1

Filed 9/1/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD COOPER,

Defendant and Appellant.

 A156880

 (Alameda County

 Super. Ct. No. 122225)

Defendant Richard Cooper was charged with two counts of murder for 

participating with another man in the horrific killing of a pregnant woman, 

Trenda Whitten, in 1994. Cooper ultimately pleaded no contest to one count 

of second degree murder, and in 1999 he was sentenced to 15 years to life in 

prison. 

Nearly two decades after Cooper’s plea, the Legislature enacted Senate 

Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437), which altered 

liability for murder under the theories of felony murder and natural and 

probable consequences. The bill also established a procedure, under newly 

enacted Penal Code1 section 1170.95, for eligible defendants to petition for 

resentencing. Cooper filed a petition for relief under that statute alleging he 

pleaded no contest to murder “in lieu of going to trial because [he] believed 

[he] could have been convicted of 1st or 2nd degree murder at trial pursuant 

1 All further statutory references are to the Penal Code.
2

to the felony murder rule or the natural and probable consequences doctrine.” 

He also asked that counsel be appointed for him. 

The trial court denied the petition without appointing counsel, 

concluding that Cooper was “ineligible for resentencing as a matter of law.” 

Relying on the transcript of the preliminary hearing—which Cooper did not

stipulate to as the factual basis of his plea—the court concluded that 

regardless of whether Cooper or the other man was “more culpable” for 

Whitten’s death, Cooper’s “murder conviction rests on a valid theory of 

murder.”

On appeal, Cooper claims the trial court erred by summarily denying 

the petition without appointing counsel. We agree. Earlier this year, the 

Supreme Court granted review to decide when the right to counsel arises 

under section 1170.95, subdivision (c) (section 1170.95(c)). (People v. Lewis

(2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260598 (Lewis).) 

Pending the Court’s decision, we conclude that the right to counsel attaches 

upon the filing of a facially sufficient petition that alleges entitlement to 

relief. In so doing, we disagree with decisions of the Courts of Appeal that 

have held otherwise, including Lewis and People v. Verdugo (2020) 

44 Cal.App.5th 320, review granted Mar. 18, 2020, S260493 (Verdugo). Even 

if an error in not appointing counsel may be harmless in some situations, 

such as when the petitioner is not entitled to relief as a matter of law, the 

error was prejudicial here. Accordingly, we reverse.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

Whitten and her fetus were murdered in Oakland on the night of 

May 19, 1994. As discussed in more detail below, evidence was presented at 

the preliminary hearing that Cooper, who was then 18 years old, raped 
3

Whitten while another man, Emilio Mitchell, Jr., kicked her in the face.2

Mitchell repeatedly jumped onto Whitten’s head, a cinder block was thrown 

on her head by both men, and Cooper cut Whitten’s throat, possibly after she 

was already dead. Based on this evidence, Cooper was charged with two 

counts of murder, with the accompanying allegation as to both crimes that he 

personally used a deadly and dangerous weapon, a cinder block.3 It was also 

alleged that he inflicted great bodily injury on Whitten during the crime.

4 

In April 1998, Cooper pleaded no contest to one count of second degree 

murder, and the remaining count and all enhancements were dismissed. At 

the plea hearing, during the discussion of promises made to Cooper in 

exchange for his plea, his trial counsel stated, “The district attorney indicated 

that he would write in his letter to the Board of Prison Terms that the 

evidence supports the theory that the defendant is not a direct actor here but 

an aider and abettor.” The prosecutor confirmed this was the case. Before 

taking the plea, the trial court asked whether there was “a stipulated factual 

basis for the plea,” and Cooper’s trial counsel stated, “So stipulated.” The 

record does not reveal, however, what that basis was. Cooper was sentenced 

to 15 years to life in prison in November 1999. 

On February 10, 2019, shortly after Senate Bill No. 1437 took effect, 

Cooper filed a petition for relief under section 1170.95. Using a form 

prepared by Re:Store Justice, a cosponsor of the legislation (see Verdugo, 

supra, 44 Cal.App.5th at p. 324 & fn. 2), he checked boxes stating that a 

charging document had been filed against him allowing the prosecution to 

2 Mitchell was charged in a separate case, and the record is silent about 

its disposition. 

3 The murder charges were brought under section 187, and the weapon 

enhancements were alleged under section 12022, subdivision (b). 

4 The great-bodily-injury allegation was made under section 1203.075. 
4

proceed under a felony murder theory or the natural and probable 

consequences doctrine; he entered a plea to first or second degree murder in 

lieu of going to trial because he believed he could have been convicted of 

murder under a felony murder theory or the natural and probable 

consequences doctrine; and he could not now be convicted of murder in light 

of Senate Bill No. 1437’s changes to the law. In addition, he checked a box

indicating that he was convicted of second degree murder under the natural 

and probable consequences doctrine or under the second degree felony 

murder doctrine and a box stating, “I request that this court appoint counsel 

for me during this re-sentencing process.”5 Cooper included with the petition 

the transcript of his plea hearing and his abstract of judgment. 

A different judge than the judge who sentenced Cooper summarily 

denied the petition on February 21, 2019. Cooper did not appear, and the 

trial court did not appoint counsel to represent him. In its written order, the 

court stated that the order’s “procedural and factual history [was] based on 

the Court’s records in this matter[,] including the preliminary hearing 

transcript (dated 1 November 1994) and the change of plea transcript (8 April 

1998).” The record before us includes both of these transcripts, as well as the 

abstract of judgment, but it does not include other court documents from the 

5 Cooper did not check the box indicating that he was convicted of first 

degree felony murder. He did check three of the requirements for that 

option—that he was not the actual killer, that he was not a major participant 

in the underlying felony or did not act with reckless disregard for human life, 

and that the victim was not a peace officer—but he left blank the box next to 

the fourth requirement, that he did not aid and abet the actual killer with an 

intent to kill. 
5

1990’s except for the November 14, 1994 information.

