Filed 6/13/24 P. v. Page CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD PAGE,

Defendant and Appellant.

 B329561

 (Los Angeles County

 Super. Ct. No. VA111507)

APPEAL from an order of the Superior Court of 

Los Angeles County, Roger T. Ito, Judge. Affirmed.

Stanley Dale Radtke, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Michael C. Keller and Yun K. Lee, 

Deputy Attorneys General, for Plaintiff and Respondent. 

___________________
2

INTRODUCTION

In 2010, a jury convicted Richard Page of attempted 

murder. In 2022, Page filed a petition for resentencing under 

Penal Code former section 1170.951 (now section 1172.6), alleging 

that he was convicted of attempted murder under the natural 

and probable consequences doctrine and that he could not now be 

convicted under current law. 

On appeal, Page contends the trial court erred because it 

denied his petition at the prima facie stage without reviewing the 

record of conviction. Instead, the trial court based its decision on 

its own memory of the trial and the prosecutor and defense 

attorney’s description of the case. Because the prosecutor did not 

file a response to Page’s petition and neither side presented a 

record of conviction to the trial court, Page asserts that the court 

engaged in impermissible factfinding and deprived him of his due 

process right to an evidentiary hearing.

We conclude that any error in the prima facie procedure 

was harmless. The record of conviction shows the jury was not 

instructed on the natural and probable consequences doctrine. 

Instead, the jury necessarily found Page “intended to kill” the 

victim. Accordingly, Page was ineligible for relief because he was 

convicted on a theory of attempted murder that remains valid. 

We affirm.

1 Statutory references are to the Penal Code.
3

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Page of Attempted Murder and Other 

Criminal Offenses 

Page attacked his ex-wife in 2009 while she was walking 

her dog in the park. Page hit her repeatedly in the head and face 

and tried to suffocate her by placing a plastic bag over her head.2

She lost consciousness several times. Several times when she 

regained consciousness, the bag was tightly covering her head, 

she had trouble breathing, and felt pressure around her neck as if 

Page were holding her down. The last time she regained 

consciousness, she saw Page riding away on a bicycle. A deputy 

sheriff who responded to the scene found a black trash bag in the 

area. The ex-wife spent four days in the hospital. She received 

stitches on her forehead, right eyebrow, and upper lip. Three of 

her teeth were cracked, and one of her thumbs was sprained. She 

later required surgery to raise her left eyebrow because a nerve 

had been damaged in the attack.

In 2010, a jury convicted Page of attempted willful, 

deliberate, and premeditated murder (§§ 664, 187, subd. (a); 

count 1); corporal injury to a spouse, cohabitant, or child’s parent

(§ 273.5, subd. (a); count 2); and disobeying a domestic relations 

court order (§ 273.6, subd. (a); count 3). As to counts 1 and 2, the 

2 We described much of the background of this case in Page’s 

direct appeal. (See People v. Page (Nov. 29, 2011, B229182) 

[nonpub. opn.].) We provide a brief summary here. We do not 

rely on these facts in reaching our conclusion. (See People v. 

Flores (2022) 76 Cal.App.5th 974, 988 [factual summary in prior 

opinion cannot establish ineligibility for resentencing at prima 

facie stage].)
4

jury found the allegations that Page personally used a deadly or 

dangerous weapon, to wit, a plastic bag,

3 (§ 12022, subd. (b)(1)) 

and personally inflicted great bodily injury under circumstances 

involving domestic violence (§ 12022.7, subd. (e)) to be true. 

In November 2010, the court sentenced Page to life with 

the possibility of parole, plus six years in state prison. 

B. The Trial Court Denies Page’s Section 1172.6 Petition 

at the Prima Facie Stage

In May 2022, Page filed a petition for resentencing under 

former section 1170.95. Checking boxes on a form petition, Page

requested appointment of counsel and alleged the People filed an 

information that allowed the prosecution to proceed under a 

theory of attempted murder under the natural and probable 

consequences doctrine, that he was convicted of attempted 

murder following a trial, and that he could not now be convicted 

of attempted murder because of changes to sections 188 and 189. 

