Filed 8/18/20 P. v. Davis 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.

MICHAEL CHARLES DAVIS,

Defendant and Appellant.

 B297654

 (Los Angeles County

 Super. Ct. No. A086503)

APPEAL from an order of the Superior Court of 

Los Angeles County, Upinder S. Kalra, Judge. Reversed and 

remanded with directions.

Rachel Varnell, 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 Kathy S. Pomerantz, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Michael Charles Davis appeals from a postconviction order 

summarily denying his petition for resentencing filed under 

Penal Code section 1170.951 as to his first degree murder 

conviction (§ 187, subd. (a)). On appeal Davis contends, the 

People concede, and we agree the superior court erred in finding 

Davis ineligible for relief without first appointing counsel to 

represent him, ordering the prosecutor to file a response, and 

allowing Davis (or his attorney) to file a reply. We reverse and 

remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Evidence at Trial

This court described the evidence at trial as follows, 

“Thaddeus Pracki was strangled to death. When discovered in 

the hallway of his apartment, his nude body was face down, his 

head in a pillow, his wrists tied to his ankles behind his back. 

The 62-year-old victim had six broken ribs, four bite marks on his 

right arm and numerous bruises and abrasions. His wallet and 

credit cards were missing. There was no sign of forced entry. 

About 15 hours earlier, he had been with the defendant and 

others at Joly’s, a homosexual bar.” (People v. Davis (1987) 

189 Cal.App.3d 1177, 1183 (Davis I), disapproved of by People v. 

Snow (1987) 44 Cal.3d 216, 225-226.)

1 All further undesignated statutory references are to the 

Penal Code.
3

An hour before Pracki’s body was discovered, Davis and a 

companion attempted to make a purchase using Pracki’s credit

card. Davis also used Pracki’s credit card to purchase gas two, 

three, or four times. Davis’s fingerprint was lifted from a knife 

found at the crime scene. Davis admitted to a friend that “he had 

killed an old gay guy that he and a friend took out of Joly’s with 

the intent to rob.” (Davis I, supra, 89 Cal.App.3d at p. 1183.) 

Davis testified he had arranged for Pracki and a “‘stud’” named 

Shug to get together, then Davis left them and went elsewhere. 

Shug paid Davis for the setup the next day with Pracki’s credit 

card. According to Davis, the knife with his fingerprint was 

taken from a pot of knives located where he was arrested. (Id. at

pp. 1183-1184.)

B. The Information, Verdict, and Sentencing

Davis was charged with first degree murder (§ 187, 

subd. (a)) and robbery (§ 211). The information specially alleged 

the killing occurred in the commission of a robbery (felony 

murder) (§ 190.2, subd. (a)(17)). It also specially alleged the 

murder was intentional and involved the infliction of torture 

within the meaning of section 190.2, subdivision (a)(18). (Davis I, 

supra, 89 Cal.App.3d at p. 1184.) The jury was instructed on 

three theories of first degree murder: (1) willful, deliberate, and 

premeditated murder; (2) felony murder in the perpetration of a 

robbery; and (3) murder by torture. (Ibid.) The jury convicted 

Davis of first degree murder and robbery, but it found the special 

allegations were not true. (Ibid.) The trial court sentenced Davis

on the murder count to 25 years to life and imposed but stayed a 

five-year term for the robbery under section 654. (Id. at p. 1183.)
4

C. Davis’s Appeal

On appeal, Davis argued that because the jury found the 

special allegations of felony murder and murder by torture not 

true, it must have found him guilty of willful, deliberate, and 

premeditated murder, for which there was insufficient evidence. 

(Davis I, supra, 189 Cal.App.3d at p. 1184.) This court rejected 

the argument, explaining for either special circumstance to be 

true, the defendant must intend to kill or aid in the killing. 

Therefore, “the jury might well have found that the killing 

occurred in the commission of a robbery, [or] as a result of acts 

done with the willful, deliberate and premeditated intent to 

torture, i.e., to cause extreme and prolonged physical pain 

[citation], or both, but was not intentional.” (Ibid.) This court 

affirmed. (Id. at p. 1183.)