6 Thus, it is unclear 

what other documents the court may have considered.

While recognizing that Cooper “did not specify what [the factual] basis

[of his plea] was,” the trial court recited the underlying facts based 

exclusively on the evidence presented at the preliminary hearing. This

evidence primarily consisted of the testimony of two minor brothers, L.M. and 

D.B., who were partying at their mother’s apartment with Cooper, Mitchell, 

and others on the night in question. The young men spotted Whitten walking 

down the street, and L.M. called her over at Cooper’s request. After going 

outside to talk to Whitten, Cooper returned to the apartment and obtained 

crack cocaine from Mitchell, indicating that he was going to show the drugs 

to Whitten so she would have sex with him but did not intend to give them to 

her. Cooper and Whitten then went into the backyard of the apartment 

building next door. 

About five minutes later, L.M. heard Whitten say she was pregnant. 

Mitchell then went into the neighboring backyard. A few minutes later, L.M. 

followed to see what was going on and saw Cooper having sex with Whitten, 

who was on the ground, and Mitchell kicking her in the face. Whitten was 

trying to get away, and L.M. pulled Mitchell aside and told him to “let it go.” 

Mitchell said he was going to kill Whitten so that she did not snitch on him. 

L.M. testified that Mitchell also tried to have sex with Whitten, but was 

unable to do so because she was moving too much. 

At some point, Whitten grabbed L.M. and asked him to get her 

boyfriend, but instead, he went back inside to get help from his brother and 

6 The information is included in the record only because it was an 

exhibit to the People’s informal response to an unrelated habeas petition 

Cooper filed a few months before his section 1170.95 petition. 
6

another friend. Once inside, L.M. looked out a window and saw that Mitchell 

was still kicking Whitten in the head and Cooper was still raping her. 

Apparently, while L.M. and the other friend went back outside, D.B. watched 

the attack from the apartment. D.B. testified that he saw Mitchell 

repeatedly jump from some nearby stairs onto Whitten’s head, and he also 

saw Mitchell and Cooper take turns dropping a cinder block on her head. 

Meanwhile, after L.M. went back outside, he saw Mitchell hit Whitten 

on the head with a cinder block “one last time.” Mitchell and Cooper 

apparently left the backyard, but Cooper returned shortly afterward, saying 

he was going to “slit [Whitten’s] throat” so that she did not snitch on him. 

D.B. testified that he saw Cooper grab Whitten’s hair and slit her throat 

while Mitchell stood next to him. After the murder, Cooper and Mitchell 

burned their clothes in the parking lot of the brothers’ apartment building. 

The parties stipulated that if called to the stand, the pathologist who 

performed the autopsies would testify that Whitten’s cause of death was 

“blunt trauma to the head associated with asphyxia due to compression of the 

neck,” and the fetus’s cause of death was “maternal death.” The parties also

stipulated that the pathologist would testify to finding, among other injuries, 

“extensive lacerations, contusions[,] and abrasions on [Whitten’s] face and 

scalp[,] . . . extensive skull fractures, . . . brain contusions, . . . [and] incised 

wounds of the neck.” 

After describing this evidence presented at the preliminary hearing—to 

which, again, Cooper never stipulated—the trial court turned to its legal 

analysis. It characterized a court’s task under the first sentence of 

section 1170.95(c) as “screen[ing] incoming resentencing petitions to 

determine if the petitioner is ineligible for resentencing as a matter of law.” 

The court denied the petition on this basis, stating:
7

“[Cooper] lured [Whitten] into a dark driveway with the 

false promise of drugs. Whether the sexual encounter began as a 

consensual one or not does not matter because it did not end as 

one. Cooper continued to rape [Whitten] even after she said she 

was pregnant. He continued to rape her even as Mitchell kicked 

her in the head. He continued to rape her even after she asked 

[L.M.] for help. Cooper and Mitchell then said they would kill 

[Whitten] to keep her from ‘snitching’ and they did just that in a 

particularly brutal manner. Although [Whitten] would have been 

dead or dying by that point, Cooper inexplicably tried to cut her 

throat. Both men burned and threw away their clothes before 

literally washing their hands of her.

“The Court need not split hairs over who is more culpable 

on these facts. (§ 189, subds. (a) & (e).) [Cooper’s] murder 

conviction rests on a valid theory of murder; the conviction 

survives changes made by [Senate Bill No.] 1437 to . . .

sections 188 and 189. (§ 1170.95, subd. (a)(3).) The petition is 

denied because [Cooper] is ineligible for resentencing under 

section 1170.95 as a matter of law. (§ 1170.95[(c)].)”

II.

DISCUSSION

For reasons we shall explain, we hold that when a petitioner files a 

facially sufficient petition requesting counsel, as Cooper did, the trial court 

must appoint counsel and give the parties an opportunity to submit briefing

before denying the petition. While the denial of counsel may be harmless in 

some situations, such as when the petitioner is not entitled to relief as a 

matter of law, it was not harmless here. Cooper’s conviction was based on a 

plea whose particular factual basis was never established. The trial court’s 

ruling that Cooper was ineligible for relief as a matter of law was therefore

mistaken, because it was based on impermissible factfinding that accepted 
8

the truth of the preliminary-hearing testimony without giving Cooper the 

opportunity to challenge that testimony. Accordingly, we must reverse.

