Filed 4/22/21 P. v. Jones 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCUS JONES,

Defendant and Appellant.

 B304692

 (Los Angeles County

 Super. Ct. No.YA037935)

APPEAL from an order of the Superior Court of 

Los Angeles County, Laura C. Ellison, Judge. Reversed and 

remanded with directions.

Tracy Dressner, 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, Assistant 

Attorney General, Charles S. Lee and John Yang, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Appellant Marcus Jones challenges the trial court’s denial 

of his petition for resentencing under Penal Code section 

1170.95.1 We agree that the trial court erred by making factual 

findings prior to issuing an order to show cause (OSC). The 

matter is remanded for issuance of an OSC and further 

proceedings consistent with section 1170.95, subdivision (d). 

Respondent’s request for judicial notice is denied. 

BACKGROUND

I. Underlying Conviction2

A. Prosecution Evidence

On May 23, 1996, an employee of the Park Avenue Market 

in Inglewood saw appellant and his cousin, Melvin Jones 

(Melvin), outside the store. Appellant and Melvin put on facial 

coverings, and Melvin drew a handgun from his pants. As Melvin 

and appellant entered the store, the employee saw Melvin 

holding the gun and appellant walking toward the cash register.

The employee heard something to the effect of, “Okay. This is a . . 

.” before he ran down the street for help. The employee heard a 

1All further statutory references are to the Penal Code 

unless otherwise indicated. 

2Appellant draws his lengthy statement of facts directly 

from the transcripts of his 2000 trial, which are in the appellate 

record, and criticizes respondent’s “bare bones recitation” drawn 

from our prior opinion, People v. Jones (Sept. 25, 2001, B143098) 

[nonpub. opn.], which is also in the appellate record. Because 

both the transcripts and our prior opinion are already in the 

appellate record, respondent’s request for judicial notice of these 

documents and the remainder of the record of appellant’s direct 

appeal is denied. (See People ex rel. Lockyer v. Shamrock Foods

(2000) 24 Cal.4th 415, 422-423, fn. 2.) We note that appellant’s 

recitation of the facts is materially similar to that in our prior 

opinion. We draw our summary from both sources. 
3

single gunshot, then saw appellant and Melvin run from the store 

about 30 seconds later. 

The employee and two police officers who happened to be 

nearby pursued appellant and Melvin. Appellant and Melvin

were apprehended minutes later at the top of a stairwell in an 

apartment complex. They were sweaty and breathing hard, and 

smelled of alcohol, but they did not appear intoxicated. Police 

officers retraced the route appellant and Melvin had taken and 

found a loaded gun, a bandanna and face mask, a glove, and a 

one dollar bill. When appellant was booked at the jail, police 

found two $5 bills in his left pants pocket and two $10 bills and a 

$1 bill in his right. The bills were crumpled. 

The owner of the store, Won Hee Lee, died of a single 

gunshot wound to the head. Stippling marks on the wound 

indicated that the shot was fired from about six inches away.

Forensics testing showed that the gun recovered by the police 

fired the fatal bullet. Both Melvin and appellant were found to 

have particles consistent with gunshot primer on their hands. 

B. Defense Evidence

Appellant testified that he and Melvin were 15 at the time 

of the incident. At school that day, Melvin twice mentioned 

wanting to do something to get money, which appellant 

understood to mean committing theft or robbery. Appellant 

ignored him, as Melvin had never done anything like that.

After school, appellant and Melvin played video games, 

drank vodka, and smoked marijuana. They later obtained and 

shared an additional pint of vodka. Appellant testified that he 

felt dizzy and drunk and vomited twice. 

Melvin pulled a gun from his sock and said he wanted to 

rob Park Avenue Market. Appellant watched Melvin load and 
4

cock the gun. Appellant said he did not want to participate in a 

robbery and tried to talk Melvin out of it. Eventually Melvin said 

he would do it alone and started walking away. Appellant joined 

Melvin, hoping to keep him from getting hurt or hurting anyone 

else. 