D. Postconviction Proceedings

On January 17, 2019 Davis, representing himself, filed a 

petition with a supporting declaration in the superior court 

stating he had met the requirements under section 1170.95 for 

relief under Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate 

Bill 1437), including that (1) the information allowed the 

prosecution to proceed under a theory of felony murder or the 

natural and probable consequences doctrine; (2) he was convicted 

of murder based on a theory of felony murder or the natural and 

probable consequences doctrine; and (3) he could not be convicted 

of first or second degree murder under changes to sections 188 

and 189, effective January 1, 2019. With respect to his 

affirmation he could not be convicted of first or second degree 

murder under the 2019 amendments, Davis checked the box on 

the form petition that he was not the actual killer, but he did not 
5

check the box stating he was not a direct aider and abetter who 

acted with the intent to kill, nor did he check the box stating he 

was not a major participant in the felony or did not act with 

reckless indifference to human life. Davis requested the court 

appoint him counsel and vacate his murder conviction.

The People requested the court grant an extension of time 

in which to file an informal response to Davis’s petition. The 

record does not reflect whether the court granted an extension, 

and the People did not file an informal response.

On March 8, 2019 the superior court summarily denied 

Davis’s petition in chambers, finding Davis had not made a prima 

facie showing he fell within the provisions of section 1170.95. 

The court did not appoint counsel for Davis, and Davis and the 

prosecutor were not present. In its written order, the superior 

court found Davis had failed to allege he did not intend to kill, 

and likewise failed to allege he was not a major participant in the 

robbery or did not act with reckless indifference to human life. 

The court concluded from its review of the court file and this 

court’s opinion in Davis I that Davis “cannot make ‘a prima facie 

showing that petitioner falls within the provisions of this 

section.’” The court explained, “Despite Petitioner’s protestations 

to the contrary, the jury rejected Petitioner’s claim that he was 

not the actual killer. In any event, under the facts of this case, 

where the victim, a 62 year old man was hog tied, suffered six 

broken ribs as well as numerous other injuries including bite 

marks and abrasions, coupled with the jury’s finding that 

Petitioner personally inflicted great bodily injury while 

committing robbery, it appears that Petitioner was a major 

participant in the felony, robbery, and acted with reckless 

indifference to human life during the commission of that felony. 
6

The Court of Appeal implicitly made such a ruling when it found 

that there was sufficient evidence to support the conviction.”

DISCUSSION

A. Senate Bill 1437

On September 30, 2018 Senate Bill 1437 (2017-2018 Reg. 

Sess.) was signed into law, effective January 1, 2019. Senate Bill 

1437 was enacted to “amend the felony murder rule and the 

natural and probable consequences doctrine, as it relates to 

murder, to ensure that murder liability is not imposed on a 

person who is not the actual killer, did not act with the intent to 

kill, or was not a major participant in the underlying felony who 

acted with reckless indifference to human life.” (Sen. Bill 1437 

(2017-2018 Reg. Sess.) § 1; see People v. Verdugo (2020) 

44 Cal.App.5th 320, 325 (Verdugo), review granted Mar. 18. 2020, 

S260493; People v. Martinez (2019) 31 Cal.App.5th 719, 723 

(Martinez).)

New section 188, subdivision (a)(3), provides, “Except as 

stated in subdivision (e) of Section 189, in order 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.” Senate Bill 1437 also added section 

189, subdivision (e), which provides, “A participant in the 

perpetration or attempted perpetration of a felony listed in 

subdivision (a) in which a death occurs is liable for murder only if 

one of the following is proven: [¶] (1) The person was the actual 

killer. [¶] (2) The person was not the actual killer, but, with the 

intent to kill, aided, abetted, counseled, commanded, induced, 

solicited, requested, or assisted the actual killer in the 
7

commission of murder in the first degree. [¶] (3) The person was 

a major participant in the underlying felony and acted with 

reckless indifference to human life, as described in subdivision (d) 

of Section 190.2.”

