Filed 7/27/21 P. v. Hodges CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

ODELL D. HODGES,

 Defendant and Appellant.

2d Crim. No. B305465

(Super. Ct. No. BA203416)

(Los Angeles County)

Odell D. Hodges appeals an order denying his Penal Code 

section 1170.95 petition for resentencing of his prior first degree 

murder conviction.

1 (§§ 187, subd. (a), 189.) The trial court’s 

belief that Hodges was the shooter was confirmed by defense 

counsel. The jury found that Hodges did not “discharge [the]

firearm” that killed the victim. We reverse and remand.

FACTS

On the evening of June 6, 2000, Troy Cox, Desmond 

Alexander, and a man called “S-Dog” were outside a house in Los 

1 All statutory references are to the Penal Code.
2

Angeles. They were affiliated with the Bloods street gang. 

Hodges and a man with a blue cap walked by. Alexander and 

S-Dog wanted to know why a man in a blue cap was in the 

Bloods’ neighborhood. A fight broke out. Five or 10 minutes 

later, Hodges and his friend retreated.

Alexander ran to the back of the house followed by Hodges 

and the man in the blue cap who were armed. Cox heard gun 

shots. Alexander was dead. Hodges and the man in the blue cap 

returned to a car and drove away. More than one firearm was 

involved in this incident.

Later that night, Cox identified Hodges’s picture in a 

photographic lineup as the person who shot Alexander.

The jury found Hodges guilty of first degree murder (§ 187, 

subd, (a)) with findings that he used and discharged a firearm

(§ 12022.53).

The prosecutor’s theory was that Hodges was the person 

who actually shot and killed Alexander. But the jury rejected

that claim.

The jury made the following finding: “We further find the 

allegation that in the commission of the above offense, the said 

defendant ODELL DUN HOWARD HODGES, personally and 

intentionally discharged a firearm to wit, a handgun which 

proximately caused death to DESMOND ALEXANDER within 

the meaning of Penal Code section 12022.53(d) to be NOT 

TRUE.”

On March 25, 2019, Hodges filed a petition for resentencing 

under section 1170.95. In that petition he stated, “I was not the 

actual killer.”

The People did not claim that Hodges was the actual killer, 

but nevertheless opposed the petition.
3

During the hearing on the initial phase of the section 

1170.95 proceeding, the trial court asked Hodges’s counsel: 

“[P]lease correct me if I am wrong on this your client was the

actual shooter.” Counsel: “I would submit on the court’s 

assessment of the case.” The court: “That being the fact that I 

don’t believe your client qualifies or is eligible for relief under 

[Senate Bill No. 1437, section] 1170.95. I will deny your 

petition.”

DISCUSSION

The Section 1170.95 Petition

Hodges contends the trial court erred by summarily 

denying his section 1170.95 petition based on the erroneous 

assumption that he was the actual shooter. He also contends his 

trial counsel provided ineffective assistance at that hearing. We 

agree. 

In 2018 the Legislature passed Senate Bill No. 1437. It

authorized a procedure for those convicted of first or second 

degree murder to petition for resentencing. (§ 1170.95.) It 

changed the standard for first degree or second degree murder 

convictions (§§ 188, 189) based on the felony murder rule or the 

natural and probable consequences doctrine. “These changes, 

which the Legislature adopted in 2018 in Senate Bill 1437 and 

which went into effect on January 1, 2019, 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. Anthony (2019) 32 Cal.App.5th 1102, 

1147, italics added.) 

Section 1170.95, subdivision (a)(1)-(3) provides, in relevant 

part, “A person convicted of felony murder or murder under a 
4

natural and probable consequences theory may file a petition 

with the court that sentenced the petitioner to have the 

petitioner’s murder conviction vacated and to be resentenced on 

any remaining counts when all of the following conditions apply: 

[¶] (1) A complaint, information, or indictment was filed against

the petitioner that allowed the prosecution to proceed under a 

theory of felony murder or murder under the natural and 

probable consequences doctrine. [¶] (2) The petitioner was 

convicted of first degree or second degree murder . . . . [¶] (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.”

Section 1170.95, subdivision (c) provides: “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.” (Italics added.)