When appellant and Melvin reached an alcove outside the 

store, Melvin put on a mask and a glove. Appellant put the glove 

Melvin offered him in his pocket, but tied his basketball

bandanna around his face. Appellant stayed in the doorway of 

the store while Melvin went to the counter. Appellant heard 

Melvin say a couple words and then heard a gunshot; Melvin had 

shot Lee. Melvin reached over the counter and grabbed money 

from the register; appellant, who could not understand how

Melvin could think about money after shooting someone, 

nevertheless accepted the money Melvin handed him, balled it 

up, and put it in his right pocket. 

Appellant ran away from the scene with Melvin. While 

they were running, Melvin asked appellant for his bandanna, 

which appellant removed and handed to him. Appellant and 

Melvin ran to Melvin’s father’s apartment, outside of which they 

were apprehended shortly after they arrived. 

After his arrest, appellant told a psychiatrist, “he ‘did 

something stupid,’ emptying the register and running out.”

Appellant admitted making the statement but said the “he” was 

referring to Melvin. 

C. Conviction and Sentence

Appellant was charged with murder (§ 187, subd. (a)) and 

second degree robbery (§ 211). The information also alleged that 
5

a principal was armed with a handgun (§ 12022, subd. (a)(1)).3

Appellant and Melvin originally were tried together; Melvin was 

convicted of first degree murder, but a mistrial was declared as to 

appellant. At appellant’s retrial, at which the prosecution 

advanced a felony murder theory, the jury found him guilty of 

first degree murder and second degree robbery, and found the 

enhancement true. The court sentenced appellant to 25 years to 

life for the murder and a consecutive term of one year for the 

enhancement; it stayed the sentence on the robbery conviction 

under section 654. We affirmed appellant’s convictions and 

sentence on September 25, 2001. 

Appellant was released from prison on parole in January 

2019. 

II. Section 1170.95 Proceedings

On May 15, 2019, appellant, through counsel, filed a 

petition for resentencing pursuant to section 1170.95. In his 

petition, appellant asserted, inter alia, that a complaint was filed 

against him that permitted the prosecution to proceed under a 

felony murder theory; that he was convicted of first degree 

murder under the felony murder rule; that he could not now be 

convicted of first degree murder; that he was not the actual killer; 

that he did not, with the intent to kill, aid, abet, counsel, 

command, induce, solicit, request, or assist the actual killer in 

the commission of murder; and that he was not a major 

participant in the felony and did not act with reckless 

indifference to human life during the course of the crime. 

3The information further alleged a robbery-murder special 

circumstance (§ 190.2, subd. (a)(17)), but the word “stricken” is 

handwritten next to the allegation, and it does not appear to have 

been pursued at appellant’s trial. 
6

Appellant also stated that this court “specifically found that Mr. 

Jones did not personally kill the victim, that the victim was shot 

by Mr. Jones’s co-defendant, and that Mr. Jones did not want to 

participate in the underlying robbery, tried to dissuade his codefendant, and only accompanied his co-defendant because he 

hoped his presence would prevent anyone from getting hurt.”

“Based on the aforementioned,” appellant asserted that he was 

entitled to resentencing under section 1170.95, subdivision 

(d)(2).4

On July 22, 2019, the trial court granted the prosecution’s 

“second request for extension of time to file informal response”

and continued the matter to October 28, 2019 “for further 

proceedings.”

On October 17, the prosecutor filed a response to the 

petition. As relevant here,5 the prosecution contended that 

appellant failed to prove his eligibility for resentencing because 

he was a major participant who acted with reckless indifference, 

even under the frameworks established by People v. Banks (2015) 

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

4Section 1170.95, subdivision (d)(2) states: “The parties 

may waive a resentencing hearing and stipulate that the 

petitioner is eligible to have his or her murder conviction vacated 

and for resentencing. If there was a prior finding by a court or 

jury that the petitioner did not act with reckless indifference to 

human life or was not a major participant in the felony, the court 

shall vacate the petitioner’s conviction and resentence the 

petitioner.”

5The prosecution also argued that section 1170.95 was 

unconstitutional. The trial court did not rule on this argument, 

which is not at issue in this appeal. 
7

(Clark). The prosecution attached our prior opinion to its brief, 

as well as the transcripts from appellant’s trial. 

