Filed 6/15/22 P. v. Zorns CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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.

RICHARD LOUIS ZORNS,

Defendant and Appellant.

 B308967

 (Los Angeles County

 Super. Ct. No. PA003868)

APPEAL from an order of the Superior Court of Los 

Angeles County, David W. Stuart, Judge. Affirmed.

John Lanahan, 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, Assistant 

Attorney General, Daniel C. Chang and Heidi Salerno, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Richard Louis Zorns appeals from 

the denial of his petition for vacatur and resentencing pursuant 

to Penal Code section 1170.95 entered after an evidentiary 

hearing held under subdivision (d) of that statute.1 He contends 

that the trial court erroneously applied a substantial evidence 

standard to find that defendant was guilty of murder under the 

2018 amendments to sections 188 and 189, rather than requiring 

proof beyond a reasonable doubt. We disagree.

Defendant also contends that the trial court’s order should 

be reversed due to ineffective assistance by appointed counsel in 

the trial court. Finding insufficient evidence to support this 

claim, we reject it and affirm the order.

BACKGROUND

1992 conviction

In 1992 defendant was convicted of first degree murder and 

second degree robbery. He was sentenced to 25 years to life plus 

seven years.2 The judgment was affirmed on appeal in People v. 

Zorns (Mar. 31, 1993, B066434) (nonpub. opn.) (Zorns I).

Factual summary in appellate opinion3

“On July 3, 1990, Judy Adams, assistant manager of the 

San Fernando swap meet, packaged the daily receipts and took 

the money bags to the car of Barney Pipkin, the manager. Two 

1 All further statutory references are to the Penal Code, 

unless otherwise indicated.

2 Defendant was released on parole prior to the hearing on 

his section 1170.95 petition.

3 We quote the factual summary in full, as the trial court 

relied significantly on the summary in ruling on defendant’s 

section 1170.95 petition.
3

other swap meet employees were assisting in loading the car. 

Ricardo Roldan ran up to Pipkin with a gun and said ‘Don’t 

f*****g move.’ As Roldan aimed the gun at Adams, it made a 

clicking noise. Pipkin, who had a hearing disability, continued to 

put the bags in the trunk. Sergio Ayala then approached the car, 

grabbed the money bags, and ran towards the swap meet exit. 

Pipkin ran after Ayala, and Roldan followed. Ayala ran to a 

white Firebird driven by appellant. Meanwhile, Adams phoned 

the police. Juan Jimenez, a security guard, chased after Ayala. 

Jimenez yelled to Roland Teal, another security guard, to help 

him. Teal followed Ayala in his van, and Jimenez followed in the 

car of one of the vendors.

“Teal stopped the getaway car, got out of his van, and 

began struggling with Ayala. Pipkin, Jimenez, and Teal’s 

stepson then arrived at the scene and assisted in subduing Ayala. 

Roldan, holding a gun, shouted at them to let Ayala go or he 

would shoot. Jimenez pushed Ayala toward the gunman and 

heard a burst of gunshots. Everyone scattered. The gunman 

ordered Ayala to pick up the money, and they drove off in the 

getaway car.

“As the robbers drove away, Pipkin called the police from 

his car phone and gave them the license plate number of the 

getaway car. Returning to the scene of the crime, he saw Teal on 

his knees in the street. Teal died as a result of a gunshot that 

pierced his lungs and heart.

“Jimenez identified appellant in court as the driver of the 

getaway car. He testified that he was five feet away from 

appellant as appellant was driving the getaway car out of the 

swap meet. He also identified Roldan from a photographic 

lineup.
4

“Ericka Catalan, who lived near the location where the 

shooting took place, testified that she saw Ayala and Teal 

struggling over bags. She heard gunshots and saw Ayala and a 

second man, who had a gun, run to a car. In court she identified 

appellant as the driver of the car. During a police interview, 

Catalan described the driver of the car as having curly black hair, 

and that he yelled at the men in Spanish to ‘get into the car.’ At 

a photographic lineup, she identified Roldan.

“Christine Pedraza, appellant’s wife, owned a white 

Firebird with license plates matching those reported to the police 

as belonging to the getaway car. She testified at trial under a 

grant of immunity. She overheard appellant making plans to ‘do 

something,’ and noticed that he was trying to hide something 

from her. On June 3, 1990, appellant took her car. Later, he 

called her, sounding ‘hyper,’ and saying that ‘he did it.’ He told 

her to call the police to report that her car had been stolen. She 

then heard Ayala say that no one got a license plate number. 