Senate Bill 1437 also provides a procedure in new section 

1170.95 for an individual convicted of felony murder or murder 

under a natural and probable consequences theory to petition the 

sentencing court to vacate the conviction and be resentenced on 

any remaining counts if he or she could not have been convicted 

of murder under Senate Bill 1437’s changes to sections 188 and 

189. (Sen. Bill 1437 (2017-2018 Reg. Sess.) § 4.) Section 1170.95, 

subdivision (b)(1), provides that the petition “shall be filed with 

the court that sentenced the petitioner.”2 The petition must 

include a declaration by the petitioner stating he or she is eligible 

for relief under the section, providing the superior court case 

number and year of the conviction, and indicating whether he or 

she requests the appointment of counsel. (§ 1170.95, 

subd. (b)(1).)

The Legislature intended for there to be a three-step 

evaluation of a section 1170.95 petition. (Verdugo, supra, 

44 Cal.App.5th at pp. 328, 332-333.) As we explained in Verdugo, 

“If any of the required information is missing and cannot be 

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

without prejudice to the filing of another petition and advise the 

petitioner that the matter cannot be considered without the 

missing information.’ (§ 1170.95, subd. (b)(2).) [¶] If the petition 

contains all required information, section 1170.95, 

2 Judge Raymond Choate, who was the sentencing judge

(Davis I, supra, 189 Cal.App.3d 1177), passed away in 2005.
8

subdivision (c), prescribes a two-step process for the court to 

determine if an order to show cause should issue: ‘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 . . . and the petitioner 

may file and serve a reply . . . . 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.’” (Verdugo, at p. 327.)

After issuing an order to show cause, the trial 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 . . . .” (§ 1170.95, 

subd. (d)(1).) If a hearing is held, “[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. (d)(3); see People v. Lewis (2020) 43 Cal.App.5th 1128, 

review granted Mar. 18, 2020, S260598.)3 The prosecution has 

the burden of proving beyond a reasonable doubt that the 

petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)

3 The Supreme Court in People v. Lewis limited briefing and

argument to the following issues: “(1) May superior courts

consider the record of conviction in determining whether a

defendant has made a prima facie showing of eligibility for relief

under Penal Code section 1170.95? (2) When does the right to

appointed counsel arise under Penal Code section 1170.95,

subdivision (c)[?]” (Supreme Ct. Minutes, Mar. 18, 2020, p. 364;

People v. Lewis, supra, 43 Cal.App.5th 1128.)
9

B. The Superior Court Erred in Finding Davis Ineligible for 

Relief Without Appointing Counsel for Davis, Ordering the 

Prosecutor To File a Response, and Allowing Davis To File 

a Reply

Davis contends, the People concede, and we agree the 

superior court erred in finding Davis ineligible for relief under 

section 1170.95 without first appointing counsel for Davis, 

ordering the prosecutor to file a response, and allowing Davis or 

his attorney to file a reply.

To determine as part of the initial inquiry whether a

petitioner is eligible for relief on the basis he or she was convicted 

of first or second degree murder under a charging document that 

permitted the prosecution to proceed under a theory of felony 

murder or murder under the natural and probable consequences 

theory, “the court must at least examine the complaint, 

information or indictment filed against the petitioner; the verdict 

form or factual basis documentation for a negotiated plea; and 

the abstract of judgment.” (Verdugo, supra, 44 Cal.App.5th at

pp. 329-330.) We added, “The record of conviction might also 

include other information that establishes the petitioner is 

ineligible for relief as a matter of law because he or she was 

convicted on a ground that remains valid notwithstanding Senate 

Bill 1437’s amendments to sections 188 and 189 (see § 1170.95, 

subd. (a)(3))—for example, a petitioner who admitted being the 

actual killer as part of a guilty plea or who was found to have 

personally and intentionally discharged a firearm causing great 

bodily injury or death in a single victim homicide within the 

meaning of section 12022.53, subdivision (d).” (Id. at p. 330.)