On remand, Cooper must be appointed counsel and be allowed to 

submit briefing, even though his petition’s likelihood of success may be 

remote. The two witnesses who testified at the preliminary hearing 

described appalling acts of violence by Cooper against Whitten. If the facts 

those witnesses described are accepted, Cooper will not be entitled to relief

under section 1170.95 because this evidence shows he intended to kill 

Whitten, even if he was not the “actual killer.” (§ 189, subd. (e)(2); see § 188, 

subd. (a)(3).) Nonetheless, given both section 1170.95’s statutory language 

and its legislative intent, Cooper is entitled to the assistance of appointed 

counsel to make his case to the extent he can.

A. The Right to Counsel Under Section 1170.95 Attaches Upon the 

Filing of a Facially Sufficient Petition.

Cooper claims that he was entitled to counsel under section 1170.95(c)

when he filed a facially sufficient petition. We agree. 

1. General legal standards

Senate Bill No. 1437, which took effect on January 1, 2019, was passed 

“ ‘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.’ ” (People v. Lamoureux (2019) 

42 Cal.App.5th 241, 247, quoting Stats. 2018, ch. 1015, § 1, subd. (e).) “Under 

the felony-murder rule as it existed prior to Senate Bill [No.] 1437, a 

defendant who intended to commit a specified felony could be convicted of 

murder for a killing during the felony, or attempted felony, without further 

examination of his or her mental state.” (Lamoureux, at pp. 247–248.) In 
9

addition, “[i]ndependent of the felony-murder rule, the natural and probable

consequences doctrine rendered a defendant liable for murder if he or she 

aided and abetted the commission of a criminal act (a target offense), and a 

principal in the target offense committed murder (a nontarget offense) that, 

even if unintended, was a natural and probable consequence of the target 

offense.” (Id. at p. 248.)

Senate Bill No. 1437 changed murder liability under these theories 

through two statutory amendments. First, “[t]he bill redefined malice under 

section 188 to require that the principal acted with malice aforethought. 

Now, ‘[m]alice shall not be imputed to a person based solely on his or her 

participation in a crime.’ (§ 188, subd. (a)(3).)” (People v. Turner (2020) 

45 Cal.App.5th 428, 433.) Second, the bill amended section 189 to provide 

that a defendant who was not the actual killer and did not have an intent to 

kill is not liable for felony murder unless he or she “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.” (§ 189, subd. (e)(3).)

Senate Bill No. 1437 also enacted section 1170.95, which establishes 

the procedure by which a defendant “convicted of felony murder or murder 

under a natural and probable consequences theory” may petition to have the 

“murder conviction vacated and to be resentenced on any remaining counts.” 

(§ 1170.95, subd. (a).) Briefly, there are four main steps in the process. First, 

the defendant files a petition, which the trial court may deny without 

prejudice if it does not contain certain required information. (§ 1170.95, 

subd. (b).) Second, the court determines whether the defendant has made a

prima facie showing of entitlement to relief. If so, it issues an order to show 

cause. (§ 1170.95(c).) Third, the court holds an evidentiary hearing to 

determine whether the murder conviction should be vacated. (§ 1170.95, 
10

subd. (d)(1), (3).) And finally, if the defendant is entitled to relief, the court 

recalls the sentence, vacates the murder conviction and any accompanying 

enhancements, and resentences the defendant. (§ 1170.95, subd. (d).) This 

case involves only the first two steps.

The defendant initiates the process by filing a petition in the 

sentencing court that must include three pieces of information. (§ 1170.95, 

subd. (b).) First, the petition must include “[a] declaration by the petitioner 

that he or she is eligible for relief under this section, based on all the 

requirements of subdivision (a).” (§ 1170.95, subd. (b)(1)(A).) Those 

requirements are (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) “[t]he 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”; and 

(3) “[t]he petitioner could not be convicted of first or second degree murder 

because of changes to Section 188 or 189 made effective January 1, 2019.” 

(§ 1170.95, subd. (a).) Second, the petition must include “[t]he superior court 

case number and year of the petitioner’s conviction.” (§ 1170.95, 

subd. (b)(1)(B).) And finally, the petition must state “[w]hether the petitioner 

requests the appointment of counsel.” (§ 1170.95, subd. (b)(1)(C).) 

If a petition is missing any of these three pieces of information and the 

missing information “cannot be readily ascertained by the [trial] court, the 

court may deny the petition without prejudice” to filing another petition that 

includes the required information. (§ 1170.95, subd. (b)(2).) We will refer to 

a petition that includes all the information required under section 1170.95, 
11

subdivision (b), as a facially sufficient petition. (See Verdugo, supra, 

44 Cal.App.5th at p. 323.)

 Section 1170.95(c) addresses the procedure by which a trial court 

determines whether the petitioner is entitled to an evidentiary hearing. The 

subdivision provides in full: “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 within 60 days of service of the 

petition and the petitioner may file and serve a reply within 30 days after the 

prosecutor[’s] response is served. These deadlines shall be extended for good 

cause. 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.”

The primary issue in this case is when the right to counsel arises under 

section 1170.95(c). We review such issues of statutory interpretation de novo. 

(People v. Prunty (2015) 62 Cal.4th 59, 71.) “ ‘ “As in any case involving 

statutory interpretation, our fundamental task here is to determine the 

Legislature’s intent so as to effectuate the law’s purpose.” ’ ” (People v. Scott

(2014) 58 Cal.4th 1415, 1421.) We begin by considering the statutory 

language, “ ‘ “giving [it] a plain and commonsense meaning.” ’ ” (Ibid.) 

“ ‘ “ ‘When [that] language . . . is clear, we need go no further.’ [Citation.] 