Appellant told Pedraza not to worry, and not to report the car as 

stolen. When she went to pick up appellant, she saw him with 

Ayala, Roldan, and two other men, Mendez and Carlos. A pouch 

containing money was on the couch next to Ayala. She also saw a 

briefcase and a brown paper bag, both containing money. Back at 

her house, she later saw appellant take money out of a brown 

paper bag, and count out $4000.

“Roldan’s former girlfriend, Jude Barrios, testified under a 

grant of immunity at the preliminary hearing and at trial that 

she became aware that Roldan was planning to rob the San 

Fernando swap meet about a year before the incident. A month 

prior to the robbery, at the house she and Roldan shared, she 

heard Roldan discuss robbing the swap meet with appellant. The 
5

day before the robbery, she heard Roldan tell appellant and 

Ayala that they could ‘do it’ the next day.

“The next evening, Barrios picked up Roldan at appellant’s 

house. The day after the robbery, Barrios heard Roldan, Ayala, 

and appellant discussing the robbery. Roldan said he heard 

Ayala tell the security guard holding him to let him go or his 

homeboy would kill him.”

Section 1170.95 petition

In 2018, the Legislature amended sections 188 and 189, 

limiting the scope of the felony-murder rule, effective January 1, 

2019. The Legislature added section 1170.95, which provides a 

procedure for those convicted of murder to retroactively seek 

relief if they could not be convicted under sections 188 and 189 as 

amended effective January 1, 2019. (Stats. 2018, ch. 1015; People 

v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)4

In January 2019 defendant filed a petition pursuant to 

section 1170.95, including a declaration alleging that he had been 

4 Section 188, subdivision (a)(3) now 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.” Section 189, subdivision (e) now 

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 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.”
6

charged in an information that allowed the prosecution to 

proceed under a theory of felony murder, and though he was 

convicted of first degree murder, he could not now be convicted 

due to the changes to sections 188 and 189. Counsel appeared for 

defendant and both sides submitted briefs. On October 20, 2020, 

the trial court called the matter for an evidentiary hearing on the 

“major participant issue,” although the record does not reflect 

that the trial court issued an order to show cause.

At the evidentiary hearing the parties submitted the issue 

on the facts summarized in Zorns I, supra, B066434. In addition, 

the prosecutor asked the court to consider the testimony from 

defendant’s 1992 trial reported at pages 1391 through 1393 of 

volume 10 of the reporter’s transcript. Those pages featured the 

testimony of Barrios (Roldan’s former girlfriend) to the effect that 

the day after the robbery she heard defendant, Roldan and Ayala 

laughing and joking about the robbery. She testified that 

defendant said he ran over some people and then laughed when 

Roldan told him he was crazy.5 She also testified that defendant 

said he did not drive too close to the scene because he did not 

want to draw suspicion to the car or be recognized.

The trial court reviewed the facts as summarized in the 

appellate opinion and those presented by the prosecutor before 

denying the petition. The court based its findings on an analysis 

of factors suggested in People v. Banks (2015) 61 Cal.4th 788 

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), finding

that defendant was a major participant in the robbery, having 

been part of the planning for at least a month, and acted with 

5 The reporter’s transcripts of the 1992 trial do not show any

evidence that defendant ran over anyone. Indeed, the prosecutor 

conceded in his closing argument that it did not happen.
7

reckless indifference to human life with “indifference to an actual 

awareness of the grave risk of death by committing robbery,” and 

was thus guilty of murder under the current felony-murder rule 

set forth in section 189. (See § 189, subd. (e)(3).)

Defendant filed a timely notice of appeal from the order 

denying his petition.

DISCUSSION

I. The trial court proceedings

A. Standard of proof

Defendant contends that the trial court erroneously based 

its findings upon a substantial evidence review, using the wrong 

standard of proof in concluding that he was a major participant 

in the underlying robbery and acted with reckless indifference to 

human life.6 Defendant argues that the error was prejudicial as 

there is a reasonable probability that if the court had applied a 

reasonable doubt standard, his petition would have been granted.