On October 23, 2019, the court granted appellant’s request 

for additional time and ordered “petitioner’s hearing” continued 

to January 22, 2020. The prosecution notified the court on 

October 28, 2019 that it was unavailable on January 22, 2020; 

the court continued the matter to January 23, 2020 “for 

argument pursuant to Penal Code section 1170.95” and ordered 

appellant to appear on that date. 

Appellant filed a reply in support of his petition on 

December 20, 2019. The reply included a statement of facts

drawn from exhibits accompanying the petition, including a 

Supreme Court opinion addressing a writ in the matter (People v. 

Superior Court (Jones) (1998) 18 Cal.4th 667); our prior opinion; 

a report documenting a July 3, 1996 psychiatric evaluation; a 

“follow up” police report of the incident; a probation report dated 

July 11, 2000; and a transcript of a surreptitiously recorded 

conversation appellant and Melvin had while in the back of a 

police car on the day of the incident. Several of these documents, 

most notably the transcript, were not admitted at appellant’s 

trial or contained in the record of conviction. Citing section 

1170.95 subdivision (d)(3),6 appellant argued that he was entitled 

6Section 1170.95, subdivision (d)(3) describes the 

procedures the court must follow after issuing an order to show 

cause. Specifically, it provides: “At the hearing to determine 

whether the petitioner is entitled to relief, the burden of proof 

shall be on the prosecution to prove, beyond a reasonable doubt, 

that the petitioner is ineligible for resentencing. If the 

prosecution fails to sustain its burden of proof, the prior 

conviction, and any allegations and enhancements attached to 

the conviction, shall be vacated and the petitioner shall be 
8

to resentencing because “[t]he People failed to prove beyond a

reasonable doubt that Mr. Jones was both a major participant 

and acted with reckless indifference to human life.” Using the 

frameworks established by Banks, supra, 61 Cal.4th 788 and

Clark, supra, 63 Cal.4th 522, appellant further contended that he 

was not a major participant and did not act with reckless 

indifference to human life. 

The court heard the matter on January 23, 2020; appellant 

was present with his counsel. At the hearing, appellant’s counsel 

opened his argument by stating that section 1170.95 “subsection 

(d)(3) clearly puts the burden of proof on the prosecution to prove 

beyond a reasonable doubt that Mr. Jones was both a major 

participant and acting in reckless indifference.” He then reserved 

the remainder of his argument for rebuttal. The prosecutor then 

asserted, “That’s correct, Your Honor,” before arguing that 

appellant was a major participant who acted with reckless 

indifference. During the prosecutor’s argument, the court 

observed that “the facts are obviously everything in this case”

and referred to the transcript appellant submitted with his reply, 

asking, “wasn’t there a surreptitious tape made of them in the 

back of the patrol car?” Appellant responded to the prosecutor’s 

argument by arguing that he was not a major participant and did 

not act with reckless indifference. Appellant notes this several 

times, seemingly implying it is relevant.

After appellant’s argument, the court stated that it “read 

carefully in [sic] great interest the transcript of the conversation 

these two 15 year olds [sic] had in the police car immediately 

resentenced on the remaining charges. The prosecutor and the 

petitioner may rely on the record of conviction or offer new or 

additional evidence to meet their respective burdens.”
9

after this robbery.” It remarked, “if I’m reading [the transcript] 

correctly, [appellant] is lamenting the fact that in this plan 

beforehand, he was urging his cousin to give him the gun. He was 

supposed to have the gun in the first place. That doesn’t sound to 

me factually as if - - well, the words speak for themselves.”

The court then orally denied the motion: “I think that 

factually it’s pretty clear this motion must be denied. Mr. Marcus 

Jones was both a major participant, and he is one who acted with 

complete reckless indifference to human life. He planned this 

crime together with his 15-year-old cousin who was like his 

brother. He robbed the victim together with Melvin Jones. He 

actually took the money. He actually watched as his cousin, 

quote, blasted - - I won’t use the profanities. But he shot the 

victim in the face. And he was well aware and knew that.

