Filed 7/2/21 P. v. Simms CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ERNEST SIMMS et al.,

Defendants and Appellants.

B304577

(Los Angeles County

Super. Ct. No. BA050222)

APPEALS from orders of the Superior Court of Los Angeles 

County. Victor D. Martinez, Judge. Reversed and remanded 

with directions.

Emry J. Allen, under appointment by the Court of Appeal, 

for Defendant and Appellant Simms.

Leonard J. Klaif, under appointment by the Court of 

Appeal, for Defendant and Appellant Hill.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Charles S. Lee and Amanda V. 

Lopez, Deputy Attorneys General, for Plaintiff and Respondent.
2

Ernest Simms and Brian Hill appeal the summary denial of 

their petitions for resentencing under Penal Code1 section 

1170.95. Appellants maintain that because they made a prima 

facie showing that they are entitled to relief under the statute,

the superior court was obligated to issue an order to show cause 

pursuant to section 1170.95, subdivision (c), and conduct an 

evidentiary hearing in accordance with subdivision (d). Instead, 

the superior court improperly engaged in fact finding based on 

this court’s prior opinion in the direct appeal to determine that 

appellants were major participants in the underlying felonies 

who acted with reckless indifference to human life and were thus 

ineligible for resentencing as a matter of law. We agree that the 

superior court erred to the extent it relied upon the prior 

appellate opinion to make its own findings of fact at the prima 

facie review stage under section 1170.95, subdivision (c).

The error is not harmless. Having taken judicial notice of 

the trial record and reviewed the jury’s verdict forms and jury 

instructions, we conclude the record of conviction does not 

demonstrate appellants are ineligible for relief as a matter of law. 

We therefore remand the matter to the superior court for further 

proceedings, including the issuance of an order to show cause and

an evidentiary hearing in accordance with section 1170.95, 

subdivision (d).

2

1 Undesignated statutory references are to the Penal Code.

2 In remanding this matter to the superior court for 

proceedings in accordance with section 1170.95, subdivision (d), 

“[w]e express no opinion about [appellants’] ultimate entitlement 

to relief following the hearing.” (People v. Drayton (2020) 47 

Cal.App.5th 965, 983 (Drayton).)
3

FACTUAL AND PROCEDURAL BACKGROUND

A. The murder of Randy Burge3

On February 22, 1990, around 2:00 p.m., Simms 

approached Kevin Thomas, who was in his car stopped in traffic. 

Simms put a .25 or .32 caliber revolver to the back of Thomas’s 

head and ordered him out of the car. Simms then escorted 

Thomas at gunpoint to a nearby residence, where they were met 

at the back door by codefendant Clifford Jenkins, who also 

pointed a .25 or .32 caliber revolver at Thomas’s head. Jenkins 

handcuffed Thomas and wrapped tape around his mouth before 

leaving the house. Jenkins returned moments later holding

Randy Burge⎯a witness to Thomas’s kidnapping⎯at gunpoint. 

Simms told Burge he was “ ‘at the wrong place at the wrong 

time.’ ” (Simms, supra, B074209.)

Hill and codefendant Freddie Doss then entered the house 

carrying guns: Hill’s was a .25 or .32 caliber revolver and Doss 

held a .38 caliber revolver. Simms and Jenkins forced Thomas to 

call his mother to demand a $10,000 ransom. After the call, 

Jenkins took a ring, keys, and approximately $30 in cash from 

Thomas. Burge began asking the men why he was being held. 

Simms pointed his gun at Burge and told him to shut up. But 

Burge persisted in asking questions and making noise until

Simms shot him in the foot. (Simms, supra, B074209.)

