1

Filed 10/5/21 P. v. Bludworth CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY LEE BLUDWORTH,

Defendant and Appellant.

C091249

(Super. Ct. No. 

STKCRCNV19980016792)

Defendant Timothy Lee Bludworth appeals from a postjudgment order denying his 

petition for resentencing under Penal Code section 1170.95.1 Defendant argues the 

superior court erred by declining to issue an order to show cause because the court looked 

beyond his declaration to the jury’s felony-murder special circumstance finding in 

determining that he did not meet the prima facie requirements of section 1170.95. In a 

1

 Undesignated statutory references are to the Penal Code.
2

related argument, defendant contends the superior court erred by determining he was 

ineligible for resentencing as a matter of law based on the jury’s special circumstance 

finding. Finally, he argues that if we deem either of these claims forfeited, he received 

ineffective assistance of counsel.

Because defendant’s first two arguments are related, we address them together. 

We need not reach defendant’s ineffective assistance argument because we address his 

substantive claims on the merits. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A jury found defendant guilty of the first degree murder (§§ 187, 189) and robbery 

(§ 211) of the victim. (People v. Bludworth (Oct. 31, 2001, C032613) [nonpub. opn.] 

(Bludworth).) As to the murder count, the jury found true the special circumstance 

allegation that the murder was committed during the commission or attempted 

commission of robbery. (§ 190.2, subd. (a)(17)(A).) The jury also found true the 

allegation that a principal was armed with a firearm in the commission of the felonies. 

(§ 12022, subd. (a).) Following a direct appeal, this court affirmed the judgment in 

October 2001. (Bludworth, C032613.)

On January 17, 2019, defendant filed a petition in the superior court to vacate his 

first degree murder conviction under section 1170.95. The declaration attached to his 

petition provided he was charged with “first degree murder, armed with a firearm.” 

Further, the petition asserted a “complaint, information, or indictment was filed against 

[him] that allowed the prosecution to proceed under a theory of felony murder or murder 

under the natural and probable consequences doctrine.” Defendant also declared that

“[a]t trial, [he] was convicted of 1st or 2nd degree murder pursuant to the felony murder 

rule or the natural and probable consequences doctrine.” He declared that following the 

amendments made to sections 188 and 189, he could not now be convicted of first degree 

murder. He declared he was not the actual killer and he “did not, with intent to kill, aid, 

abet, counsel, command, induce, solicit, request, or assist the actual killer in the 
3

commission of murder in the first degree.” He declared he was not “a major participant 

in the felony or [] did not act with reckless indifference to human life during the course of 

the crime of felony.” Finally, he declared that “[t]he victim of the murder was not a 

peace officer in the performance of his or her duties, or [he] was not aware that the victim 

was a peace officer in the performance of his or her duties.” In an ex parte order, the 

superior court appointed counsel.

The district attorney filed a responsive pleading. Defense counsel did not file a 

reply. Following a hearing on the petition, the superior court denied defendant relief on 

the ground he had not made a prima facie showing of eligibility. The court reasoned as 

follows. “[Defendant] was convicted of first-degree murder. [¶] The People went 

forward on two theories: One being premeditation, the other felony murder aiding and 

abetting. [¶] The jury convicted [defendant]. They also found true the special 

circumstance pursuant to 190.2[, subdivision] (a)(17)(A) that found that [defendant] was 

either one, the actual killer; two, with the intent to kill, aided, abetted, counseled, 

commanded, induced and solicited, requested or assisted the actual killer in the 

commission of the murder in the first degree; or three, was a major participant in robbery 

and acted with reckless indifference to human life as described in [] section 190.2[, 

subdivision] (d).”

As the superior court observed, we affirmed the conviction, special circumstance 

finding, and sentence in an unpublished opinion in 2001. In Bludworth, defendant 

challenged the special circumstance finding, claiming that the jury instructions were 

erroneous. (Bludworth, supra, C032613.) We disagreed and affirmed the judgment. 

(Ibid.) On this basis, the superior court concluded that there was no prima facie evidence 

to support defendant’s petition.

Defendant filed a timely notice of appeal.
4

DISCUSSION

I

Applicable Law

Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, revised 

the felony-murder rule in California “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).) The bill amended the definition of malice in 

section 188, revised the definition of the degrees of murder to address felony-murder 

liability in section 189, and added section 1170.95, “which provides a procedure by 

which those convicted of murder can seek retroactive relief if the changes in the law 

would affect their previously sustained convictions.” (People v. Gutierrez-Salazar

(2019) 38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.)

Section 1170.95, subdivision (a) states that a person convicted of felony murder or 

murder under a natural and probable consequences theory may file a petition with the 

court for resentencing “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.”

Subdivision (b) requires the petitioner to submit a declaration that avers eligibility 

for relief under the statute (based on the requirements of subdivision (a)) and states the 

superior court case number, the year of conviction, and whether petitioner requests 

appointment of counsel. (§ 1170.95, subd. (b).) Section 1170.95, subdivision (c), which 
5

dictates how the court must handle the petition, reads: “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 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.”

Section 1170.95, subdivision (d) provides that a hearing to determine whether to 

vacate the murder conviction, recall the sentence, and resentence the petitioner as needed 

should be held within 60 days after the order to show cause; and the prosecution bears the 

burden of proving beyond a reasonable doubt that the petitioner is ineligible for 

resentencing. At the hearing, “[t]he prosecutor and the petitioner may rely on the record 

of conviction or offer new or additional evidence to meet their respective burdens.” (Id., 

subd. (d)(3).)