But where a statute’s terms are unclear or ambiguous, we may ‘look to a 

variety of extrinsic aids, including the ostensible objects to be achieved, the 

evils to be remedied, the legislative history, public policy, contemporaneous 

administrative construction, and the statutory scheme of which the statute is 

a part.’ ” ’ ” (Ibid.) Because “ ‘ “[a] statute is passed as a whole and not in 

parts or sections[,] . . . each part or section should be construed in connection 
12

with every other part or section so as to produce a harmonious whole,” ’ ” and 

we therefore interpret subdivision (c) in light of section 1170.95’s other 

subdivisions. (People v. Rajanayagam (2012) 211 Cal.App.4th 42, 52.)

2. Other decisions interpreting section 1170.95(c)

“At first blush, [section 1170.95(c)] seems clear. The first sentence 

states the rule: ‘The court shall review the petition and determine if the 

petitioner has made a prima facie showing that [he or she] falls within the 

provisions of this section.’ [§ 1170.95(c).] The rest of the subdivision 

establishes the process for complying with that rule: Appoint counsel, if 

requested. Wait for the prosecutor’s required response and the petitioner’s 

optional reply. If the petitioner makes a prima facie showing, issue an order 

to show cause.” (People v. Tarkington (2020) 49 Cal.App.5th 892, 917, review 

granted Aug. 12, 2020, S263219 (Tarkington) [dis. opn. of Lavin, J.].) But 

other Courts of Appeal have not read the first sentence of subdivision (c) to

state the rule and the rest of the sentences to explain the process. Instead, 

they have read the two references to a prima facie showing in the first and 

fifth sentences as requiring two different prima facie reviews, with each to 

occur at a different chronological point in time. Based on this reading, they 

have further concluded that a petitioner is entitled to counsel during only the 

second of those reviews.

Lewis, a decision by Division One of the Second District Court of 

Appeal, was the first published decision to address when the right to counsel 

arises under section 1170.95(c). Based on the sequencing of the subdivisions 

of section 1170.95, moving from filing a petition under subdivision (a) to 

resentencing under subdivision (g), Lewis determined that “the statutory 

framework is, overall, chronological.” (Lewis, supra, 43 Cal.App.5th at 

pp. 1139–1140.) Lewis concluded that it was therefore appropriate to 
13

“construe the timing of particular acts in relation to other acts according to 

their location within the statute; that is, actions described in the statute 

occur in the order they appear in the text.” (Ibid.) 

Applying this logic to the sentences comprising section 1170.95(c) itself, 

Lewis “construe[d] the requirement to appoint counsel as arising in 

accordance with the sequence of actions described in [that subdivision]; that 

is, after the [trial] court determines that the petitioner has made a prima 

facie showing that [the] petitioner ‘falls within the provisions’ of the statute, 

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

whether [the] petitioner has made ‘a prima facie showing that he or she is 

entitled to relief.’ ” (Lewis, supra, 43 Cal.App.5th at p. 1140.) Although 

Lewis noted that it was “not clear from the text of subdivision (c) what, if any, 

substantive differences exist between the ‘prima facie showing that the 

petitioner falls within the provisions of [section 1170.95],’ which is referred to 

in the first sentence of subdivision (c), and the ‘prima facie showing that [the 

petitioner] is entitled to relief,’ referred to in the last sentence of the 

subdivision,” it found it unnecessary to resolve the issue because the 

defendant “was neither within the provisions of the statute, nor entitled to 

relief, as a matter of law based on the record of conviction.” (Id. at p. 1140, 

fn. 10.)

In Verdugo, Division Seven of the Second District Court of Appeal

attempted a more thorough explanation of the procedure section 1170.95(c) 

requires after a trial court has received a facially sufficient petition but 

before it issues an order to show cause. As did Lewis, Verdugo interpreted 

the provision to “prescribe[] 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 
14

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, supra, 

44 Cal.App.5th at p. 328.) In other words, Verdugo interpreted

section 1170.95(c) to require “two prima facie showings”: first, under the first 

sentence of the provision, “that the petitioner falls within the provisions of 

this section,” and second, under the last sentence of the provision, that the 

petitioner “is entitled to relief.” (Verdugo, at p. 329.) Subsequent decisions 

have generally adopted Verdugo’s description of the process. (E.g.,

Tarkington, supra, 49 Cal.App.5th at p. 897; People v. Edwards (2020) 

48 Cal.App.5th 666, 673–674, review granted July 8, 2020, S262481

(Edwards); People v. Drayton (2020) 47 Cal.App.5th 965, 975–976 (Drayton); 

People v. Torres (2020) 46 Cal.App.5th 1168, 1177–1178, review granted 

Jun. 24, 2020, S262011.)

Verdugo explained its view that the “second prima facie review, made 

following a round of briefing by the prosecutor and counsel for petitioner, is 

equivalent to the familiar decisionmaking process before issuance of an order 

to show cause in habeas corpus proceedings, which typically follows an 

informal response to the habeas corpus petition by the Attorney General and 

a reply to the informal response by the petitioner.” (Verdugo, supra, 

44 Cal.App.5th at p. 328.) Reasoning that the “first prima facie review” must 

lie at “the midpoint” between the review for facial sufficiency under 

section 1170.95, subdivision (b), and the habeas corpus-like “second prima 

facie review,” Verdugo determined that the first review under 

section 1170.95(c) consisted of “a preliminary review of statutory eligibility 

for resentencing, a concept that is a well-established part of the resentencing 

process under Propositions 36 and 47. [Citations.] The court’s role at this 
15

stage 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, at p. 329.) 

Verdugo ultimately concluded, as did Lewis and the other appellate 

courts to decide the issue, that the right to counsel under section 1170.95(c) 

does not arise until and unless the trial court is unable to determine at this 

first stage of review that the petitioner is ineligible for relief as a matter of 

law. (Verdugo, supra, 44 Cal.App.5th at p. 332; Lewis, supra, 43 Cal.App.5th 

at p. 1140; e.g., Tarkington, supra, 49 Cal.App.5th at pp. 901–902; People v. 