3 The statement of facts is drawn from this court’s decision 

filed on January 11, 1996, in appellants’ direct appeal from their 

convictions. (People v. Ernest Simms et al. (Jan. 11, 1996, 

B074209) [nonpub. opn.] (Simms); People v. Cruz (2017) 15 

Cal.App.5th 1105, 1110 [appellate opinion is part of the record of 

conviction].)
4

At some point, Simms and Jenkins left the house to secure 

the ransom money while Hill and Doss remained guarding

Thomas and Burge at gunpoint. Fearing he was going to be 

killed, Thomas threw himself through a closed glass window. He 

landed on his back in the driveway and the handcuffs broke. Hill 

and Doss fired at least eight to ten shots at Thomas as he ran

down the street. Thomas ducked into a store and hid while a 

store employee called the police. (Simms, supra, B074209.)

Around 9:44 p.m. police located Simms and Jenkins near 

the house where Thomas and Burge had been held. Both men 

fled and were captured by police a short time later. (Simms, 

supra, B074209.)

That night around 9:00 p.m. a witness heard a single 

gunshot from Centinela Park in Inglewood, approximately 3.9 

miles from the residence where Burge and Thomas had been 

held. The next morning a jogger discovered Burge’s body 

facedown in the park. His hands were handcuffed behind his 

back and a rolled-up T-shirt was stuffed in his mouth. Burge had 

been fatally shot execution-style with a single round from a .38 

caliber firearm, resulting in a contact wound to his head behind 

the ear. He had also suffered a gunshot wound to his foot from a 

.22 caliber handgun. The coroner estimated the time of death 

between 8:00 and 9:00 p.m. on February 22, 1990. (Simms, 

supra, B074209.)

B. Relevant proceedings

Following a jury trial, Simms and Hill (along with 

codefendants Jenkins and Doss) were convicted of the first degree 

murder of Randy Burge (§ 187, subd. (a); count I), among other 
5

offenses.4 The jury also found true two special circumstance 

allegations against Hill (as well as Doss) that the murder was 

committed during the commission of a robbery, a kidnapping, and 

a kidnapping for ransom. (§ 190.2, subd. (a)(17).) (Simms, supra, 

B074209.) At sentencing, the trial court struck the special 

circumstance findings, stating its intent to sentence all of the 

defendants identically. The court sentenced Simms and Hill to a 

term of 25 years to life for the first degree murder of Burge, plus 

a consecutive term of four years for the personal firearm use 

enhancement, for a principal term of 29 years to life.5 (Simms, 

supra, B074209.) This court affirmed the judgments of conviction 

in an unpublished opinion filed January 11, 1996. (Simms, 

supra, B074209.)

Hill and Simms filed petitions for resentencing under 

section 1170.95 on March 11, 2019, and July 11, 2019, 

4 Appellants were also convicted of the kidnapping of Burge 

for robbery (§ 209, subd. (b); count II), the kidnapping of Thomas 

for ransom (§ 209, subd. (a); count III), conspiracy to commit the 

crime of kidnapping for ransom of Thomas, with true findings on 

five of the alleged overt acts (§§ 182/209, subd. (a); count IV), the 

robbery of Thomas (§ 211, subd. (a); count V), and the attempted 

willful, deliberate, and premeditated murder of Thomas 

(§§ 664/187, subd. (a); count VI). The jury found true the 

personal use of a firearm allegation as to all defendants on counts 

I through VI. (Simms, supra, B074209.)

5 Appellants’ sentences also included a consecutive 

subordinate term of life with the possibility of parole for the 

attempted murder of Thomas (count VI), and stayed sentences 

under section 654 of life with the possibility of parole for the two 

kidnapping charges and the conspiracy to commit kidnapping 

charge. (Simms, supra, B074209.)
6

respectively. The superior court appointed counsel, and the 

district attorney filed opposition to both petitions. On 

January 28, 2020, the parties submitted on the briefs, and the 

superior court denied the petitions without issuing an order to 

show cause. Relying on this court’s prior opinion in the direct 

appeal and the People’s opposition, the superior court summarily 

denied the petitions on the ground that Hill and Simms were 

major participants who acted with reckless disregard for human 

life, and they had therefore failed to state a prima facie case for 

relief under section 1170.95, subdivision (c).