Despite that knowledge, he fled together with his cousin. He 

disposed of evidence with his cousin. And again, they fled 

together. They didn’t go separate directions. He didn’t run from 

his cousin as if he was shocked, appalled, upset, afraid of what he 

had done. He was with full knowledge and participation of both 

the preplanning of an armed robbery, participation in a planned 

armed robbery. He fled with him to the same location disposing 

of evidence. He stayed together with him afterwards. He sat in 

the patrol car with him afterwards lamenting their future and 

saying, no matter what we’re in this together. We’re in this 

together for life. They were together the whole way. He was a 

major participant, and he acted with reckless disregard. The 

language and discussion between these two 15-year-old men after 

they had full knowledge they shot a man in the face is disgusting 

and disturbing and shows nothing but the fact that they’re 

hardened, vicious, and violent killers. So the motion is denied. . . 
10

. I will not even be addressing the constitutionality of this 

section at all.”

The minute order entered after the hearing stated that the 

matter had been “called for hearing pursuant to Penal Code 

1170.95(a).” It further stated: “Court finds defendant was a 

major participate [sic] and watch [sic] his cousin shot [sic] the 

victim and both defendant [sic] fled together and disposed of the 

evidence. Defendant Marcus Jones had full knowledge and 

participation of the crime. It was planed [sic] with his cousin and 

he took money. Defendant’s [sic] was reckless and with disregard 

[sic] of the victim. Petition pursuant to Penal Code section 

1170.95(a) denied.”

Appellant timely appealed. 

DISCUSSION 

Appellant raises two issues. First, he contends the trial 

court erred by making factual findings at the prima facie stage of 

the case. Second, he contends the trial court erred in relying on 

evidence outside the record of conviction—the transcript 

appellant provided—to deny his petition. Respondent argues 

both contentions are forfeited due to appellant’s failure to object 

below, and lack merit in any event because the parties 

“effectively skipped the prima facie stage and litigated the case at 

the post-Order-To-Show-Cause evidentiary hearing stage.”

We proceed to the merits of appellant’s first argument, 

conclude that the proceedings were at the prima facie stage, and 

hold that the court accordingly erred by making factual findings 

that appellant was a major participant who acted with reckless 

indifference. We need not and do not address appellant’s second 

argument. 
11

I. Governing Law

In 2018, the Legislature enacted Senate Bill No. 1437 (SB 

1437), the primary purpose of which is to align a person’s 

culpability for murder with his or her own actions and subjective 

intent. (See Stats. 2018, ch. 1015, § 1, subd. (g).) To effectuate 

that purpose, SB 1437 amended sections 188 and 189. As 

amended, section 188, subdivision (a)(3) now provides that “to be 

convicted of murder, a principal in a crime shall act with malice 

aforethought. Malice shall not be imputed to a person based 

solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) 

Section 189 now provides that a participant in qualifying felonies 

during which a death occurs generally will not be liable for 

murder unless (1) he or she was “the actual killer,” (2) he or she, 

“with the intent to kill, aided, abetted, counseled, commanded, 

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

commission of murder in the first degree,” or (3) he or she “was a 

major participant in the underlying felony [who] acted with 

reckless indifference to human life.” (§ 189, subds. (e)(1)-(3).) The 

effect of these changes was to restrict the application of the felony 

murder rule and the natural and probable consequences doctrine 

as applied to murder. (People v. Lamoureux (2019) 42 

Cal.App.5th 241, 248.) “Felony murder and aiding and abetting a 

murder remain crimes, but to be convicted of murder it isn’t 

enough to participate in a felony that results in a death. Now, a 

person so accused must have killed the victim, aided the person 

who did kill the victim with the intent to kill [them], or acted as a 

major participant in the felony with reckless indifference to 

human life.” (People v. Johns (2020) 50 Cal.App.5th 46, 54.)

SB 1437 also added section 1170.95 to the Penal Code. 

Section 1170.95 permits a person convicted of murder on a 
12

charging document that allowed the prosecution to argue felony 

murder or the natural and probable consequences doctrine to 

petition the sentencing court to vacate the conviction and 

resentence on any remaining counts if the person could not be 

convicted of murder under sections 188 and 189 as amended by 

SB 1437. (§ 1170.95, subd. (a).) A petition for relief under section 

1170.95 must include: “(A) A declaration by the petitioner that 

he or she is eligible for relief under this section, based on all the 

requirements of subdivision (a). [¶] (B) The superior court case 

number and year of the petitioner’s conviction. [¶] (C) Whether 

the petitioner requests the appointment of counsel.” (§ 1170.95, 

subd. (b)(1).) If any of this information is missing “and cannot be 

readily ascertained by the court,” the court may deny the petition 

without prejudice. (§ 1170.95, subd. (b)(2).)