Smith (2020) 49 Cal.App.5th 85, 92, review granted July 22, 2020, S262835; 

People v. Torres, supra, 46 Cal.App.5th at p. 1178; People v. Cornelius (2020) 

44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410.)

7 Verdugo

explained its view that “[t]he structure and grammar of [section 1170.95(c)] 

indicate the Legislature intended to create a chronological sequence: first, a 

prima facie showing; thereafter, appointment of counsel for petitioner; then, 

briefing by the parties,” after which the second prima facie review occurs. 

(Verdugo, at p. 332.) Verdugo concluded that it would not “make sense as a 

practical matter to appoint counsel earlier in the process since counsel’s first 

task is to reply to the prosecutor’s response to the petition. If . . . the [trial] 

court concludes the petitioner has failed to make the initial prima facie 

showing required by subdivision (c), counsel need not be appointed,” and 

“appointed counsel on appeal can argue the court erred in concluding his or 

her client was ineligible for relief as a matter of law.” (Id. at pp. 332–333.)

7 Other decisions in which the right-to-counsel issue is presented have 

found it unnecessary to decide it. (E.g., Edwards, supra, 48 Cal.App.5th at 

p. 675 [any error harmless because petitioner statutorily ineligible for relief].)
16

3. Analysis

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. 

Our analysis begins with accepting that the subdivisions of 

section 1170.95 generally proceed chronologically vis-à-vis each other (Lewis, 

supra, 43 Cal.App.5th at pp. 1139–1140), and that subdivision (c) itself also 

generally proceeds chronologically. But this hardly requires the conclusion 

that every single sentence of subdivision (c) does so and that the provision’s 

references to a “prima facie showing” in two different places mean there must 

be two reviews to occur at different times. 

To the contrary, neither other subdivisions of section 1170.95 nor 

subdivision (c) can bear the weight of such an interpretation. The three 

sentences of subdivision (b)(1), for example, respectively describe, in a clearly 

non-chronological order, (1) which court the petition must be filed in and 

whom it must be served on; (2) which judge will rule on the petition; and 

(3) what information the petition must contain. (Tarkington, supra, 

49 Cal.App.5th at p. 918, fn. 6 [dis. opn. of Lavin, J.].) Needless to say, the 

petition’s contents come before the petition’s filing and service. And even the 

other sentences in subdivision (c) itself are clearly not chronological: The 
17

third sentence establishes the deadlines for the parties to “file and serve” 

their briefs, and the fourth sentence provides that “[t]hese deadlines shall be 

extended for good cause”—an extension that would be given before the briefs 

were filed and served. 

Interpreting section 1170.95(c)’s references to a “prima facie showing”

as referring to separate steps results in an anomalous procedure that 

requires a trial court to perform two different reviews of a facially sufficient 

petition before issuing an order to show cause: one to determine whether the 

petitioner has made a showing that he or she “falls within the provisions of 

this section,” and one to determine whether the petitioner has made a 

showing that he or she “is entitled to relief.” Finding it determinative that 

the two quoted phrases contain different words, Verdugo decided that “the 

prebriefing determination whether the petitioner has made a prima facie 

showing he or she ‘falls within the provisions of this section’ must . . . be 

different from the postbriefing prima facie showing the petitioner ‘is entitled 

to relief,’ required for issuance of an order to show cause, if only in the nature 

and extent of materials properly presented to the court in connection with the 

second prima facie step, or else the two prima facie showings specified in 

subdivision (c) would be redundant.” (Verdugo, supra, 44 Cal.App.5th at 

p. 329.) 

The explanation given of the wording difference between the two prima 

facie reviews is that the first addresses “eligibility” for relief, and the second 

addresses “entitlement” to relief. (Tarkington, supra, 49 Cal.App.5th at 

p. 902; Drayton, supra, 47 Cal.App.5th at pp. 975–976; but see Lewis, supra, 

43 Cal.App.5th at p. 1140, fn. 10 [“not clear from the text of subdivision (c) 

what, if any, substantive differences exist” between the two prima facie 

showings].) Under this explanation, the first review requires the trial court 
18

to “determine, based upon its review of readily ascertainable information in 

the record of conviction and the court file, whether the petitioner is 

statutorily eligible for relief as a matter of law,” and the second review 

requires the court to “take [the] petitioner’s factual allegations as true and 

make a preliminary assessment regarding whether he or she would be 

entitled to relief if the factual allegations were proved.” (Tarkington, at

p. 898; see also Drayton, at pp. 975–976.) 

We are not convinced. We accept that, generally speaking, there is a 

difference between eligibility for relief and entitlement to relief, and we are 

willing to assume that the phrase “falls within the provisions of this section” 

refers to eligibility, not entitlement. We also accept the principle that

“[w]hen the Legislature uses materially different language in statutory 

provisions addressing the same subject or related subjects, the normal 

inference is that the Legislature intended a difference in meaning.” (People v. 

Trevino (2001) 26 Cal.4th 237, 242.) 