DISCUSSION

The Superior Court Summarily Denied 

Appellants’ Section 1170.95 Petitions in Error

A. Applicable law

The Legislature enacted Senate Bill No. 1437 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.” (Stats. 2018, ch. 1015, § 1, subd. (f); 

People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile); People v. 

Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).)

With one narrow exception (where the victim was a peace 

officer killed in the performance of duty and the defendant knew 

or reasonably should have known that fact (§ 1170.95, subd. (f)), 

“Senate Bill 1437 effectively eliminates murder convictions 

premised on any theory of vicarious liability—that is, any theory 

by which a person can be convicted of murder for a killing 

committed by someone else (such as the felony-murder theory or 
7

the natural and probable consequences theory)—unless the 

People also prove that the nonkiller defendant personally acted 

with the intent to kill or was a major participant who acted with 

reckless disregard to human life.” (People v. Fortman (2021) 64 

Cal.App.5th 217, 222–223 (Fortman); § 188, subd. (a)(3)

[amending natural and probable consequences doctrine to require 

that all principals act with express or implied malice to be 

convicted of murder (with the exception of felony murder under 

§ 189, subd. (e)]; § 189, subd. (e) [requiring that participant in 

specified felony during which a death occurs may be convicted of 

murder only if he/she was the actual killer, an aider and abettor 

who acted with intent to kill, or a major participant in the 

underlying felony who acted with reckless indifference to human 

life]; Gentile, supra, 10 Cal.5th at pp. 842–843.)

Senate Bill No. 1437 also added section 1170.95 to provide 

a procedure by which those convicted of felony murder or murder 

under a natural and probable consequences theory may seek 

retroactive relief if they could no longer be convicted of murder 

because of the changes to sections 188 or 189. (Gentile, supra, 10 

Cal.5th at p. 843; Fortman, supra, 64 Cal.App.5th at p. 223;

Martinez, supra, 31 Cal.App.5th at pp. 722–723.)

Subdivision (a) of section 1170.95 sets forth the three 

conditions for eligibility for relief.

6 Subdivision (b) in turn 

6 Those conditions are: (1) the charging document “allowed 

the prosecution to proceed under a theory of felony murder or 

murder under the natural and probable consequences doctrine”; 

(2) “petitioner was convicted of first or second degree murder”; 

and (3) “petitioner could not be convicted of first or second degree 

murder because of changes to Section 188 or 189 made effective 
8

“describes where and how the petition must be filed and specifies 

its required content,” including a declaration by the petitioner 

that he or she “is eligible for relief according to the criteria set 

out in subdivision (a).” (Drayton, supra, 47 Cal.App.5th at 

p. 973.) If a petition for resentencing under section 1170.95 

meets the requirements of subdivisions (a) and (b), the superior 

court conducts the analysis prescribed in subdivision (c) before 

issuing an order to show cause.7 (Drayton, at pp. 974–975; People 

v. Verdugo (2020) 44 Cal.App.5th 320, 327–328, review granted 

Mar. 18, 2020, S260493 (Verdugo); People v. Lewis (2020) 43 

Cal.App.5th 1128, 1136, 1140, review granted Mar. 18, 2020, 

S260598 (Lewis).) At this initial stage, the superior court may 

examine readily ascertainable information in the record of 

conviction as it conducts a preliminary screening of the petition 

to verify the petitioner’s eligibility for relief under the statute. 

(Lewis, at p. 1140, rev.gr.; Verdugo, at p. 329, rev.gr.; People v. 

Offley (2020) 48 Cal.App.5th 588, 597; People v. Edwards (2020) 

48 Cal.App.5th 666, 674–675, review granted July 8, 2020, 

January 1, 2019.” (§ 1170.95, subd. (a); Drayton, supra, 47 

Cal.App.5th at p. 973.)

7 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.”
9

S262481; People v. Tarkington (2020) 49 Cal.App.5th 892, 900, 

review granted Aug. 12, 2020, S263219.)

