Filed 1/19/21 P. v. Fielder CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT FIELDER, JR.,

Defendant and Appellant.

 B305966

 (Los Angeles County

 Super. Ct. No. GA051505)

APPEAL from an order of the Superior Court of Los 

Angeles County. Teri Schwartz, Judge. Affirmed. 

David Y. Stanley, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Charles S. Lee, Deputy 

Assistant Attorney General, and Heidi Salerno, Deputy Attorney 

General, for Plaintiff and Respondent.

__________________________
2

Robert Fielder appeals the trial court’s summary denial of 

his petition for resentencing on his second degree murder 

conviction pursuant to Penal Code section 1170.95,1 a provision 

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

2018, ch. 1015) (SB 1437). We affirm.

BACKGROUND

In 2015, Fielder pled guilty to the second degree murder of 

Elvia Romero and was sentenced to 15 years to life. (§ 187, subd. 

(b)(1); § 186.22, subd. (b)(1).) He filed a form section 1170.95 

petition on February 6, 2020, declaring he was neither a direct 

aider and abettor in the murder nor a major participant who 

acted with reckless indifference to human life. He failed to check 

a box stating he was not the actual killer. 

He attached two letters to his petition. One was a 2005 

letter written by a deputy district attorney requesting secure 

housing for Fielder. In it, she explained Fielder “admitted he 

shot Elvia Romero” at the direction of fellow gang members. 

Romero died of a heart attack after being shot in the hip and leg. 

Fielder testified against a codefendant in a separate trial. 

The second letter was stamped received by the Board of 

Parole Hearings on September 14, 2016. It was submitted by one 

of the two detectives assigned to Fielder’s case. She explained 

the circumstances leading up to the shooting, and said the victim 

“Elvia [Romero] grabbed on to Fielder and he fired a shot which 

entered her knee.” She died of a heart attack she suffered during 

the shooting. The detective said during Fielder’s plea proffer, “he 

admitted shooting Elvia Romero” and agreed to testify truthfully 

1 Undesignated statutory citations refer to the Penal Code.
3

at his codefendant’s trial. According to the detective, he did, in 

fact, testify truthfully in that trial. 

The trial court denied Fielder’s section 1170.95 petition 

without appointing him counsel or holding a hearing. It 

explained: “On January 31, 2015, [Fielder] entered a plea of 

guilty for the second degree murder of Elvia Romero as part of an 

agreed upon disposition with the prosecution. He admitted 

shooting the victim in a later trial of his co-defendant. [¶] 

[Fielder] has not demonstrated eligibility for relief pursuant to 

[section 1170.95, subd. (c)], because he has not made a prima 

facie showing that he falls within the provisions of the statute.” 

DISCUSSION

Effective January 1, 2019, SB 1437 addressed “certain 

aspects of California law regarding felony murder and the 

natural and probable consequences doctrine by 

amending . . . sections 188 and 189” and by adding “section 

1170.95, which provides a procedure by which those convicted of 

murder can seek retroactive relief if the changes in law would 

affect their previously sustained convictions. (Stats. 2018, ch. 

1015, §§ 2–4.)” (People v. Martinez (2019) 31 Cal.App.5th 719, 

722–723 (Martinez).) In short, SB 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.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” 

(Martinez, at p. 723.) 

Section 1170.95 creates a multi-step procedure for a 

defendant to petition for resentencing pursuant to SB 1437. 
4

A defendant may petition for resentencing if he or she was 

“convicted of felony murder or murder under a natural and 

probable consequences theory” and the following conditions are 

met: “(1) A charging document 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 or second 

degree murder following trial or an accepted plea; and (3) The 

petitioner could ‘not be convicted of first or second degree murder 

because of changes to Section[s] 188 or 189’ made by Senate Bill 

No. 1436. (§ 1170.95, subd. (a).) [¶] Under section 1170.95, 

subdivision (b), the petition must include: a declaration from the 

petitioner that he or she is eligible for relief under the statute, 

the superior court’s case number and year of conviction, and a 

statement as to whether the petitioner requests appointment of 

counsel. (§ 1170.95, subd. (b)(1).) If any of the required 

information is missing and cannot ‘readily [be] ascertained by the 

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

filing of another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. 

Lewis (2020) 43 Cal.App.5th 1128, 1135–1136 (Lewis), rev. 

granted, Mar. 18, 2020, S260598.)

Section 1170.95, subdivision (c) sets forth the procedure 

once the defendant files a complete petition: “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 response is served. These deadlines 
5

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.” 