But section 1170.95 as a whole does not support the supposition that 

the Legislature intended to distinguish meaningfully between eligibility for 

relief and entitlement for relief, because the statute uses these concepts 

interchangeably in several places. For example, subdivision (d)(3) of 

section 1170.95 provides, “At the hearing to determine whether the petitioner 

is entitled to relief, the burden of proof shall be on the prosecution to prove, 

beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” 

(§ 1170.95, subd. (d)(3), italics added.) If an order to show cause issues only if 

a petitioner makes a prima facie showing of entitlement to relief, which is 

something more than eligibility for relief, then it makes no sense to return to 

the concept of eligibility to characterize the prosecution’s burden at the 

hearing. 
19

Similarly, under section 1170.95, subdivision (d)(2), “[t]he parties may 

waive a resentencing hearing and stipulate that the petitioner is eligible to 

have his or her murder conviction vacated and for resentencing.” (Italics 

added.) Again, if an order to show cause does not issue unless a petitioner

makes a prima facie showing of entitlement to relief, which is something more 

than eligibility for relief, why would a stipulation that the petitioner is 

merely eligible for relief obviate the need for a hearing on entitlement? 

Although a statute’s use of different wording to refer to similar concepts may

sometimes be significant, “where statutes appear to use synonymous words or 

phrases interchangeably, courts have not hesitated to attribute the same 

meanings to them.” (Ferra v. Loews Hollywood Hotel, LLC (2019) 

40 Cal.App.5th 1239, 1266, review granted Jan. 22, 2020, S259172 [collecting 

cases].) Here, section 1170.95’s interchangeable references to eligibility and 

entitlement repudiate the notion that the concepts have different meanings.

The legislative history of Senate Bill No. 1437 also supports the 

conclusion that the Legislature used the concepts of eligibility and 

entitlement interchangeably. The first two versions of the bill would have 

required the parties to brief, within 60 days of receiving notice that a petition 

was filed, whether the petitioner was “entitled to relief,” and the trial court to 

hold a resentencing hearing if it found “sufficient evidence that the petitioner 

falls within the provisions of this section.” (Sen. Bill No. 1437, as introduced 

Feb. 16, 2018, § 6; id., as amended May 25, 2018, § 6.) The Tarkington 

majority marshaled this aspect of the bill’s evolution to claim that “defense 

counsel and the prosecutor were always intended to brief only the question of 

the petitioner’s entitlement to relief; the court was to determine eligibility—

whether the petitioner ‘falls within the provisions of this section’—on its own, 

without briefing on the question from the parties.” (Tarkington, supra, 
20

49 Cal.App.5th at p. 903.) But the decision does not explain why it would 

make sense to require the parties to brief whether the petitioner met the 

greater burden before the court determined whether he or she met the lesser 

burden.

This brings us to another text-based reason for not reading 

section 1170.95(c) to establish two prima facie reviews: The briefing 

deadlines the provision establishes run from “service of the petition,” not 

from any action by the trial court. As the Tarkington dissent insightfully 

observed, “[I]f the Legislature had anticipated that the court would 

undertake its own review of the merits of the petition as an intermediate step 

before appointing counsel, it would have calculated the deadlines not from 

the date of service of the petition but instead from the date the court 

completed its initial review. And though the Legislature required the 

prosecution to respond within 60 days of being served with the petition, it did 

not create a deadline for the court to conduct an intermediate review. Nor is 

there any provision allowing the court to relieve the parties of these statutory 

requirements. [Fn. omitted.] [¶] By omitting those steps, the Legislature 

signaled it did not intend for the court and prosecutors to duplicate their 

efforts by conducting the same review of the same documents at the same 

time.” (Tarkington, supra, 49 Cal.App.5th at p. 920 [dis. opn. of Lavin, J.].)8

8 We are perplexed by the Tarkington majority’s response that the 

Legislature intended to ensure “that the superior court will promptly rule on 

eligibility”—i.e., perform its first prima facie review—by “running the 

briefing period from the date of the petition’s filing.” (Tarkington, supra, 

49 Cal.App.5th at p. 904, fn. 9.) If the Legislature intended an initial prima 

facie review before the parties submitted briefing, surely a better way to 

ensure that a trial court conducted it promptly would be to impose a deadline 

on the court, not the prosecution. In fact, the court is not subject to any 

explicit deadline until it issues an order to show cause, at which point it must 

hold an evidentiary hearing within 60 days. (§ 1170.95, subd. (d)(1).) 
21

This point also undercuts the asserted policy-based justification for the 

prevailing interpretation of section 1170.95(c): that “ ‘[i]t would be a gross 

misuse of judicial resources to require the issuance of an order to show cause 

or even 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.’ ” 

(Lewis, supra, 43 Cal.App.5th at p. 1138; accord Tarkington, supra, 

49 Cal.App.5th at p. 901; Edwards, supra, 48 Cal.App.5th at p. 674; People v. 

Law (2020) 48 Cal.App.5th 811, 821, review granted July 8, 2020, S262490.) 

But, in fact, it does not conserve judicial resources to require trial courts to 

undertake a preliminary review of the record of conviction—which may not 

even be readily available—and to draw legal conclusions from this review 

without input from counsel, when prosecutors are simultaneously doing the 

same thing to comply with the statute and respond to petitions within 60 

days. It seems to us that a court can more efficiently and effectively weed out 

unmeritorious petitions after the prosecutor has weighed in. And if the 

petition is clearly without merit, the prosecution will presumably say so. 

Verdugo concluded that Senate Bill No. 1437’s legislative history 

reveals “the Legislature’s intent that the superior court perform a 

substantive gatekeeping function, screening out clearly ineligible petitioners 

before devoting additional resources to the resentencing process.” (Verdugo, 

supra, 44 Cal.App.5th at p. 331.) In reaching this conclusion, Verdugo

misread subdivision (c) to provide that “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 direct the prosecutor to file a 

response to the petition.” (Verdugo, at p. 330.) But section 1170.95(c) 

expressly requires that a prosecutor “shall file and serve a response within 60 
22

days of service of the petition,” without the need for any action by the trial 

court. (§ 1170.95(c), italics added.) Thus, the statute contradicts the idea 

that a prosecutor need not respond to a petition until the court requests a 

response, preserving the risk of duplicative efforts if the two-reviews 

framework is followed. 

