969, also relied 

upon by Welch, is similar to Rouse and likewise provides no 

support for his argument he had a constitutional right to 

appointment of counsel simply upon the filing of a 

section 1170.95 petition with the proper boxes checked. Fryhaat 

involved section 1473.7, subdivision (a)(1), which permits an 

individual no longer in custody to move to vacate his or her 

conviction or sentence based on a lack of understanding of the 

immigration consequences of a guilty plea. After construing the 

statutory language to require a hearing and, arguably, 

appointment of counsel for an indigent moving party, in order to 

avoid a constitutional question the court of appeal held, “In light 

of the fact writs of habeas corpus and writs of coram nobis, and 

likely section 1016.5 motions to vacate, require court-appointed 

counsel for an indigent petitioner or moving party who has 

established a prima facie case for entitlement to relief, and given 

a section 1473.7 motion was intended to fill the gap left by the 

foregoing procedural avenues for relief, interpreting 

section 1473.7 to also provide for court-appointed counsel where 

an indigent moving party has adequately set forth factual 

allegations stating a prima facie case for entitlement to relief 

would best effectuate the legislative intent in enacting 

section 1473.7.” (Fryhaat, at p. 983, fn. omitted.)
10

The scheme embraced as a matter of due process in Rouse 

and adopted to avoid a constitutional issue in Fryhaat is precisely 

the model created by section 1170.95. At the initial eligibility 

stage, there is no right to appointed counsel. However, once the 

court concludes it cannot determine the petitioner’s ineligibility 

for relief as a matter of law, counsel must be appointed for those 

petitioners who have requested it. (§ 1170.95, subd. (c).) Thus, 

Welch was not entitled to appointment of counsel as a matter of 

constitutional right prior to a finding whether he was ineligible 

for relief.

3. The Superior Court Correctly Concluded Welch Is 

Ineligible as a Matter of Law for Any Relief Under 

Section 1170.95

As we explained in Verdugo, the superior court’s role in 

conducting the first prima facie review of the petition “is simply 

to decide whether the petitioner is ineligible for relief as a matter 

of law, making all factual inferences in favor of the petitioner.” 

(Verdugo, supra, 44 Cal.App.5th at p. 329.) In undertaking this 

review, the court should examine documents in the court file or 

that are otherwise part of the record of conviction that are readily 

ascertainable, which may include the complaint, information or 

indictment, verdict form or factual basis documentation for a 

negotiated plea, admissions as part of a guilty plea, jury 

instructions, the abstract of judgment and the court of appeal 

opinion, whether or not published. (Id. at pp. 329-330 & fn. 9, 

333.)

Because the superior court is not authorized to make 

factual findings during the first prima facie review, its decision is 

a purely legal conclusion that we review de novo. (See People v. 

Murillo (2020) 54 Cal.App.5th 160, 167.) 
11

As discussed, the superior court recited it had reviewed 

“the evidence of the case” in concluding Welch was the actual 

shooter; however, the court gives no indication what documents it

had reviewed or what information those documents contained. 

Neither party has requested the record be supplemented or 

augmented to include any documents from the court file or the 

record of conviction.6 In the absence of anything in the record to 

establish his ineligibility for relief as a matter of law, Welch 

argues the declaration in the petition that he was not the actual 

killer constitutes prima facie evidence of his eligibility for relief. 

Generally, we would agree. Because we conduct a de novo review 

of eligibility, the superior court’s conclusion alone does not 

support a finding Welch is ineligible for relief. Without more, we 

would reverse and direct the court to proceed with the next step 

(appointment of counsel and request for briefing from the People 

and Welch’s counsel) in determining whether Welch is entitled to 

relief pursuant to section 1170.95, subdivision (c).

However, in this case the lack of a record supplied by the 

parties has not prejudiced Welch because evidence he submitted 

to this court in a prior proceeding establishes that Welch was 

convicted pursuant to a negotiated plea agreement of committing 

second degree murder with malice aforethought, not felony 

6 In the respondent’s brief the Attorney General states it was 

able to obtain several documents from the trial court file, 

including the complaint, information, amended information, 

abstract of judgment and numerous minute orders. However, the 

Attorney General “is not asking this Court to take judicial notice 

of these documents because they shed no light on the disputed 

issue of whether appellant pleaded no contest to murder as the 

shooter.” 
12

murder or murder under a natural and probable consequences 

theory as required to be eligible for relief under section 1170.95, 

subdivision (a). 

On July 13, 2016 Welch filed a petition for writ of habeas 

corpus in this court and attached the reporter’s transcript of the 

April 12, 1988 hearing at which he had pleaded no contest to 

second degree murder.7 During that hearing the superior court 

explained to Welch that the People’s theory of the case was that 

Welch shot the victim during the course of an attempted robbery, 

which would be first degree felony murder. The court continued, 

“Ordinarily second degree murder is not applicable to a felony 

murder-type situation. But second degree murder is simply an 

unlawful killing with what’s called malice aforethought in this 

case, which is an intentional killing. Do you understand?” Welch 

responded, “Yes, sir.” 