At a hearing in July 2022 regarding appointing counsel for 

Page, the court stated, “I am intimately familiar with the facts of 

the case because it was tried before me. Mr. Page was an 

individual who was sort of memorable, but Mr. Page was 

convicted of an attempted, willful, premeditated murder of his 

ex-wife. I think the facts were he put a bag over her head and 

tried to suffocate her, and he was alleging he wasn’t, that she 

misidentified him, but it was his ex-wife. In any event, that’s the 

facts of the case.” At the hearing, the trial court appointed 

3 “A deadly weapon other than a firearm is any object, 

instrument, or weapon . . . that is used in such a way that it is 

capable of causing and likely to cause death or great bodily 

injury.” (CALCRIM No. 875.)
5

counsel for Page. In September 2022, Page filed a “motion to 

disqualify appointed counsel” under People v. Marsden (1970) 

2 Cal.3d 118. 

In February 2023, the trial court held a hearing on Page’s 

petition. The People did not file a response to Page’s petition. 

There was no record of conviction before the trial court beyond 

what the court had in its own file. It is unclear if the trial court 

reviewed any of the documents in its own file before ruling on 

Page’s petition. 

After taking Page’s Marsden motion off calendar as moot 

because Page had waived his presence at the hearing, the trial 

court addressed the petition for resentencing. After confirming 

that the prosecutor and defense counsel were the attorneys who 

tried the case before the court, the court stated that it had “a 

distinct recollection” of Page’s case. The court recounted, “[T]his 

was the incident wherein he put a bag so as to attempt to 

asphyxiate his ex-wife in the park, and this is after having 

committed various acts of vandalism and assault on her 

previously, and his argument was that it was not him, right? She 

was in the park having walked her dog, was sitting there either 

smoking a cigarette or resting on a park bench. She was 

approached from behind by Mr. Page according to the evidence 

presented, was covered—her head was covered by a plastic bag so 

as to asphyxiate her. Mr. Page’s attempt was unsuccessful, and 

that is my recollection of the facts of this case. Either of you 

want to add anything else to that?” 

In response, defense counsel stated, “No, Judge, that is 

correct,” and then went on to recite additional facts of the case. 

Defense counsel stated the victim told law enforcement that Page 

hit her with his fist, twice choked her with a black trash bag, and 
6

battered her. Defense counsel added the victim passed out twice 

and attempted unsuccessfully to fight Page off, and the injuries 

to the victim’s face (pictures of which were shown to the jurors) 

were traumatic. The prosecutor added Page was identified by

DNA evidence from the victim’s blood on Page’s shoes when he 

reported the next day for community service work on a previous 

domestic violence sentence. 

The trial court denied Page’s petition. The court stated 

there was insufficient “prima facie evidence to set it for an order 

to show cause on the . . . 1172.6 petition. This defendant does not 

fall within the purview of that code section. He is the actual 

perpetrator of the attempted murder. That’s what the jury found 

him guilty of, but this court finds for purposes of the prima facie 

determination that there has been . . . an inadequate showing by 

Mr. Page that he is eligible for this relief.” Page timely appealed. 

DISCUSSION

A. Senate Bill 1437 and Section 1172.6

Effective 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) 

(Senate Bill 1437) eliminated the natural and probable 

consequences doctrine as a basis for finding a defendant guilty of 

murder (People v. Reyes (2023) 14 Cal.5th 981, 984) and 

significantly narrowed the scope of the felony-murder rule 

(§§ 188, subd. (a)(3), 189, subd. (e); see People v. Curiel (2023) 

15 Cal.5th 433, 448-449; People v. Strong (2022) 13 Cal.5th 698, 

707-708; People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis)). 

Section 188, subdivision (a)(3), now prohibits imputing malice 

based solely on one’s participation in a crime and requires proof 

of malice to convict a principal of murder, except under the 
7

revised felony-murder rule in section 189, subdivision (e). The 

latter provision now requires the People to prove that the 

defendant was the actual killer (§ 189, subd. (e)(1)); an aider and 

abettor to murder who had the intent to kill (§ 189, subd. (e)(2)); 

or a major participant in an underlying felony listed in section 

189, subdivision (a), who acted with reckless indifference to 

human life as described in subdivision (d) of section 190.2. 