The legislative evolution of section 1170.95 demonstrates, if anything, 

an increasing reluctance by the Legislature to impose on trial courts the 

responsibility to perform an initial substantive review. The original version 

of Senate Bill No. 1437 would have required a court to, upon receiving a 

petition, “request all of the following: [¶] (1) A copy of the charging documents 

from the superior court in which the case was prosecuted. [¶] (2) The abstract 

of judgment. [¶] (3) The reporter’s transcript of the plea, if applicable, and the 

sentencing transcript. [¶] (4) The verdict forms, if a trial was held. [¶] (5) Any 

other information the court finds relevant to its decision, including 

information related to the charging, conviction, and sentencing of the 

petitioner’s codefendants in the trial court.” (Sen. Bill No. 1437, as 

introduced Feb. 16, 2018, § 6.) It would have also required a court, upon 

receiving a petition, to give notice to the parties and “request that a response 

be filed from both parties,” responses that were not subject to any set 

statutory deadlines. (Ibid., italics added.) The second version of the bill 

eliminated the requirement that a court procure documents from the record 

of conviction, and it also made the parties’ responses mandatory within 60 

days of receiving the court’s notice. (Sen. Bill No. 1437, as amended 

May 25, 2018, § 6.) Finally, as we have indicated, the third and final version 

made the prosecutor’s response mandatory and due 60 days after the 

petition’s filing, and the petitioner’s reply optional and due 30 days after the 

prosecutor’s response. (§ 1170.95(c).) Taken as a whole, these changes 
23

strongly suggest that the Legislature intended for the prosecutor, not the 

court, to take the lead in identifying which petitioners are not entitled to 

relief as a matter of law based on the record of conviction.9

In short, we part ways with the decisions interpreting 

section 1170.95(c) to require two prima facie reviews with the right to counsel 

attaching only at the second stage of review, and hold that a petitioner is 

entitled to counsel upon the filing of a facially sufficient petition for relief

that requests counsel be appointed.

B. The Trial Court’s Failure to Appoint Counsel for Cooper Was 

Prejudicial.

We next turn to consider whether the trial court’s failure to appoint 

counsel for Cooper requires reversal. We conclude that it does.

Initially, we reject Cooper’s cursory assertion that “[t]he failure to 

appoint counsel at a critical stage of the proceedings requires reversal of the 

resulting judgment without regard to any harmless error analysis.” (See 

Edwards, supra, 48 Cal.App.5th at p. 675 [failure to appoint counsel 

susceptible to harmless-error analysis]; see also Tarkington, supra, 

49 Cal.App.5th at p. 910.) Still, we need not resolve whether the federal or 

state standard of prejudice applies, because the failure to appoint counsel

was prejudicial under both of them. Since the record does not conclusively 

demonstrate that Cooper was ineligible for relief as a matter of law, we 

9 Putting the initial onus on a prosecutor to investigate whether the 

record conclusively demonstrates the petitioner’s ineligibility for relief such 

that an order to show cause should not issue is also consistent with 

section 1170.95, subdivision (d)(3). Under that provision, once an order to 

show cause issues, the prosecution bears the burden of proving beyond a 

reasonable doubt that the petitioner is ineligible for relief. This is in contrast 

to habeas proceedings, in which the ultimate burden of proof is on the 

petitioner to demonstrate entitlement to relief by a preponderance of the 

evidence. (In re Gay (2020) 8 Cal.5th 1059, 1072.) 
24

cannot say that the error was harmless beyond a reasonable doubt (Chapman 

v. California (1967) 386 U.S. 18, 24), and it is reasonably probable that if 

Cooper had been afforded assistance of counsel his petition would not have 

been summarily denied without an evidentiary hearing. (People v. Watson

(1956) 46 Cal.2d 818, 836.)

To begin with, we agree with Cooper that the trial court improperly 

relied on the transcript of the preliminary hearing to conclude that he was 

ineligible for relief as a matter of law. “[A]t the preliminary hearing, the 

magistrate is called upon only to determine whether the factual showing is 

sufficient to establish probable cause to believe the defendant committed a 

felony,” a “fundamentally different factual determination[]” than the 

determination at trial of guilt beyond a reasonable doubt. (People v. DeJesus

(1995) 38 Cal.App.4th 1, 14.) So long as “there is such a state of facts as 

would lead a person of ordinary caution or prudence to believe and 

conscientiously entertain a strong suspicion of the guilt of the accused[,] . . .

the magistrate must hold the defendant to answer.” (Id. at p. 15.) Thus, “it is 

generally not necessary that [the magistrate] resolve all possible conflicts in 

the evidence and issues of credibility. [Citation.] Indeed, to the contrary, as 

a practical matter, there will rarely be conflicts to resolve,” since “[n]ormally, 

neither defense witnesses are called nor affirmative defenses actually 

litigated.” (Ibid.) “ ‘In short, the magistrate is not a trier of fact,’ ” and a 

ruling holding a defendant to answer is in no way equivalent to a jury’s 

factual finding or a defendant’s admission. (Ibid.; see Drayton, supra, 

47 Cal.App.5th at pp. 981–982.)

Consistent with these principles, Drayton held that the trial court 

improperly denied the defendant’s section 1170.95(c) petition by finding, 

based upon evidence from the preliminary hearing, that the defendant could 
25

still be convicted of felony murder after Senate Bill No. 1437 because he was 

a major participant in the underlying felony who acted with reckless 

indifference to human life. (Drayton, supra, 47 Cal.App.5th at pp. 981–982; 

see § 189, subd. (e)(3).) Pointing out that this determination “necessarily 

requires the weighing of facts and drawing inferences,” Drayton concluded 

that “the trial court should not have engaged in this factfinding without first 

issuing an order to show cause and allowing the parties to present evidence 

at a hearing, as described in section 1170.95, subdivision (d).” (Drayton, at 

p. 982, fn. omitted.) 