Later during the hearing the court addressed defense 

counsel and the prosecutor and noted that, although felony

murder did not require proof of malice, the information against 

Welch included an allegation of malice. The court then stated, 

“In this case the plea is to murder in the second degree which 

does involve malice aforethought. So I don’t see any need to 

amend the information. Is the information acceptable to both 

7 We denied Welch’s petition on July 14, 2016. (In re Welch, 

B276104.) 

We augment the record on our own motion with the 

April 12, 1988 transcript. (Cal. Rules of Court, 

rule 8.155(a)(1)(B).) We provided the parties with copies of the 

petition and exhibits and invited supplemental briefing to 

address the significance of the plea hearing transcript. 
13

counsel as it now reads?” Both Welch’s counsel and the 

prosecutor answered, “Yes, your honor.” 

The prosecutor then took Welch’s plea of no contest to 

second degree murder,8 entered pursuant to People v. West (1970) 

3 Cal.3d 595 (West).

9 The court asked counsel, “Join in the plea 

and waivers and stipulate to a factual basis?” Both Welch’s 

counsel and the prosecutor answered, “Yes, your honor.” The 

trial court then found, “Defendant’s aware of the charge, the 

elements, the allegations, the consequences of his plea, that he’s 

knowingly and intelligently waived his constitutional rights, 

freely and voluntarily entered into the plea and there is a factual 

basis. Court finds a factual basis based on the stipulation of 

counsel. Court is satisfied there is a factual basis based on the 

8 A plea of no contest admits the elements of the crime, but 

does not constitute an admission of any aggravating 

circumstances. (People v. French (2008) 43 Cal.4th 36, 49; People 

v. Learnard (2016) 4 Cal.App.5th 1117, 1122; see People v. West

(1970) 3 Cal.3d 595, 612 [“[a] defendant who knowingly and 

voluntarily pleads guilty or nolo contendere can hardly claim that 

he is unaware that he might be convicted of the offense to which 

he pleads; his plea demonstrates that he not only knows of the 

violation but is also prepared to admit each of the elements”].)

9 West allows a court to accept a plea of guilty or no contest 

to an uncharged offense or an offense that is not necessarily 

included in a charged offense notwithstanding the general rule 

that, when a defendant pleads not guilty, the court lacks 

jurisdiction to convict him or her of an offense that is neither 

charged nor necessarily included in the alleged crime. (West, 

supra, 3 Cal.3d at pp. 612-613.) In addition, a West plea “allows a 

defendant to plead guilty in order to take advantage of a plea 

bargain while still asserting his or innocence.” (People v. Rauen

(2011) 201 Cal.App.4th 421, 424.) 
14

stipulation, which in turn is based on the facts set out on the 

record by the court.”10 

Although the transcript from Welch’s habeas proceeding in 

this court establishes as a matter of law that he is ineligible for 

relief under section 1170.95, we caution that neither the superior 

court nor the parties should assume this court will, as a matter of 

course, seek out or consider documents from the underlying case 

that were not reviewed by the superior court. The issue on 

appeal is whether the superior court, on the record before it, 

correctly ruled the petitioner was ineligible for resentencing as a 

matter of law. Nonetheless, because the plea hearing transcript 

is dispositive, reversal would be futile in this case and a waste of 

judicial resources. (See People v. Lewis, supra, 43 Cal.App.5th at 

p. 1138 [“‘[i]t would be a gross misuse of judicial resources to 

require the issuance of an order to show cause or even 

10 At oral argument Welch’s counsel asserted Welch was 

eligible for relief, regardless of the crime to which he had actually 

pleaded no contest, because the information allowed the 

prosecutor to proceed under a theory of felony murder. That 

argument ignores the plain language of the statute. That the 

charging document encompassed a theory of felony murder or 

murder under the natural and probable consequences doctrine is 

a necessary condition to resentencing under section 1170.95 

(§ 1170.95, subd. (a)(1)), but it is not sufficient. Section 1170.95, 

subdivision (a), provides as the threshold requirement that only 

individuals who were “convicted of felony murder or murder 

under a natural and probable consequences theory may file a 

petition” for relief under the statute. Because the record here 

establishes Welch was convicted of second degree murder with 

malice aforethought, he is ineligible for resentencing as a matter 

of law even though a felony murder theory could have been 

advanced at trial.
15

appointment of counsel based solely on the allegations of the 

petition, which frequently are erroneous, when even a cursory 

review of the court file would show as a matter of law that the 

petitioner is not eligible for relief’”]; see generally People v. 

Alvarez (1996) 14 Cal.4th 155, 216, fn. 21 [the general rule is that 

reversal requires prejudice].)

DISPOSITION

The postjudgment order is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.