If the petition contains the required information, section 

1170.95, subdivision (c) provides that “[t]he 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.” (§ 1170.95, subd. (c).) A petitioner 

makes a prima facie showing if his or her assertions are not 

conclusively refuted by facts in the record as a matter of law. 

(People v. Drayton (2020) 47 Cal.App.5th 965, 968, 980 (Drayton); 

see also People v. Duchine (2021) 60 Cal.App.5th 798 (Duchine); 
13

but see People v. Garcia (2020) 57 Cal.App.5th 100, 116, rev. 

granted Feb. 10, 2021, S265692.)

“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.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 

327 (Verdugo), rev. granted, S260493, Mar. 18, 2020.) If the 

prosecution does not stipulate to vacating the conviction and 

resentencing the petitioner prior to the hearing (§ 1170.95, subd. 

(d)(2)), it then bears the burden of proving “beyond a reasonable 

doubt, that the petitioner is ineligible for resentencing.”

(§ 1170.95, subd. (d)(3).) The prosecution may offer new evidence 

in addition to that within the record of conviction to carry this 

burden; the petitioner similarly may offer new evidence at the 

hearing. (Ibid.) If the prosecution prevails, the petition is 

denied. “If the prosecution fails to sustain its burden of proof, the 

prior conviction, and any allegations and enhancements attached 

to the conviction, shall be vacated and the petitioner shall be 

resentenced on the remaining charges.” (Ibid.)

II. Analysis

The parties disagree about the phase to which the 

proceedings here had progressed. Appellant contends they were 

at the prima facie stage described by section 1170.95, subdivision 

(c), while respondent maintains they had progressed to a “de 

facto post-OSC hearing under section 1170.95, subdivision (d).”

Respondent also contends appellant forfeited this issue and 

“invited the court to make the necessary findings” by “arguing 

directly that appellant was not a substantial participant who 

acted with reckless disregard.”
14

We decline to find forfeiture. Both parties directly and 

extensively argued about whether appellant was a major 

participant who acted with reckless disregard. In accordance 

with the requirements of section 1170.95, subdivisions (a)(3) and 

(b)(1)(A), appellant’s petition asserted that he was not a major 

participant and did not act with reckless disregard for human 

life. The sole substantive argument the prosecution made in 

response was that appellant was a major participant who acted 

with reckless indifference. Appellant would have been remiss 

had he not in reply “argu[ed] directly that appellant was not a 

substantial participant who acted with reckless disregard,”

particularly where the law in the area was (and in many respects 

remains) largely unsettled. Indeed, Drayton, supra, 47 

Cal.App.5th 965 had not yet been decided, and case law in the 

area continues to evolve.

We agree with Drayton and Duchine, supra, 60 Cal.App.5th 

798, that “the prima facie showing the defendant must make is 

that he did not, in fact, act or harbor the mental state required, 

for a murder conviction under current law.” (Duchine, supra, at 

p. 815.) “[W]hen assessing the prima facie showing, the trial 

court should assume all facts stated in the section 1170.95 

petition are true. [Citation.] The trial court should not evaluate 

the credibility of the petition’s assertions, but it need not credit 

actual assertions that are untrue as a matter of law. . . .”

(Drayton, supra, 47 Cal.App.5th at p. 980.) “The record should be 

consulted at the prima facie stage only to determine ‘readily 

ascertainable facts,’ such as the crime of conviction and findings 

on enhancements.” (Duchine, supra, at p. 815.) “[T]he time for 

weighing and balancing and making findings on the ultimate 

issues arises at the evidentiary hearing stage rather than the 
15

prima facie stage, at least where the record is not dispositive on 

the factual issues.” (Ibid.; see also Drayton, supra, 47 

Cal.App.5th at pp. 980-982.)