(§ 189, subd. (e)(3); see Curiel, at p. 448; People v. Wilson (2023) 

14 Cal.5th 839, 868-869; Strong, at p. 708.)

With these changes, the Legislature also provided a 

procedure (codified in section 1172.6) for “[a] person convicted of 

felony murder or murder under the natural and probable 

consequences doctrine or other theory under which malice is 

imputed to a person based solely on that person’s participation in 

a crime, attempted murder under the natural and probable 

consequences doctrine, or manslaughter” to petition the superior 

court to vacate the conviction and be resentenced on any 

remaining counts if the petitioner could not now be convicted of 

murder, attempted murder, or manslaughter because of the 

changes to sections 188 and 189. (§ 1172.6, subd. (a); see Sen. 

Bill No. 775 (2021-2022 Reg. Sess.) [extending Senate Bill 1437’s 

ameliorative changes and procedure for potential relief to 

individuals convicted of attempted murder or manslaughter].)

If a section 1172.6 petition contains all the required 

information, the sentencing court must appoint counsel to 

represent the petitioner if requested. (§ 1172.6, subd. (b)(1)(A), 

(b)(3); see also Lewis, supra, 11 Cal.5th at pp. 962-963.) The 

prosecutor must then file a response to the petition, the 

petitioner may file a reply, and the court must hold a hearing to 

determine whether the petitioner has made a prima facie 
8

showing that the petitioner is entitled to relief. (§ 1172.6, 

subd. (c).) If the petitioner makes that showing, the court must 

issue an order to show cause and hold an evidentiary hearing to 

determine whether to vacate the murder, attempted murder, or 

manslaughter conviction and resentence the petitioner on any 

remaining counts. (§ 1172.6, subds. (c) & (d)(1).)

In deciding whether a petitioner has made a prima facie 

showing for relief under section 1172.6, “‘“the court takes 

petitioner’s factual allegations as true and makes a preliminary 

assessment regarding whether the petitioner would be entitled to 

relief if his or her factual allegations were proved. If so, the court 

must issue an order to show cause.”’” (Lewis, supra, 11 Cal.5th at 

p. 971; see People v. Curiel, supra, 15 Cal.5th at p. 460.) The 

court may consider the record of conviction, which will 

“necessarily inform the trial court’s prima facie inquiry under 

section [1172.6], allowing the court to distinguish petitions with 

potential merit from those that are clearly meritless.” (Lewis, at 

p. 971; see Curiel, at pp. 463-464.) “In reviewing any part of the 

record of conviction at this preliminary juncture, a trial court 

should not engage in ‘factfinding involving the weighing of 

evidence or the exercise of discretion.’” (Lewis, at p. 972; 

see People v. Eynon (2021) 68 Cal.App.5th 967, 975.)

“Nevertheless, the court may appropriately deny a petition 

at the prima facie stage if the petitioner is ineligible for relief as a 

matter of law. ‘“[I]f the record, including the court’s own 

documents, ‘contain[s] facts refuting the allegations made in the 

petition,’ then ‘the court is justified in making a credibility 

determination adverse to the petitioner,’”’ thereby deeming the 

petitioner ineligible.” (People v. Harden (2022) 81 Cal.App.5th 

45, 52; see People v. Curiel, supra, 15 Cal.5th at p. 460; Lewis, 
9

supra, 11 Cal.5th at p. 971.) “We review de novo whether the 

trial court conducted a proper inquiry under section 1172.6, 

subdivision (c).” (People v. Williams (2022) 86 Cal.App.5th 

1244, 1251.)

