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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 specifie d 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Respo ndent,

v.

ODELL D

. HODGES

,
Defendant and Appellant. 2d Crim. No. B 305465 (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

m urder 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 th e evening of June 6, 2000, Troy Cox, Desmond
Alexander , and a man called “S

- Dog” were ou tside 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. Alex ander and
S

- Dog wanted to know why a man in a blue cap wa s in the
Bloods ’ neighborhood. A fight broke out. Five or 10 minutes
later

, H odges 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

re turned 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 Hodg es 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 ju ry 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 proximate ly caused death to D ESMOND ALEXANDER within the meaning of Penal Code section 12022.53(d) to be NOT
TRUE .” On March 25, 2019, Hodges filed a petition for resentencin g 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 c ourt’s
assessment of the case.” The court: “That being the fact that I don’t believe your client qualifies or is eligible fo r relief under [Senate Bill No. 1437

, section] 1170.95. I will deny your
pet ition.”
DISCUSSION

The Section 1170.95 Petition Hodges contends the trial court erred by summarily denying his section 1170.95 petiti on based on the erroneous assumption that he was the actual shooter. He also contends his
trial couns el provided ineffect ive 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 th e standard for first degree or secon d 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. Antho ny (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 a4

natural and probable consequences theory may file a petiti on with the court th at 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 pe titioner could not b e convicted of first or second degree murder because of changes to Section 188 or 189 made effective
Januar y 1, 2019.” Section 1170.95, subdivision (c) provides: “The court shall review the petition and determine if the petitioner h as made a prima faci e 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 t he 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 make s a prima facie showing that he or she is entitl ed to relief, the co urt shall
issue an order to show cause.” (I talics 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. I f a prima facie showing is made

, the trial court

proc eeds 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), i talics added

. ) “[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resenten cing.” ( Ibid

. ) Courts have held that where the petition is frivolous or the petitioner is categ orically ineligible for section 1170.95 relief, the trial court may summarily dismiss the pet ition

. ( 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 t he Section 1170.95 Process
Here at the first stage of the section 1170.95 proceeding

, the trial court summarily den ie d the petition. I t asked Hodges’ s counsel, “ [ P ] lease correct me if I am wrong on this your client was
the actual shooter.” D efense counsel confirmed that to be the case by stating

, “I would submit on the court’s assessment of the
case.” Based on this re presentation

, the court said, “ T hat being the fact

. . . I don’ t believe your client qualifies

. . . .” ( Italics
added .) But counsel’s representation to the co urt , upon which the court relied, was not accurate. According to a jury finding

, Hodg e s was not the actual kill er. 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 whic h proximately caused death to DESMOND ALEXANDER within the meaning of Penal Code Section 12022.53(d) to be NOT
TRUE.” T his supports Hodges’ s claim that he was not the actual
killer

.6 T he trial court did not consider this jury finding before making its d ecision to summarily deny the petition on the ground that Hodges was the actual killer. Nor did i t 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 b ecause of changes ma de to Penal Code §§ 188 and 1 89, 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 couns el’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 petit ion
on the basis of the false finding th at Hodges was “the a ctu al
killer as a matter of law.” They claim, however, t hat 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 becau se 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 resente ncing. The Legislat ure’s goal was to ensure that defen dants were provided a proceeding consistent with the pri n ciples of fair play and “due process to the petitioner .” ( People v. Duchine (2021) 60 Cal.App. 5th 798, 813.) We are confident the Legislature n ever intended that a first stage section 1170.95 proceeding could be summarily derailed by a patently false factual finding. A fair7

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

. That did not happen here.

Right to Ef

fec tive Assistance o f Counsel at a
Section 1170.95 Hearing Hodges contends he was denied effective assistance of
counsel at the first stage section 1170.95 hearing

. H e claims h is
counsel’s words prejudicially impacted his section 1170.95 petition

. ( Stri ckland 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 P eople claim Hodges “had no S ixth Amendment right

to co unsel” because this was a “post conviction” proceeding. But
counsel was appointed to represent him, and of course he had the right to effective assistance of counsel.
A defen dant’s right to counsel in post

- judgment proceedings
“derives not from th e 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) 5 28 U.S. 152, 155 ; Do uglas 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 t o 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 righ t to resentencing. This was the first stage of the section 1170.958

process, but these proceedings involve very important due process
and statutory rights. This was a critical stage of the criminal proceeding. The appointment of couns el for Hodge s was

ap propriate 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 rec eive
effective assistance of counsel. ( In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.) Hodges was entitled t o representation that could effectively lead to “ a factfinding pro cess affording a degree of due process to the petitioner.” ( People v. Duchine

, supra , 60 Cal.App. 5th at p. 813.) H ere 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.
M oreover, the People’ s claim that counsel’s perfor mance was not prejudicial is in correct. In Hodges’ s section 1170.95 petition

, he declared

, “I was not the actual killer.” The jury finding supports that claim. Counsel did no t conside r that jury finding a nd Hodges’s section 1170.95 verified pet ition allegations.
C ounsel 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,
9 82.) Moreover, in t he 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
Hod ges’ s section 1170.9 5 petition. ( People v. Drayton

, supra , 47 Cal.App. 5th at p. 980 [the verified section 1170.95 petition may9

alone constitute a sufficient prima facie showing under section

1170.95 that would preclude a su mmary 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 de termination about other
factor s that could determi ne whether he was eligible for section
1170.95 relief. W e do not decide those factors because they are initially issue s the trial court must resolve. I n certain cases the trial court may receive additional evidence from the parties to
assist it in decidi ng the petition. (§ 1170.95, subd. (d) (3).) Moreover, s ince 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 ) .) The se 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

- 1 179, 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 ga ve an aider and
abet tor jury instruction at Hodges’ s trial in 2001

. But under today’s standards

, a jury’s rel iance on that particular instruction10

to find aider and abettor murder liability could amount to
reversible error. T h at instruction is not the com plete instru ction
th at is now required

. I t 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 m alice 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 instruc tion 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 qu estion [the petition er’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 change d the law for murder liability for non

- killers and t he
definition of mal ice

. Hodges was convicted at a time when the former felony murder rule was applicable. Consistent with that
former doctrine

, h is jury was instructed, “E ach principal, regardless of the extent or manner of participation is equally guil ty .” (Italics a dded .) B ut Senate Bill No. 1437 changed the
doctrin e 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 n ot the actual killer s. 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 t he “jury rejected that theory.” He claims the11

prosec utor failed to present a case for aider and abettor liabilit y. 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
S enate Bill No. 1437. That gap may be fille d by evidence from

t he 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, h ere 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 tria l court given these factors may no t 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).” ( Peo

ple v. Drayton

, supr a , 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 sh ow cause].)
The P eople 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
d octrine. They claim that doctrine was not applied in Hodges’s

case. B ut i n his s ection 1170.95 petition

, Hodges declared that the natural and probable consequences doctrin e was applied in
his case

. That supported a prima faci e showing for an o rder to12

show cause. ( People v. Tarkington

, supra , 49 Cal.App. 5th at

p. 898; People v. Drayt on , supra , 47 Cal.App. 5th 965, 982.) Moreover, t he jury was instructed to apply the natural and probable conse quences doctrine

. Jurors were instructed, “[A [proximate] cause of [death] is an act or omission that sets in
motion a chain of events that prod uces as a direct, natural and probable consequence of the act or omission the [death] and without which the [de ath] would not have occurred.” ( Italics
added .)
DISPOSITION
We reverse the order and remand the case to the trial court
fo r 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 b y the Court of Appea l, 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 Plaint iff and Respondent.