Both parties appear to accept this framework; respondent 

even acknowledges that appellant’s claim of “improper finding of 

fact” would be “valid . . . if the case had been disposed of at the 

prima facie stage of subdivision (c).” We conclude the case was in 

fact at that stage. 

Appellant filed his petition; the prosecution filed a 

response; and appellant filed a reply. These events track those 

listed in section 1170.95, subdivisions (a), (b), and (c). 

Subdivision (a) permits the filing of a petition; subdivision (b) 

enumerates what the petition “shall include”; and subdivision (c) 

sets forth the procedure for review. “The court shall review the 

petition and determine if the petitioner has made a prima facie 

showing . . . . 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.” (§ 1170.95, subd. (c).)

Once these events have occurred, which they did here, the 

court must determine whether the petitioner has made the prima 

facie showing. (See § 1170.95, subd. (c).) “[S]ubdivision (c) does 

not define the process by which the court is to make this 

threshold determination,” Verdugo, supra, 44 Cal.App.5th at p. 

329, but in practice many courts do so orally after hearing oral 

argument from the parties. The record indicates that is what the 

court did here. A minute order issued October 28, 2019 states 

that the court continued the matter to January 23, 2020 “for 

argument pursuant to Penal Code section 1170.95.” At that 

argument, the court gave no indication that it had already 
16

determined whether appellant had made a prima facie showing. 

It did not issue an OSC. (§ 1170.95, subd. (c).) Instead, it heard 

argument from both parties, during which neither side presented 

additional evidence. The court then made numerous factual 

determinations, issued a minute order stating that the case had 

been called for an “1170.95(a) PC hearing on petn,” and denied 

the petition. The court did not state, either orally or in its 

minute order, that the facts it found had been proven beyond a 

reasonable doubt.

The court at no time gave the parties any indication that 

the matter had advanced to the section 1170.95, subdivision (d) 

stage. Respondent suggests such an indication was unnecessary, 

because appellant “invoked the prosecution burden of proving 

beyond a reasonable doubt his ineligibility for resentencing, a 

subject matter strictly within the realm of a subdivision (d), 

hearing.” This is simply a restatement of the forfeiture 

argument, and we again reject it. Without an OSC or some other

signal from the court, appellant had no way of knowing that the 

“argument” for which he was appearing was in fact the hearing at 

which he would have the opportunity to present additional 

evidence and hold the prosecution to its burden of proof beyond a 

reasonable doubt. Indeed, the prosecution similarly lacked notice 

and may have presented its case differently had it known the 

argument was its final opportunity to address the court. 

As the Drayton court stated: “At this stage of the petition 

review process, governed by section 1170.95(c), the trial court 

should not have engaged in . . . factfinding 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). Further, the Banks test, which governs the 
17

inquiry whether the defendant was a major participant in a 

felony necessarily requires the weighing of facts and drawing 

inferences. [Citation.] The question whether [appellant] acted 

with reckless indifference is a similarly multifaceted inquiry.

[Citation.] In making an assessment of the petitioner’s prima 

facie showing, the trial court should not have evaluated and 

weighed the evidence but instead should have accepted 

petitioner’s asserted facts as true.” (Drayton, supra, 47 

Cal.App.5th at p. 982, footnotes omitted.) 

Appellant’s petition, which was prepared by counsel,

facially met the requirements of section 1170.95, subdivision (b) 

and did not state facts that foreclosed his eligibility for relief as a 

matter of law. He accordingly was entitled to an OSC and a 

hearing that explicitly met the requirements of section 1170.95, 

subdivision (d). The order is reversed and remanded with 

directions to provide appellant with those things. We express no 

opinion as to the merits of appellant’s petition or either party’s 

arguments regarding the substance of the court’s factual 

findings. 

Because we conclude the court erred by making factual 

findings at the prima facie stage, we need not consider the merits 

of appellant’s strained argument that the court committed 

reversible error by considering a document that appellant 

provided.

DISPOSITION

The order denying appellant’s section 1170.95 petition is 

reversed. The matter is remanded with directions to issue an 

order to show cause and proceed consistently with section 

1170.95, subdivision (d). 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
18

COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.