For similar reasons, we conclude that the trial court here erred by 

relying on the transcript of the preliminary hearing to deny Cooper’s petition

without first receiving briefing from the parties. Refusing to “split hairs over 

who is more culpable on these facts,” the court did not identify which of the 

three surviving bases under section 189 for a felony-murder conviction—

being the actual killer under subdivision (e)(1), aiding and abetting the 

murder with an intent to kill under subdivision (e)(2), or being a major 

participant in the underlying felony who acted with reckless disregard for 

human life under subdivision (e)(3)—it found to apply. And it did not even 

address the natural and probable consequences doctrine. As in Drayton, and 

particularly given the lack of clarity as to what Cooper’s and Mitchell’s 

respective roles were in Whitten’s killing, the court’s determination that 

Cooper could still be convicted of murder after Senate Bill No. 1437 

necessarily required factfinding.

The Attorney General agrees that “[t]o the extent that the trial court 

weighed evidence in its finding of no prima facie case, that could not justify 

dismissal of the petition at the prima facie stages ‘as a matter of law,’ ” and 

disclaims reliance “on the trial court’s findings in that regard as a basis for 
26

affirming its judgment.” But he urges us to conclude that any error was 

harmless on the alternate basis that “the record of conviction indisputably 

shows . . . that [Cooper’s] plea to second degree murder was based on a theory 

of malice murder.” Specifically, the Attorney General argues, “The trial court 

was obviously aware that the information alleged that [Cooper] personally 

used a deadly weapon and committed great bodily injury against the victim, 

as well as [Cooper’s] plea to the relevant charge, and his request to be 

described as an aider and abettor, meant he was not ‘entitled to relief’ . . . . 

Thus, even if [the court] was required to appoint counsel, the record of 

conviction would have inexorably led [it] to dismiss the petition after 

briefing.” 

We do not agree that these circumstances establish harmlessness. The 

information’s enhancement allegations are relevant to the requirement for 

relief that “[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.” 

(§ 1170.95, subd. (a)(1).) We do not see how the allegation that Cooper 

personally used a cinder block or the allegation that he inflicted great bodily 

injury on Whitten prevented the prosecution from trying him on a theory of 

felony murder or natural and probable consequences (see § 1170.95, 

subd. (a)(1)), much less how these unadmitted allegations nevertheless

establish his plea was to murder with malice aforethought or, as the Attorney 

General says, that he “admitted to acting with the intent to kill.” Indeed, 

even if the allegations had been found true instead of being dismissed, the 

Attorney General does not explain how they would necessarily establish that 

Cooper was ineligible for relief—at least given that Mitchell also attacked 

Whitten. (See, e.g., People v. Offley (2020) 48 Cal.App.5th 588, 593, 598 
27

[finding that defendant personally and intentionally discharged firearm 

causing victim’s death did not preclude relief under section 1170.95 as a 

matter of law].) 

Nor do we think it significant that there was mention at the plea 

hearing of the prosecutor’s promise to “write in his letter to the Board of 

Prison Terms that the evidence supports the theory that [Cooper] is not a 

direct actor here but an aider and abettor.” There is little context for this 

statement in the record before us, and such stray comments hardly constitute 

Cooper’s admission to being the actual killer, acting with an intent to kill, or 

anything else that would render him ineligible for relief under 

section 1170.95 as a matter of law.

Our opinion should not be read to suggest that, had the trial court 

appointed counsel for Cooper and received briefing from the parties, it could 

not then rely on the preliminary-hearing transcript to deny the petition for 

failure to make a prima facie showing of entitlement to relief. We need not 

decide whether the court could have properly denied the petition based on the 

existing record if, for example, Cooper was appointed counsel but did not 

exercise the opportunity to file a brief. Even if we assume that it was proper 

not to issue an order to show cause on the existing record, the error in failing 

to appoint counsel is prejudicial because it prevented Cooper from further 

developing the record to demonstrate potential entitlement to relief.

The order denying relief highlights this prejudice because it faulted

Cooper for submitting a form petition that did not “present any facts, address 

the factual basis for his plea, or address the evidence elicited during the 

preliminary hearing.” Nothing in section 1170.95, however, supports the 

notion that a petitioner must proffer such information before counsel is 

appointed. Rather, as we have explained, section 1170.95(c) establishes a 
28

procedure under which a petitioner is appointed counsel upon filing a facially 

sufficient petition that requests counsel. Without the assistance of counsel, 

prisoners seeking relief under section 1170.95 are unlikely to be in a position 

to marshal the type of evidence and arguments that the court apparently 

expected from Cooper.

III.

DISPOSITION

The order denying Cooper’s petition is reversed, and the matter is 

remanded for the trial court to appoint counsel for Cooper and conduct 

further proceedings under section 1170.95 consistent with this opinion.
29

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

People v. Cooper A156880
30

Trial Court:

Superior Court of the County of Alameda

Trial Judge:

Hon. Morris Jacobson

Counsel for Defendant and Appellant:

Eric S. Multhap, under appointment by the Court of Appeal

Counsel for Plaintiff and Respondent:

Xavier Becerra, Attorney General

Lance E. Winters, Chief Assistant Attorney General

Jeffrey M. Laurence, Senior Assistant Attorney General

Rene Chacon, Supervising Deputy Attorney General

Juliet B. Haley, Deputy Attorney General

People v. Cooper A156880