B. Any Errors in the Trial Court Proceedings Were 

Harmless

Page asserts the trial court proceedings denied him 

procedural due process because the court engaged in 

impermissible factfinding and based its decision on its 

recollections and statements from counsel, as opposed to on a 

record of conviction. Page also argues his federal and state 

constitutional rights were violated because “section 1172.6 

creates an entitlement to an evidentiary hearing upon filing of a 

facially valid petition, unless the prosecutor presented 

information from the record of conviction that establishes 

appellant was ineligible as a matter of law.” Because the 

prosecutor did not file a response to Page’s petition, and therefore 

did not demonstrate ineligibility, Page argues the proceedings 

violated his procedural due process rights. 

We agree there were errors in the process in the trial court. 

For example, upon the filing of a facially valid section 1172.6 

petition, the sentencing court must appoint counsel to represent 

the petitioner if requested. (§ 1172.6, subd. (b)(1)(A), (b)(3); see 

also Lewis, supra, 11 Cal.5th at pp. 962-963.) The prosecutor 

must then file a response to the petition, the petitioner may file a 

reply, and the court must hold a hearing to determine whether 

the petitioner has made a prima facie showing that the petitioner

is entitled to relief. (§ 1172.6, subd. (c).) But the prosecutor here 

failed to file a response brief, contrary to the procedure outlined 
10

by the statute. (See ibid. [“Within 60 days after service of a 

petition that meets the requirements set forth in subdivision (b), 

the prosecutor shall file and serve a response”], italics added.) 

Any errors in the procedure in the trial court, however,

were harmless. Page is ineligible for relief as a matter of law. 

1. The procedural errors were not state or federal 

constitutional violations

Page argues because the proceedings violated his 

constitutional rights, the errors in the trial court are reversible 

per se and not subject to the harmless error doctrine. We 

disagree. “In some contexts, a court’s failure to comply with a 

statutory procedure will constitute a denial of due process.” 

(People v. Hurtado (2023) 89 Cal.App.5th 887, 892.) “But a trial 

court’s statutory omissions at the first step of the section 1172.6 

process are not state or federal constitutional violations.” (Ibid.) 

In Lewis, the California Supreme Court rejected the 

defendant’s argument that “a trial court’s ‘consideration of the 

record of conviction in connection with a section [1172.6] petition 

is a “critical stage” of the criminal process’ such that the 

deprivation of counsel during such consideration, whether viewed 

as a state statutory violation or as a federal or state 

constitutional violation, is structural error requiring automatic 

reversal.” (Lewis, supra, 11 Cal.5th at p. 972.) The court held, 

“There is no unconditional state or federal constitutional right to 

counsel to pursue collateral relief from a judgment of conviction.” 

(Ibid.) At the outset of the section 1172.6 petitioning process, 

“the petitioner has not yet ‘stated facts sufficient to satisfy the 

court that a hearing is required,’ but merely endeavors to do so.” 

(Lewis, at p. 973.) Because the failure to appoint counsel was 
11

state law error only, the court applied the People v. Watson (1956) 

46 Cal.2d 818 harmless error test. (Lewis, at p. 973.)

Page attempts to distinguish Lewis because Lewis

addressed the appointment of counsel, whereas he complains 

about the absence of a record of conviction and the prosecutor’s 

failure to establish his ineligibility for relief. We do not read 

Lewis’s holding as applicable only to the failure to appoint

counsel. We agree with other courts that have held it applies to 

errors in the statutory procedure at the outset of the 

section 1172.6 petitioning process. (See People v. Bratton (2023) 

95 Cal.App.5th 1100, 1104-1105 [trial court’s reliance on facts 

stated in an appellate opinion was harmless where the record 

demonstrated the defendant was the actual shooter who acted 

with intent to kill and was not convicted under the natural and 

probable consequences doctrine or any other theory of imputed 

malice]; People v. Hurtado, supra, 89 Cal.App.5th at p. 892 

[analyzing the Legislature’s treatment of Lewis, and applying its 

reasoning to find the failure to appoint counsel, set a briefing 

schedule, or hold a hearing before deciding the defendant did not 

make a prima facie showing for resentencing were not 

constitutional errors and were subject to harmless error review]; 

People v. Flint (2022) 75 Cal.App.5th 607, 613 [“‘a petitioner 

“whose petition is denied before an order to show cause issues 

has the burden of showing ‘it is reasonably probable that if [not 

for the error] . . . his [or her] petition would not have been 

summarily denied without an evidentiary hearing”””]; cf. People 

v. Gamache (2010) 48 Cal.4th 347, 396 [“structural errors not 

susceptible to harmless error analysis are those that go to the 

very construction of the trial mechanism—a biased judge, total 
12

absence of counsel, the failure of a jury to reach any verdict on an 

essential element”].) 