If the initial screening of the record of conviction does not 

indicate ineligibility as a matter of law, the superior court must 

appoint counsel (if requested) and accept briefing from the 

parties on the issue of whether the petitioner is “ ‘entitled to 

relief.’ ” (Drayton, supra, 47 Cal.App.5th at p. 976; Verdugo, 

supra, 44 Cal.App.5th at pp. 332–333, rev.gr.) At this stage, with 

the benefit of the parties’ briefing, the superior court may conduct 

a more thorough review of the record, including the jury 

instructions, verdict form(s), and any special findings or 

enhancement allegations the jury found true to determine if the 

petition makes a prima facie showing of entitlement to relief. 

(People v. Duchine (2021) 60 Cal.App.5th 798, 815 (Duchine); 

People v. Gomez (2020) 52 Cal.App.5th 1, 16, review granted 

Oct. 14, 2020, S264033; see Verdugo, at pp. 335–336, rev.gr.)

In conducting its prima facie review under section 1170.95, 

subdivision (c), however, the superior court does not engage in 

factfinding. Rather, the court must “assume all facts stated in 

the section 1170.95 petition are true” (Drayton, supra, 47 

Cal.App.5th at p. 980) and draw “all factual inferences in favor of 

the petitioner” (Verdugo, supra, 44 Cal.App.5th at p. 329, rev.gr.; 

Drayton, at pp. 968, 982). The superior court’s authority to make 

determinations without issuing an order to show cause and 

proceeding in accordance with section 1170.95, subdivision (d) is 

thus circumscribed by “readily ascertainable facts from the record 

(such as the crime of conviction), rather than factfinding 

involving the weighing of evidence or the exercise of discretion 

(such as determining whether the petitioner showed reckless 
10

indifference to human life in the commission of the crime).” 

(Drayton, at p. 980; Duchine, supra, 60 Cal.App.5th at p. 813.)

If, after the parties’ briefing, the petitioner has made a 

prima facie showing that he is entitled to relief because there 

remains no proof of ineligibility as a matter of law, “the court 

shall issue an order to show cause” why relief should not be 

granted. (§ 1170.95, subd. (c), italics added; Drayton, supra, 47 

Cal.App.5th at p. 980; see Aguilar v. Atlantic Richfield Co. (2001) 

25 Cal.4th 826, 851 [“A prima facie showing is one that is 

sufficient to support the position of the party in question”]; In re 

Edward H. (1996) 43 Cal.App.4th 584, 593 [“A ‘prima facie’ 

showing refers to those facts which will sustain a favorable 

decision if the evidence submitted in support of the allegations by 

the petitioner is credited”].) However, “true factfinding should be 

reserved and exercised only after an order to show cause is issued 

and the parties are permitted to supplement the record with new 

evidence, including, if requested, through an evidentiary hearing”

(Duchine, supra, 60 Cal.App.5th at p. 815) at which it is the 

prosecution’s burden to prove, beyond a reasonable doubt, that 

the petitioner is ineligible for resentencing (§ 1170.95, subd. 

(d)(3); Drayton, supra, 47 Cal.App.5th at p. 981).

B. The record of conviction does not establish

appellants’ ineligibility for relief under section 1170.95 as 

a matter of law8

Appellants alleged facts sufficient to state a prima facie 

case entitling them to relief, and the superior court erred in 

8 We have previously held that a superior court may deny a 

section 1170.95 petition after the prima facie review on the 
11

making its own findings of fact at the prima facie review stage of 

the section 1170.95 proceeding without issuing an order to show 

cause and conducting an evidentiary hearing. Specifically, the 

superior court relied on the prior appellate opinion to conclude 

ground that a defendant convicted of murder with a felonymurder special-circumstance finding (§ 190.2, subd. (a)(17)) is 

ineligible as a matter of law for resentencing under section 

1170.95. (People v. Nunez (2020) 57 Cal.App.5th 78, review 

granted Jan. 13, 2021, S265918.) The rationale for our holding in 

Nunez lay in the instructions to the jury that in order to find the 

felony-murder special-circumstance allegation true, the jury had 

to find beyond a reasonable doubt that the defendant intended to 

kill or was a major participant in the underlying felony who acted 

with reckless indifference to human life. (Nunez, at p. 91.)