The first step in the section 1170.95 procedure requires the 

petitioner to make a prima facie showing that he or she is eligible 

for relief. If a prima facie showing is made, the trial court 

proceeds to the second stage and issues an order to show cause 

for a hearing. 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.” (§ 1170.95, subd. 
5

(d)(3), italics added.) “[T]he burden of proof shall be on the 

prosecution to prove, beyond a reasonable doubt, that the 

petitioner is ineligible for resentencing.” (Ibid.) 

Courts have held that where the petition is frivolous or the

petitioner is categorically ineligible for section 1170.95 relief, the 

trial court may summarily dismiss the petition. (People v.

Cervantes (2020) 44 Cal.App.5th 884, 887; People v. Verdugo

(2020) 44 Cal.App.5th 320, 329-330, review granted Mar. 18, 

2020, S260493; People v. Cornelius (2020) 44 Cal.App.5th 54, 58,

review granted Mar. 18, 2020, S260410.)

A Fair Hearing at the First Stage of the Section 1170.95 Process 

Here at the first stage of the section 1170.95 proceeding,

the trial court summarily denied the petition. It asked Hodges’s

counsel, “[P]lease correct me if I am wrong on this your client was 

the actual shooter.” Defense counsel confirmed that to be the 

case by stating, “I would submit on the court’s assessment of the 

case.” Based on this representation, the court said, “That being 

the fact . . . I don’t believe your client qualifies . . . .” (Italics 

added.) But counsel’s representation to the court, upon which the 

court relied, was not accurate. According to a jury finding,

Hodges was not the actual killer.

The jury made the following finding: “We further find the 

allegation that in the commission of the above offense, the said 

defendant ODELL DUN HOWARD HODGES, personally and 

intentionally discharged a firearm to wit, a handgun which 

proximately caused death to DESMOND ALEXANDER within 

the meaning of Penal Code Section 12022.53(d) to be NOT 

TRUE.” This supports Hodges’s claim that he was not the actual 

killer.
6

The trial court did not consider this jury finding before 

making its decision to summarily deny the petition on the ground 

that Hodges was the actual killer. Nor did it consider the sworn 

statements in Hodges’s petition that 1) he was not the actual 

killer; and 2) he could not “now be convicted of 1st or 2nd degree 

murder because of changes made to Penal Code §§ 188 and 189, 

effective January 1, 2019.” (People v. Drayton (2020) 47 

Cal.App.5th 965, 980 [the court must consider the sworn 

allegations in the section 1170.95 petition].) Instead, the court 

solely relied on counsel’s representation to the court. 

Consequently, the finding the court made to deny the petition 

was based on an incorrect fact confirmed by defense counsel.

The People concede that the trial court denied the petition 

on the basis of the false finding that Hodges was “the actual 

killer as a matter of law.” They claim, however, that we may 

affirm this order by substituting our own findings.

We agree with Hodges that he did not receive a fair hearing 

at the first stage of the section 1170.95 proceeding. He claims 

that because the record shows that he did not receive a fair 

hearing, he is consequently entitled to another section 1170.95

hearing. We agree.

Section 1170.95 provides a procedure to accurately 

determine a defendant’s eligibility for resentencing. The 

Legislature’s goal was to ensure that defendants were provided a 

proceeding consistent with the principles of fair play and “due 

process to the petitioner.” (People v. Duchine (2021) 60 

Cal.App.5th 798, 813.) We are confident the Legislature never 

intended that a first stage section 1170.95 proceeding could be 

summarily derailed by a patently false factual finding. A fair 
7

hearing at this first stage requires the court to base its decision 

on the record. That did not happen here. 

Right to Effective Assistance of Counsel at a

Section 1170.95 Hearing

Hodges contends he was denied effective assistance of 

counsel at the first stage section 1170.95 hearing. He claims his 

counsel’s words prejudicially impacted his section 1170.95 

petition. (Strickland v. Washington (1984) 466 U.S. 668, 687-692 

[ineffective assistance is shown where counsel’s performance falls 

below the standard for reasonably competent counsel and has a 

prejudicial impact on the client’s case].)

The People claim Hodges “had no Sixth Amendment right

to counsel” because this was a “postconviction” proceeding. But

counsel was appointed to represent him, and of course he had the 

right to effective assistance of counsel. 