Davis stated in his declaration he was convicted of murder 

based on the felony murder rule, which could not have supported 
10

a murder conviction under amendments to sections 188 and 189.

4

In addition, the record reflects the jury was instructed on the 

felony murder rule. (Davis I, supra, 189 Cal.App.3d at p. 1184.) 

Unlike in Verdugo, supra, 44 Cal.App.5th at page 333, in which 

the defendant’s conviction of conspiracy to commit murder proved

he had the intent to kill, Davis’s record of conviction does not 

contain a disqualifying factor—the jury could have relied on the 

felony murder doctrine in convicting Davis of murder. 

(Cf. People v. Lewis, supra, 43 Cal.App.5th at p. 1138 [affirming 

denial of § 1170.95 petition where Court of Appeal on direct 

appeal had held “the record established that the jury found 

defendant guilty beyond a reasonable doubt on the theory that he 

directly aided and abetted the perpetrator of the murder”];

People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted 

4 Although Davis did not check the boxes on the form 

petition indicating he did not act with the intent to kill and was 

not a major participant in the felony or act with reckless 

indifference to human life during the course of the felony, the 

form was not a judicial council form, and nowhere in the statute 

does it require a petitioner make these specific statements. 

Rather, to be eligible for relief, the petitioner must meet three 

requirements: “(1) A complaint, information, or indictment was 

filed against the petitioner that allowed the prosecution to 

proceed under a theory of felony murder or murder under the 

natural and probable consequences doctrine. [¶] (2) The 

petitioner was convicted of first degree or second degree murder 

following a trial or accepted a plea offer in lieu of a trial at which 

the petitioner could be convicted for first degree or second degree 

murder. [¶] (3) The petitioner could not be convicted of first or 

second degree murder because of changes to Section 188 or 189 

made effective January 1, 2019.” (§1170.95, subd. (a).) Davis 

declared in the petition he met all three requirements.
11

Mar. 18, 2020, S260410 [affirming denial of § 1170.95 petition 

where jury found the defendant was the actual killer by finding 

true he personally and intentionally used a firearm to commit the 

murder].)

Contrary to the trial court’s ruling, this court did not 

conclude in Davis I that Davis was the actual killer, stating to 

the contrary, “the jury might well have found that the killing 

occurred in the commission of a robbery . . . .” (Davis I, supra, 

89 Cal.App.3d at p. 1184.) Davis therefore made an initial 

showing that he falls within the provisions of the statute. 

Accordingly, before proceeding to the third step of the three-part 

inquiry, the superior court was required to appoint counsel for 

Davis, order the prosecutor to serve a response, and allow Davis 

to file a reply. (Verdugo, supra, 44 Cal.App.5th at p. 327.) Only 

after considering the briefing of the parties should the superior 

court have determined whether Davis had made a prima facie 

showing he is entitled to relief. (Ibid.) Although a finding by the 

superior court that Davis was a major participant in the robbery 

and acted with reckless indifference to human life during the 

commission of the murder would make him ineligible for relief 

under section 1170.95 (see § 189, subd. (e)), the superior court 

erred in making that determination without first appointing 

counsel for Davis and considering the briefing by the parties.

We remand for the superior court to appoint counsel for 

Davis, to order the prosecutor to file a response, and to permit 

Davis to file a reply. If Davis makes a prima facie showing he is 

entitled to relief, the court shall issue an order to show cause and 

conduct a hearing to determine whether to vacate Davis’s murder 

conviction and resentence him on the remaining robbery count. 

(Verdugo, supra, 44 Cal.App.5th at p. 323.)
12

DISPOSITION

We reverse the superior court’s order denying Davis’s 

petition for resentencing and remand for the superior court to 

appoint counsel for Davis, order the prosecutor to file a response 

and to permit Davis to file a reply. If Davis makes a prima facie 

showing he is entitled to relief, the court shall issue an order to 

show cause and conduct a hearing to determine whether to 

vacate Davis’s murder conviction and resentence him on the 

remaining robbery count.

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.