In Hill’s case, the jury found true two special-circumstance 

allegations under section 190.2, subdivision (a)(17), and although 

the trial court struck the special-circumstance findings for 

purposes of sentencing, the court’s action did not abrogate the 

jury’s findings. (See People v. Brooks (2017) 3 Cal.5th 1, 120

[facts underlying a vacated special-circumstance finding remain

circumstances of the crime of which defendant was convicted].) 

Our holding in Nunez would therefore ordinarily preclude Hill 

from making the requisite eligibility showing as a matter of law. 

However, the jury instructions given in this case did not⎯as a 

condition to finding the special-circumstance allegations 

true⎯require the jury to find Hill had the intent to kill or was a 

major participant in the underlying felonies who acted with 

reckless indifference to human life. Accordingly, the jury’s 

special-circumstance findings do not constitute a unanimous jury 

finding beyond a reasonable doubt that Hill intended to kill or 

was a major participant who acted with reckless indifference to 

human life. In the absence of such a jury finding, Hill’s special 

circumstances do not, as a matter of law, bar relief under section 

1170.95.
12

that appellants are ineligible for relief as major participants in 

the underlying crimes who acted with reckless indifference to 

human life. As the Duchine and Drayton courts observed, 

however, “[t]he major participant and reckless indifference 

findings the trial court made based solely on the record evidence 

entail the weighing of evidence, drawing of inferences, and 

assessment of credibility that should be left to the factfinding 

hearing process contemplated by section 1170.95, 

subdivision (d).” (Duchine, supra, 60 Cal.App.5th at p. 816; 

Drayton, supra, 47 Cal.App.5th at p. 982.) At the prima facie 

review stage of a section 1170.95 proceeding, such judicial 

factfinding is prohibited.

The error is not harmless because the record of conviction 

does not establish appellants’ ineligibility for relief under section 

1170.95 as a matter of law. The Attorney General resists this 

conclusion by asserting that appellants’ first degree murder 

convictions were not based on a felony-murder theory or the 

doctrine of natural and probable consequences at all, but on the 

theory that they and their codefendants acted with actual malice. 

In support of the contention, respondent points to the prior 

appellate decision, which in turn relied on the jury’s preprinted 

general verdict forms9 to declare that “the jury convicted each 

appellant of willful, premeditated and deliberate first degree 

murder.” (Simms, supra, B074209.) However, because the 

presence of the “willful, deliberate, and premeditated” language 

9 The preprinted verdict forms stated that the jury found 

“the Defendant [Simms/Jenkins/Doss/Hill] guilty of the crime of 

the WILLFUL, DELIBERATE, AND PREMEDITATED 

MURDER OF RANDY BURGE.”
13

on the preprinted general verdict form does not represent an 

actual finding by the jury that appellants committed willful, 

deliberate, and premeditated murder, it does not establish the 

jury’s rejection of felony murder or natural and probable 

consequences as the theory underlying appellants’ first degree 

murder convictions. In short, the record of conviction does not 

eliminate the possibility that the jury found appellants guilty of 

first degree murder under a felony-murder or natural and 

probable consequences theory, and thus does not “ ‘show as a 

matter of law that [appellants are] not eligible for relief.’ ” 

(Lewis, supra, 43 Cal.App.5th at p. 1138, italics added.)

The language on a verdict form is to be “ ‘ “ ‘construed in

light of the issues submitted to the jury and the instructions of 

the court,’ ” ’ ” and is not always dispositive of the jury’s findings. 