A defendant’s right to counsel in post-judgment proceedings 

“derives not from the Sixth Amendment but “ ‘ “from the due 

process and equal protection clauses of the Fourteenth 

Amendment.” ’ ” (People v. Rouse (2016) 245 Cal.App.4th 292, 

300, citing Martinez v. Court of Appeal of Cal. Fourth Appellate 

Dist. (2000) 528 U.S. 152, 155; Douglas v. California (1963) 372 

U.S. 353, 356-357.) “It is well established that due process 

requires an incarcerated defendant be afforded the right to 

counsel in various circumstances where the Sixth Amendment 

does not.” (Rouse, at p. 300 [“If we were to assume the right to 

counsel does not emanate from the Sixth Amendment since this 

is a postconviction proceeding, we still conclude defendant had a 

due process right to the assistance of counsel”].)

This proceeding involves a liberty interest and a right to 

resentencing. This was the first stage of the section 1170.95 
8

process, but these proceedings involve very important due process 

and statutory rights. This was a critical stage of the criminal 

proceeding. The appointment of counsel for Hodges was 

appropriate and necessary. (People v. Rouse, supra, 245 

Cal.App.4th at p. 300; see also People v. Duchine, supra, 60 

Cal.App.5th at p. 813.)

Where the defendant is entitled to counsel, and has 

appointed counsel, as here, he or she also has the right to receive 

effective assistance of counsel. (In re Emilye A. (1992) 9 

Cal.App.4th 1695, 1711.) Hodges was entitled to representation 

that could effectively lead to “a factfinding process affording a 

degree of due process to the petitioner.” (People v. Duchine,

supra, 60 Cal.App.5th at p. 813.) Here Hodges did not receive an 

accurate factual presentation in court by his counsel. His lawyer

did not review the available record. This does not meet a 

standard of reasonable representation.

Moreover, the People’s claim that counsel’s performance 

was not prejudicial is incorrect. In Hodges’s section 1170.95 

petition, he declared, “I was not the actual killer.” The jury 

finding supports that claim. Counsel did not consider that jury 

finding and Hodges’s section 1170.95 verified petition allegations.

Counsel and the court were not in a position to assert or make 

contrary fact findings at the first stage of the section 1170.95 

proceeding. (People v. Drayton, supra, 47 Cal.App.5th at pp. 980, 

982.) Moreover, in the People’s opposition to the section 1170.95 

petition, they did not claim that Hodges was the actual shooter.

Because of these facts, the trial court erred by relying on 

defense counsel’s representation of facts to summarily deny

Hodges’s section 1170.95 petition. (People v. Drayton, supra, 47 

Cal.App.5th at p. 980 [the verified section 1170.95 petition may 
9

alone constitute a sufficient prima facie showing under section 

1170.95 that would preclude a summary dismissal of the 

petition].) The statement by Hodges’s counsel was incorrect and

it directly caused the summary dismissal. It incorrectly placed 

Hodges into the ineligible category for section 1170.95 relief as 

the actual killer and foreclosed any determination about other 

factors that could determine whether he was eligible for section 

1170.95 relief. We do not decide those factors because they are 

initially issues the trial court must resolve. In certain cases the 

trial court may receive additional evidence from the parties to

assist it in deciding the petition. (§ 1170.95, subd. (d)(3).)

Moreover, since Hodges’s conviction, our Supreme Court

has highlighted new standards that limit imposing murder 

liability for those who did not kill the victim. (See People v. Clark

(2016) 63 Cal.4th 522, 614 (Clark); People v. Banks (2015) 61 

Cal.4th 788, 807 (Banks).) These standards and the changes to 

murder liability as a result of Senate Bill No. 1437 are factors the 

trial court will have to consider. (People v. Torres (2020) 46 

Cal.App.5th 1168, 1178-1179, review granted June 24, 2020, 

S262011 [jury’s 2001 murder-special-circumstance findings 

against defendant alone do not render defendant automatically

ineligible for section 1170.95 relief because of the changes to 

murder liability made by Senate Bill No. 1437 and the Clark and 

Banks decisions].)