Should the court issue an order to show cause, it must hold 

a hearing to determine whether to vacate the murder conviction. 

(§ 1170.95, subd. (d).) If the court vacates the murder conviction, 

the court must resentence the defendant on the remaining 

counts, or if no target offense was charged, “the petitioner’s 

[murder] conviction shall be redesignated as the target offense or 

underlying felony for resentencing purposes.” (§ 1170.95, subd. 

(d)(3), (e); see Lewis, supra, 43 Cal.App.5th at pp. 1136–1137.) 

We follow the cases interpreting section 1170.95, 

subdivision (c) to permit a trial court to summarily deny a 

petition without appointing counsel when the defendant fails to 

make a prima facie showing of eligibility for resentencing. 

(People v. Falcon (2020) 57 Cal.App.5th 272, 276 [citing cases]. 

In doing so, the court may consider the record of conviction. 

(Ibid.)

Fielder contends the trial court improperly engaged in 

judicial factfinding at the prima facie stage by considering his 

testimony from his codefendant’s trial, which was not part of his 

record of conviction. (See, e.g., People v. Drayton (2020) 47 

Cal.App.5th 965, 980 (Drayton) [court may not engage in 

factfinding at prima facie stage of section 1170.95 review].) 

We disagree. There is no indication the trial court actually 

reviewed or considered any records from the separate trial or 

engaged in any judicial factfinding. Instead, in the 2005 letter 

Fielder submitted with his petition, the deputy district attorney 

explained Fielder admitted he shot Romero and agreed to testify 

truthfully at his codefendant’s trial, which he did. The trial court 
6

could have inferred his “truthful” testimony included his 

admission he shot Romero without examining the trial transcript 

from the codefendant’s trial. 

If Fielder is suggesting the trial court erred in considering 

the letters he presented, he invited the error by submitting them 

as part of his petition. As exhibits attached to Fielder’s petition, 

we presume he adopted the facts set forth in the letters as true. 

(See Drayton, supra, 47 Cal.App.5th at p. 980 [presuming facts 

set forth in section 1170.95 petition are true]; see also People v. 

Garcia (2020) 57 Cal.App.5th 100, 112, (Garcia) [trial court 

properly considered prior appellate opinion in part because 

“the opinion was attached as ‘Exhibit A’ to appellant’s petition”].) 

Fielder cannot now claim the court was barred from considering 

exhibits he submitted to support his prima facie case for 

resentencing. (See People v. Flinner (2020) 10 Cal.5th 686, 723, 

[defendant “cannot claim error in admission of evidence he 

elicited”].)

Nor does Fielder contend the factual statements in the 

letters were inaccurate. He argues a factual dispute existed 

because the letters stated Romero died of a heart attack during 

the shooting, not from the gunshot wounds. He does not explain 

how that demonstrates he lacked the intent to kill or transforms 

the basis for his plea into either felony murder or aiding and 

abetting on a natural and probable consequences theory of 

murder eliminated by SB 1437. He is simply urging the court to 

relitigate the causation element of the murder case against him. 

(See Garcia, supra, 57 Cal.App.5th at p. 105 [In passing SB 1437, 

“the legislature surely did not intend that appellant would be 

entitled to an evidentiary hearing to retry the underlying 

criminal case against him.”].)
7

Finally, if the court engaged in improper judicial 

factfinding, any error was harmless. (People v. Daniel (2020) 57 

Cal.App.5th 666, 678 [applying reasonable probability standard 

to assess section 1170.95 error].) Nothing suggested the 

prosecution intended to pursue felony murder or aiding and 

abetting based on natural and probable consequences. Fielder 

was charged with first degree murder with malice aforethought, 

along with special circumstances of gang murder and murder by 

means of lying in wait, both of which required intent to kill. 

(§ 190.2, subds. (a)(15), (22).) He was also charged with 

conspiracy to commit murder, and as part of the overt acts of the 

conspiracy, it was alleged Fielder and his coconspirators went to 

Romero’s house intending to kill her granddaughter. They 

dragged Romero out of the house and shot her. Both letters 

Fielder submitted with his petition confirmed he was the shooter. 

He failed to check the box in his form petition saying he was not 

the actual killer. If Fielder was to be tried and convicted, it 

would have been on a theory of murder that remained valid after 

SB 1437. He was not entitled to resentencing as a matter of law.

DISPOSITION

The order is affirmed.

BIGELOW, P. J.

We Concur:

STRATTON, J. WILEY, J.