Filed 1/19/21 P. v. Duckett CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ROOSEVELT DUCKETT,

Defendant and Appellant.

 B301927

 (Los Angeles County

 Super. Ct. No. A308967)

APPEAL from an order of the Superior Court of Los 

Angeles County, Drew E. Edwards, Judge. Affirmed.

Cynthia L. Barnes, 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,
2

Senior Assistant Attorney General, Charles S. Lee and 

Douglas L. Wilson, Deputy Attorneys General for Plaintiff 

and Respondent.

__________________________________________________

INTRODUCTION

In 1974, appellant Roosevelt Duckett was convicted of 

first degree murder, and sentenced to life in prison. Court 

records indicate appellant was not convicted under the 

felony murder rule or the natural and probable consequences 

doctrine.

Nevertheless, in March 2019, appellant filed a petition 

seeking resentencing under Penal Code section 1170.95.1 

The court appointed counsel for appellant, received the 

People’s opposition to appellant’s petition, and set a hearing 

1 Effective January 1, 2019, Senate Bill No. 1437 “‘amend[ed] 

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).)” 

(People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).) 

It also enacted Penal Code section 1170.95, permitting those who 

claimed they could not be convicted of murder under the new 

rules to petition for resentencing. (All further undesignated 

statutory references are to the Penal Code.) Among other things, 

section 1170.95 provides that the People have 60 days to oppose 

such a petition, and thereafter the petitioner has 30 days to 

reply. (§ 1170.95, subd. (c).)
3

“for receipt of petitioner’s response.” However, before any 

response was received, and three days before it was due, the 

court denied the petition, finding that appellant was not 

entitled to relief as a matter of law.

On appeal, appellant does not dispute his ineligibility 

for relief. Instead, he argues the denial of his petition before 

the receipt of his reply constitutes both statutory error and 

structural error requiring reversal. While we agree the 

court erred by denying his petition before receiving his reply, 

we disagree the error was structural. Because we conclude 

appellant is ineligible for relief as a matter of law, we find 

the court’s error harmless and affirm the order denying 

appellant’s petition.

STATEMENT OF RELEVANT FACTS

In 1974, appellant was convicted by a jury of first 

degree murder. According to the probation officer’s report, 

appellant and another man stole a car and drove up to a 

group of six people. They shouted, “‘Crip here,’” and 

appellant’s companion opened fire, killing one, and injuring 

two others. Appellant was sentenced to life imprisonment, 

with the possibility of parole. 

In March 2019, appellant filed a petition for 

resentencing under section 1170.95. The court reviewed the 

petition and appointed counsel. The People filed a response 

in August 2019, contending appellant was not entitled to 

relief because he was not convicted under the felony murder 
4

rule or the natural and probable consequences doctrine. 

Attached to the People’s response were:

–The information, showing that appellant was 

charged with one count of first degree murder, 

two counts of assault with a deadly weapon, one 

count of grand theft auto, and one count of 

joyriding. 

–The jury instructions in the underlying case, 

showing that no instructions regarding the 

felony murder rule or natural and probable 

consequences theory were given.

–The jury verdict form showing appellant was 

convicted of first degree murder. 

–A transcript from the sentencing hearing, at 

which the court recounted that appellant was an 

“active participant in the crime of murder,” 

“drove the car with” the actual shooter, 

“disposed of the killer’s gun,” and was “just as 

involved as the man who actually pulled the 

trigger.” The court opined that “to say that 

[appellant] didn’t know what was going to 

happen, you have to be far more naïve than I 

am.” 

–A parole decision denying parole and reporting 

that appellant denied he was the shooter in the 

underlying crime, but admitting he was the 

“driver of the vehicle.” 
5

In August 2019, the court issued a minute order noting 

receipt of the People’s response and setting a hearing on 

September 23, 2019 “for receipt of petitioner’s response.” 

However, on September 20, 2019, before appellant filed a 

response, the trial court issued a ruling, summarily denying 

appellant’s petition because he was “not entitled to relief as 

a matter of law for the following reason: . . . The petitioner 

was convicted of murder but the record of conviction reflects

that the petitioner was not convicted under a theory of 

felony-murder of any degree, or a theory of natural and 

probable consequences. There are no jury instructions for 

felony murder or natural and probable consequences.” 

Appellant timely appealed. 

DISCUSSION

A. Senate Bill No. 1437 Permits Those 

Convicted of Felony Murder or Murder 

Under a Natural and Probable 

Consequences Theory to Petition for 

Re-Sentencing

“On September 30, 2018 the Governor signed Senate 

Bill 1437, which, effective January 1, 2019, amended 

sections 188 and 189, significantly modifying the law 

relating to accomplice liability for murder.” (People v. 