II

Defendant Is Not Entitled to Relief as a Matter of Law

Defendant contends the court erred by considering the jury’s felony-murder 

special circumstance finding when determining whether he pleaded a prima facie case 

under section 1170.95, subdivision (c). According to petitioner, the court should have 

found defendant’s declaration that he met the requirements of section 1170.95 was 

sufficient to issue an order to show cause, and the court thus denied him due process of 

law.

Our Supreme Court recently held that it is proper for a trial court to consider the 

record of conviction in determining whether the petitioner has made a prima facie 

showing that he or she falls within the provisions of section 1170.95 in People v. Lewis

(2021) 11 Cal.5th 5th 952, 970-971 (Lewis). The Supreme Court reasoned: “The record 
6

of conviction will necessarily inform the trial court’s prima facie inquiry under section 

1170.95, allowing the court to distinguish petitions with potential merit from those that 

are clearly meritless. This is consistent with the statute’s overall purpose: to ensure that 

murder culpability is commensurate with a person’s actions, while also ensuring that 

clearly meritless petitions can be efficiently addressed as part of a single-step prima facie 

review process. [Citation.]” (Lewis, at p. 971.) Following Lewis, we conclude that the 

trial court properly considered the record of conviction, including instructions to the jury 

and the jury’s verdicts, in concluding that defendant failed to make a prima facie 

showing.

Indeed, as is the case here, it does not matter whether the court reviewed 

petitioner’s record of conviction because petitioner was ineligible for resentencing under 

section 1170.95 as a matter of law. As noted, the jury found true a felony-murder special

circumstance allegation—that the murder was committed during a robbery. (§ 190.2, 

subd. (a)(17)(A).) Thus, even if the court issued an order to show cause and an 

evidentiary hearing was held at which the court could consider the record of conviction 

and defendant could introduce evidence, the court was still bound by the jury’s felonymurder special circumstance finding precluding petitioner from relief.

“The requirements for the felony-murder special circumstance did not change as a 

part of Senate Bill No. 1437, and are identical to the new requirements for felony murder 

following the enactment of Senate Bill No. 1437. In both instances, the defendant must 

have either actually killed the victim [citations]; acted with the intent to kill in aiding, 

abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in the 

killing [citations]; or been a major participant in the underlying felony and acted with 

reckless indifference to human life [citations]. By finding a special circumstance 

allegation true, the jury makes precisely the same finding it must make in order to convict 

a defendant of felony murder under the new law. Because a defendant with a felonymurder special circumstance could still be convicted of murder, he is ineligible as a 
7

matter of law to have his murder conviction vacated.” (People v. Galvan (2020) 

52 Cal.App.5th 1134, 1140-1141, rev. granted Oct. 14, 2020, S264284; see People v. 

Jones (2020) 56 Cal.App.5th 474, rev. granted Jan. 27, 2021, S265854; People v. Gomez

(2020) 52 Cal.App.5th 1, rev. granted Oct. 14, 2020, S264033; People v. Murillo (2020) 

54 Cal.App.5th 160, rev. granted Nov. 18, 2020, S264978; People v. Allison (2020) 

55 Cal.App.5th 449.)

We recognize some appellate courts have come to contrary conclusions and the 

issue is currently pending in our Supreme Court. (See People v. Torres (2020) 

46 Cal.App.5th 1168, rev. granted June 24, 2020, S262011; People v. Law (2020) 

48 Cal.App.5th 811, rev. granted July 8, 2020, S262490; People v. Smith (2020) 

49 Cal.App.5th 85, rev. granted July 22, 2020, S262835; People v. York (2020) 

54 Cal.App.5th 250, rev. granted Nov. 18, 2020, S264954; People v. Harris (2021) 

60 Cal.App.5th 939, rev. granted Apr. 28, 2021, S267802.) We, however, find the

Galvan line of cases more persuasive.

Defendant has had opportunity since the affirmance on direct appeal to attempt to 

challenge the robbery-murder special circumstance in a habeas corpus proceeding, under 

People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, but he 

did not present any documentary evidence to the court to show that he has done so and 

obtained relief from the robbery-murder special circumstance finding. If he wishes to 

challenge the sufficiency of the evidence supporting the felony-murder special 

circumstance finding, his remedy is to pursue extraordinary relief by way of habeas 

corpus. As our Supreme Court recently explained, Banks and Clark merely clarified the 

law. (In re Scoggins (2020) 9 Cal.5th 667, 674.) Where a decision does not announce a 

new rule of law but merely “clarifies the kind of conduct proscribed by a statute, a 

defendant whose conviction became final before that decision ‘is entitled to postconviction relief upon a showing that his [or her] conduct was not prohibited by the 

statute’ as construed in the decision. [Citation.] ‘In such circumstances, it is settled that 
8

finality for purposes of appeal is no bar to relief, and that habeas corpus or other 

appropriate extraordinary remedy will lie to rectify the error.’ ” (Id. at pp. 673-674.)

DISPOSITION

The order denying the petition is affirmed.

 /s/

BLEASE, Acting P. J.

We concur:

 /s/

HULL, J.

 /s/

DUARTE, J.