2. Any error was harmless because Page was 

ineligible for relief as a matter of law

The record of conviction shows any error was harmless 

because Page was ineligible for relief as a matter of law. We have 

reviewed the relevant record of conviction, including the charging 

document, the jury instructions, and the verdict minute order.4

(See Lewis, supra, 11 Cal.5th at pp. 971-972 [examining the 

record, including the court’s own documents, “allow[s] the court 

to distinguish petitions with potential merit from those that are 

clearly meritless”]; People v. Jenkins (2021) 70 Cal.App.5th 924, 

935 [record of conviction includes “the charging document, verdict 

forms, closing arguments, and jury instructions”].)

The record of conviction establishes that the trial court 

instructed the jury with CALCRIM Nos. 600 (on attempted 

murder) and 601 (on the allegation the attempted murder was 

willful, deliberate, and premeditated). CALCRIM No. 600 stated 

that in order to find Page guilty of attempted murder, the People 

must prove that Page “intended to kill.” CALCRIM No. 601

detailed, “The defendant acted willfully if he intended to kill 

when he acted. The defendant deliberated if he carefully weighed 

the considerations for and against his choice and, knowing the 

consequences, decided to kill. The defendant premeditated if he 

decided to kill before acting.” 

4 As part of this appeal, the People sought judicial notice of 

the jury instructions the trial court gave in Page’s case, which we 

granted.
13

The trial court did not instruct the jury on the natural and 

probable consequences doctrine, aiding and abetting principles, 

or any other theory of imputed malice. Page is therefore

ineligible for relief because he was convicted on a theory of 

attempted murder that remains valid after the amendments to

sections 188 and 189. (See People v. Strong, supra, 13 Cal.5th 

698 at p. 708 [“If the petition and record in the case establish 

conclusively that the defendant is ineligible for relief, the trial 

court may dismiss the petition”]; People v. Harden, supra,

81 Cal.App.5th at p. 52 [“if the record shows that the jury was not 

instructed on either the natural and probable consequences or 

felony-murder doctrines, then the petitioner is ineligible for relief 

as a matter of law”]; People v. Coley (2022) 77 Cal.App.5th 539, 

548 [section 1172.6 “applies by its terms only to attempted 

murders based on the natural and probable consequences 

doctrine”]; People v. Cortes (2022) 75 Cal.App.5th 198, 205 [“As 

Cortes concedes, the jury was not instructed on any theory of 

liability for murder or attempted murder that required that 

malice be imputed to him. He is therefore ineligible for 

resentencing”].)

Page argues we should disregard the records the People 

sought judicial notice of on appeal because we would usurp the 

trial court’s role as factfinder. We disagree. A denial at the 

prima facie stage is appropriate only if the record of conviction 

demonstrates the petitioner is ineligible for relief as a matter of 

law, which is “‘a purely legal conclusion.’” (People v. Ervin (2021) 

72 Cal.App.5th 90, 101; see also People v. Harden, supra, 

81 Cal.App.5th at p. 52.) 

In sum, although there were errors in the proceedings at 

the prima facie stage, we conclude the errors were harmless 
14

because Page was ineligible for relief as a matter of law under 

section 1172.6.

DISPOSITION

The order denying Page’s petition for resentencing under

section 1172.6 is affirmed. 

RAPHAEL, J.*

We concur:

SEGAL, Acting P. J.

FEUER, J.

* Judge of the San Bernardino County Superior Court, 

assigned by the Chief Justice under article VI, section 6 of the 

California Constitution.