(People v. Camacho (2009) 171 Cal.App.4th 1269, 1272, quoting 

People v. Jones (1997) 58 Cal.App.4th 693, 710.) The jury in this 

case was instructed it could convict the defendants of first degree 

murder on the theories of willful, deliberate, premeditated 

murder, felony murder, or under the doctrine of natural and 

probable consequences.10 In argument to the jury the prosecutor 

10 Specifically, the trial court instructed the jury on aider 

and abettor liability for murder based on natural and probable 

consequences (CALJIC No. 3.02), coconspirator liability for 

murder based on natural and probable consequences (CALJIC 

No. 6.11 (1991 rev.)), murder based on the unlawful killing of a 

human being with malice aforethought or during the commission 

or attempted commission of a robbery (CALJIC No. 8.10), willful, 

deliberate, and premeditated murder (CALJIC No. 8.20), first 

degree felony murder⎯robbery (CALJIC No. 8.21), first degree 

felony murder in pursuance of a conspiracy (CALJIC No. 8.26), 
14

explained that the defendants were guilty of the first degree 

murder of Randy Burge pursuant to any one of four different 

theories: (1) willful, deliberate, and premeditated murder; 

(2) robbery felony murder, including murder liability for an aider 

and abettor to the robbery and/or for a coconspirator in the 

robbery; (3) murder liability for an aider and abettor to a 

kidnapping if the murder was a natural and probable 

consequence of the kidnapping; and (4) murder liability for a 

coconspirator in the conspiracy to kidnap Thomas if a natural 

and probable consequence of the conspiracy was the killing of a 

witness.

The prosecutor emphasized that although a verdict of first 

degree murder had to be unanimous, unanimity as to which

theory applied was not necessary for a conviction. This is correct. 

As our Supreme Court has explained, “premeditated murder and 

felony murder are not different crimes, but are instead alternate 

mechanisms of determining liability. Accordingly, ‘as long as 

each juror is convinced beyond a reasonable doubt that defendant 

is guilty of murder as that offense is defined by statute, it need

not decide unanimously by which theory he is guilty.’ ” (People v. 

Scully (2021) 11 Cal.5th 542, 598.) Here, the preprinted general 

verdict form by which the jury convicted appellants of first degree 

murder included one of four theories of guilt which some, all, or 

none of the jurors may have accepted as the basis for the 

conviction.

This is not a case where the jury was given several 

different guilty verdict forms, each stating a distinct theory of

and first degree felony murder liability of aider and abettor to a 

robbery (CALJIC No. 8.27).
15

first degree murder—one theory being willful, deliberate, and 

premeditated murder, and others presenting the vicarious 

liability theories of felony murder and natural and probable 

consequences—that would allow us to infer the basis for the

jury’s guilty verdict from its choice of one verdict form over the 

others. Instead, the jury was given a single, general guilty 

verdict form for the crime of first degree murder that included 

one possible theory of first degree murder preprinted on it. (See 

§ 189, subd. (a).) Under these circumstances, the inclusion of the 

“willful, deliberate, and premeditated” language on the verdict 

form does not constitute a jury finding of the specific theory 

underlying the verdict, nor does it preclude the possibility that 

the jury found appellants guilty of first degree murder under a 

felony-murder or natural and probable consequence theory. 

Accordingly, the presence of this phrase on the verdict form does 

not establish as a matter of law appellants’ ineligibility for relief 

under section 1170.95.

Finally, we reject the suggestion that the observation in our 

prior opinion that “the jury convicted each appellant of willful, 

premediated and deliberate first degree murder” (Simms, supra, 

B074209) should elevate the boilerplate language in the general 

verdict form to an express finding by the jury. Where, as here, 

the instructions and verdict forms presented to the jury 

demonstrate there was no such express finding, we need not give 

dispositive weight to the language in our prior decision. (See

People v. Woodell (1998) 17 Cal.4th 448, 457 [“not . . . all 

appellate opinions” “establish” what happened before the trial 

court, and “[w]hether and to what extent an opinion is probative 

in a specific case must be decided on the facts of that case”].)
16

DISPOSITION

The postjudgment orders denying Simms’s and Hill’s

petitions for resentencing are reversed. The matters are

remanded to the superior court for the issuance of an order to 

show cause and further proceedings in accordance with Penal 

Code section 1170.95, subdivision (d).

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

CHAVEZ, J.

HOFFSTADT, J.