Verdugo (2020) 44 Cal.App.5th 320, 325, review granted 
6

Mar. 18, 2020, S2604932 (Verdugo).) Specifically, “Senate 

Bill No. 1437 ‘amend[ed] 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, supra, 31 Cal.App.5th at 723.)3

2 The review order states: “Further action in this matter is 

deferred pending consideration and disposition of a related issue 

in People v. Lewis, S260598 (see Cal. Rules of Court, rule 

8.512(d)(2)), or pending further order of the court.” (Verdugo,

S260493, Supreme Court Mins., Mar. 18, 2020.) The review 

order in People v. Lewis states: “The issues to be briefed and 

argued are limited to the following: (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)[?]” (People v. Lewis, supra, Supreme Court Mins. 

Mar. 18, 2020.)

3 Prior to the enactment of SB 1437, the felony-murder rule 

made “a killing while committing certain felonies murder without 

the necessity of further examining the defendant’s mental state.” 

(People v. Chun (2009) 45 Cal.4th 1172, 1182.) “[U]nder the 

natural and probable consequences doctrine, an aider and abettor 

is guilty not only of the intended crime, but also ‘for any other 

offense that was a “natural and probable consequence” of the 

crime aided and abetted.’” (People v. McCoy (2001) 25 Cal.4th 

1111, 1117.)
7

“Senate Bill 1437 also added section 1170.95 to the 

Penal Code, which permits an individual convicted of felony 

murder or murder under a natural and probable 

consequences theory to petition the sentencing court to 

vacate the conviction and to be resentenced on any 

remaining counts if he or she could not have been convicted 

of first or second degree murder because of Senate Bill 

1437’s changes . . . .” (Verdugo, supra, 44 Cal.App.5th at 

326, rev.gr.)

Section 1170.95 requires a petition for relief to include 

certain basic elements, such as a declaration that the 

petitioner is entitled to relief, information regarding the 

underlying conviction, and whether the petitioner requests 

the appointment of counsel. (§ 1170.95, subd. (b)(1).) “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.’” (Verdugo, supra, 44 Cal.App.5th 

at 327, rev.gr., quoting § 1170.95, subd. (b)(2).)

Section 1170.95, subdivision (c), provides for “two 

additional court reviews before an order to show cause may 

issue, one made before any briefing to determine whether 

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

within section 1170.95—that is, that the petitioner may be 

eligible for relief—and a second after briefing by both sides 

to determine whether the petitioner has made a prima facie 

showing he or she is entitled to relief.” (Verdugo, supra, 44 
8

Cal.App.5th at 328, rev.gr.) “Once the order to show cause 

issues, the court must hold a hearing to determine whether 

to vacate the murder conviction and to recall the sentence 

and resentence the petitioner on any remaining counts.” (Id.

at 327, citing § 1170.95, subd. (d)(1).)

B. The Court Erred by Dismissing the Petition 

Before Receiving and Considering 

Appellant’s Reply Brief

As set forth above, a court makes two prima facie 

determinations under section 1170.95, subdivision (c) -- one 

before the parties’ briefing, and one after. Because the court 

had appointed counsel for appellant, and had received the 

People’s opposition to the petition, we conclude the court’s 

denial of the petition was a finding that appellant had failed 

to make the second prima facie showing. (See Verdugo, 

supra, 44 Cal.App.5th at 332, rev.gr. [“The structure and 

grammar of [section 1170.95, subdivision (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”]; id. at 

328 [second prima facie review occurs “after briefing by both 

sides”].) The denial order did not mention the People’s 

opposition, but the reason given for the denial was one 

advocated by the People, viz., that appellant’s murder 
9

conviction was not based on a theory of felony murder or a 

theory of natural and probable consequences.

4

Appellant argues the court erred by denying his 

petition before receiving and considering his reply. Whether 

section 1170.95 permits the court to find the second prima 

facie showing was not made under subdivision (c) after 

receiving an opposition from the People but before 

appellant’s statutorily permitted reply is received or due is a 

question of statutory construction, which we review de novo. 

(Verdugo, supra, 44 Cal.App.5th at 328, fn. 8, rev.gr.)

The language of the statute is clear: after the People 

file an opposition, “the petitioner may file and serve a reply 

within 30 days after the prosecutor response is served.” 

(§ 1170.95, subd. (c).) As Verdugo noted, under subdivision 

(c) of section 1170.95, the court may deny the petition either 

“before any briefing to determine whether the petitioner has 

made a prima facie showing he or she falls within section 

1170.95” or “after briefing by both sides . . . .” (Verdugo, 44 

Cal.App.5th at 328, rev.gr.; see also id. at 330 [the second 

determination is to be made “with the benefit of the parties’

briefing and analysis” (italics added)].) Here, it is 

undisputed that the court summarily denied the petition 

after receiving the People’s opposition but without affording 

4 Specifically, the People argued: “Petitioner was convicted 

by a jury of first-degree murder, two counts of assault with a 

deadly weapon and unlawful taking of a motor vehicle. The jury 

was not instructed on either felony murder or natural and 

probable consequences theories of culpability.” 
10

appellant an opportunity to file a timely reply. This was 

error. We next address whether this error was harmless.