Other Issues

The People claim Hodges is not entitled to section 1170.95 

relief because he could alternatively “be liable as a direct aider

and abettor to malice murder.” The trial court gave an aider and 

abettor jury instruction at Hodges’s trial in 2001. But under 

today’s standards, a jury’s reliance on that particular instruction
10

to find aider and abettor murder liability could amount to 

reversible error. That instruction is not the complete instruction 

that is now required. It omitted relevant language necessary for 

aider and abettor murder liability. The instruction did not 

contain the language that “when a person directly aids and abets 

a murder, the aider and abettor must possess malice 

aforethought.” (People v. Gentile (2020) 10 Cal.5th 830, 844, 

italics added.) “[I]t is certainly not ‘readily ascertainable’ on this 

record that the jury found” Hodges “shared the murderous intent 

of the shooter” using the aider and abettor instruction the trial 

court gave. (People v. Secrease (2021) 63 Cal.App.5th 231, 247.) 

“ ‘[A]bsent a record of conviction that conclusively establishes that 

the petitioner engaged in the requisite acts and had the requisite 

intent, the trial court should not question [the petitioner’s] 

evidence’ ” at the first stage of the section 1170.95 proceeding. 

(People v. Rivera (2021) 62 Cal.App.5th 217, 230.)

Moreover, after Hodges’s trial, Senate Bill No. 1437 

changed the law for murder liability for non-killers and the 

definition of malice. Hodges was convicted at a time when the 

former felony murder rule was applicable. Consistent with that 

former doctrine, his jury was instructed, “Each principal, 

regardless of the extent or manner of participation is equally 

guilty.” (Italics added.) But Senate Bill No. 1437 changed the

doctrine of imputed murder liability for each participant. Hodges 

was also convicted before the Banks and Clark decisions

redefined the standards for imposing murder liability on those 

who are not the actual killers. 

Hodges notes the prosecutor’s theory was not that he was 

an aider and abettor, but rather that he was “the actual shooter,” 

and he notes the “jury rejected that theory.” He claims the 
11

prosecutor failed to present a case for aider and abettor liability.

He suggests that because of the jury’s finding, there is a gap in 

the record about what precisely happened in the back of the 

house which is relevant in determining murder liability under 

Senate Bill No. 1437. That gap may be filled by evidence from 

the parties at an evidentiary hearing following the issuance of an 

order to show cause. But not at the first stage of the section 

1170.95 proceeding. (People v. Rivera, supra, 62 Cal.App.5th at 

p. 230.)

Consequently, here 1) there is a change in the law because 

of Senate Bill No. 1437, 2) there is a gap in the factual record, 3) 

the parties have conflicting views about how the jury reached its 

verdict, and 4) Hodges alleged sufficient facts for section 1170.95 

relief in his petition. Consequently, a trial court given these 

factors may not engage in “factfinding” to deny relief “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).” (People v. Drayton, supra, 47 Cal.App.5th at 

p. 982; see also People v. Tarkington (2020) 49 Cal.App.5th 892, 

898, review granted Aug. 12, 2020, S263219 [trial court must 

“take petitioner’s factual allegations as true,” and, if sufficient,

issue an order to show cause].) 

The People claim Senate Bill No. 1437 was enacted to 

provide relief for defendants convicted of murder where the jury 

was instructed to use the natural and probable consequences 

doctrine. They claim that doctrine was not applied in Hodges’s

case.

But in his section 1170.95 petition, Hodges declared that

the natural and probable consequences doctrine was applied in 

his case. That supported a prima facie showing for an order to 
12

show cause. (People v. Tarkington, supra, 49 Cal.App.5th at 

p. 898; People v. Drayton, supra, 47 Cal.App.5th 965, 982.)

Moreover, the jury was instructed to apply the natural and 

probable consequences doctrine. Jurors were instructed, “[A

[proximate] cause of [death] is an act or omission that sets in 

motion a chain of events that produces as a direct, natural and 

probable consequence of the act or omission the [death] and 

without which the [death] would not have occurred.” (Italics 

added.) 

DISPOSITION

We reverse the order and remand the case to the trial court 

for a new section 1170.95 hearing. 

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

PERREN, J.

TANGEMAN, J.
13

Norman J. Shapiro, Judge

Superior Court County of Los Angeles

______________________________

Janet Gusdorff, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Matthew Rodriguez, Acting Attorney General, Lance E. 

Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Assistant Attorney General, Steven D. Matthews and 

Michael J. Wise, Deputy Attorneys General, for Plaintiff and 

Respondent.