C. The Error Was Harmless

1. Appellant Was Ineligible for Relief as a 

Matter of Law

Appellant does not dispute he was ineligible for relief 

as a matter of law. Instead, he argues that denying his 

petition without receiving or considering his reply brief 

amounted to an unconstitutional denial of his rights to due 

process and assistance of counsel, and constitutes structural 

error, requiring reversal.

People v. Daniel (2020) 57 Cal.App.5th 666 (Daniel)

rejected a similar argument. There, the trial court 

summarily denied the appellant’s section 1170.95 petition 

without appointing counsel. (Daniel, supra, 57 Cal.App.5th 

at 670.) The appellant argued that “‘the deprivation of his 

right to counsel is a structural error,’ requiring reversal 

without regard to prejudice.” (Id. at 674.) While the court of 

appeal agreed that the trial court violated section 1170.95, it 

held this violation was not structural.

5 Citing People v. 

5 The Daniel court acknowledged that it “broke with other 

Courts of Appeal and held that ‘the right to counsel attaches 

upon the filing of a facially sufficient petition that alleges 

entitlement to relief’—that is, a petition that includes all the 

information required under section 1170.95, subdivision (b).” 

(Daniel, supra, 57 Cal.App.5th at 673.) We express no opinion on 

that issue.
11

Perez (2018) 4 Cal.5th 1055, 1063-1064, the court held that 

“legislation ‘intended to give inmates serving otherwise final 

sentences the benefit of ameliorative changes to applicable 

sentencing laws,’ including Senate Bill No. 1437, does not 

implicate the Sixth Amendment.” (Daniel, supra, 57 

Cal.App.5th at 675.) It further held a constitutional right to 

counsel “‘only kicks in once the defendant makes a prima 

facie showing of entitlement [to] postconviction relief.’” 

(Ibid.) Thus the Daniel court affirmed the denial of the 

petition despite the error, finding that, though the defendant 

“had a statutory right to counsel upon filing a facially 

sufficient petition, the violation of that right was not a 

structural error—and thus not reversible per se—because it 

was not ‘“analogous to” . . . “the total deprivation of the right 

to counsel at trial.”’ [Citations.] Rather, the failure to 

appoint counsel upon the filing of a facially sufficient 

petition under section 1170.95 is susceptible to review for 

prejudice. [Citation.] And harmlessness is established if the 

record ‘conclusively demonstrate[s] that [the petitioner] was 

ineligible for relief as a matter of law.’” (Ibid.) Because 

“records in the court’s own file—in this case the jury 

instructions—demonstrate that the petitioner is ineligible 

for relief as a matter of law,” Daniel affirmed the denial. (Id.

at 666.)

We agree with Daniel’s analysis. While the trial court 

erred by summarily denying appellant’s petition before 

receiving and considering his statutorily permitted reply, 

this error was harmless because the record conclusively 
12

demonstrates that appellant was ineligible for relief as a 

matter of law. Appellant does not suggest otherwise.6

2. Appellant’s Cases Are Unhelpful

Appellant cites the dissenting opinion in People v. 

Tarkington (2020) 49 Cal.App.5th 892, review granted Aug. 

12, 2020, S263219, for the proposition that the Legislature 

intended a petitioner to be represented by counsel upon the 

filing of a facially sufficient petition, and that this counsel 

would help the court determine whether to hold a 

resentencing hearing. But as explained above, we agree the 

trial court erred in denying appellant’s petition without 

waiting for appellant’s reply. The question is whether this 

error warrants reversal.

Appellant cites Bell v. Cone (2002) 535 U.S. 685, 

695-696 and People v. Doolin (2009) 45 Cal.4th 390, 453 for 

the proposition that defendants facing charges have a right 

to counsel at “all critical stages,” and cites United States v. 

Yamashiro (9th Cir. 2015) 788 F.3d 1231, 1235 and People v. 

Rouse (2016) 245 Cal.App.4th 292, 297 for the proposition 

that sentencing is a “critical stage.” But appellant was not 

6 Appellant also argues that the court’s failure to wait for his 

reply brief violated his right to due process, but forfeits the 

argument by failing to develop it or support it with citation to 

authority. (See, e.g., In re Marriage of Falcone & Fyke (2008) 164 

Cal.App.4th 814, 830 [absence of cogent legal argument or 

citation to authority forfeits the contention; “[w]e are not bound 

to develop appellants’ arguments for them”].)
13

denied counsel at a sentencing hearing: he was instead 

denied the assistance of counsel when the court was deciding

whether a new sentencing hearing might be ordered. As 

Daniel stated: “structural error may occur when, after an 

order to show cause issues, a defendant is denied counsel at 

a hearing under section 1170.95, subdivision (d). Here, 

however, the petition was denied before any such order was 

issued.” (Daniel, supra, 57 Cal.App.5th at 675.) Here, too, 

appellant’s petition was denied before the court ordered a 

hearing under section 1170.95, subdivision (d). Because 

appellant was ineligible for relief as a matter of law, the 

court’s error was harmless.
14

DISPOSITION

The court’s order denying appellant’s section 1170.95 

petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.