At the time the trial court ruled on defendant’s petition, 

section 1170.95, former subdivision (d)(3) provided that at the 

evidentiary hearing stage of proceedings, “the burden of proof 

6 Defendant argues that the trial court used the standard of 

review set forth in People v. Duke (Sept. 28, 2020, B300430), 

review granted, cause transferred and opinion ordered 

nonpublished Nov. 23, 2021, S265309. Although Duke described 

what was essentially the substantial evidence standard, 

defendant describes the standard used by the trial court 

alternatively as substantial evidence and as “the ‘some evidence’ 

standard.” The “some evidence” standard of review requires only 

a modicum of evidence. (In re Shaputis (2011) 53 Cal.4th 192, 

209-210.) Defendant’s use of the term does not affect our 

analysis.
8

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

that the petitioner is ineligible for resentencing.” (See Lewis,

supra, 11 Cal.5th at p. 960.) The Legislature recently amended 

section 1170.95 and added language to subdivision (d)(3) to 

reaffirm the prosecutor’s burden of proof beyond a reasonable 

doubt, adding: “A finding that there is substantial evidence to 

support a conviction for murder, attempted murder, or 

manslaughter is insufficient to prove, beyond a reasonable doubt, 

that the petitioner is ineligible for resentencing.” (Stats. 2021, 

ch. 551, § 2; see id., § 1(c).)7

At the evidentiary hearing the prosecutor advocated a 

substantial evidence review, while defense counsel argued that 

the prosecution’s standard of proof was beyond a reasonable 

doubt. The trial court’s statement of findings and ruling does not 

include the standard it applied. The People argue that the court 

impliedly applied a reasonable doubt standard because it acted as 

an “independent factfinder.”8 The judge in this proceeding was 

7 Section 1170.95, subdivision (d) also now includes: “The 

admission of evidence in the hearing shall be governed by the 

Evidence Code, except that the court may consider evidence 

previously admitted at any prior hearing or trial that is 

admissible under current law, including witness testimony, 

stipulated evidence, and matters judicially noticed. The court 

may also consider the procedural history of the case recited in 

any prior appellate opinion. . . . The prosecutor and the 

petitioner may also offer new or additional evidence to meet their 

respective burdens. . . .”

8 The People seemingly come to this conclusion by analyzing 

the following appellate court cases, which are no longer citable, 

by order of the California Supreme Court: People v. Clements 

(Feb. 2, 2021, E073965), review granted, cause transferred and 
9

not the trial judge, and the court’s comments regarding the 

parties’ citations to the appellate opinion suggest that the court 

had not reviewed the reporter’s trial transcripts, but instead 

reviewed the facts summarized in Zorns I and those recited by 

the prosecutor at the hearing.9 The appeal in Zorns I did not 

address any claim or factors relating to whether defendant was a 

major participant in the robbery or whether he acted with 

reckless indifference to human life. At the section 1170.95, 

subdivision (d) hearing, the prosecutor did not proffer any new 

evidence or cite to the trial transcripts other than the testimony 

relating to defendant’s joke about having run someone over at the 

scene. The record need not affirmatively demonstrate the trial 

court’s application of the correct legal standard; instead, we 

presume the court applied the correct standard unless there is 

evidence to the contrary. (Evid. Code, § 664; Peake v. Underwood

(2014) 227 Cal.App.4th 428, 447; People v. Mack (1986) 178 

opinion ordered nonpublished Dec. 22, 2021, S267624; People v. 

Rodriguez (Dec. 7, 2020, B303099), review granted, cause 

transferred and opinion ordered nonpublished Dec. 22, 2021, 

S266652; People v. Lopez (Oct. 30, 2020, H047254), review 

granted, cause transferred and opinion ordered nonpublished 

Dec. 22, 2021, S265974; People v. Duke, supra, B300430, review 

granted, cause transferred and opinion ordered nonpublished.

9 Originally, there were 17 volumes of reporter’s transcripts, 

which are no longer available in this court’s archives. The People 

filed 16 of the transcripts but were unable to locate volume 7. We 

granted the People’s request for judicial notice of its brief in 

defendant’s appeal from the 1992 judgment. The People also

refer here to the brief’s summary of the testimony reported in the 

missing transcript. We have reviewed some of the record 

available.
10

Cal.App.3d 1026, 1032.) We decline defendant’s invitation to do 

otherwise.

B. The Banks and Clark factors

The reckless indifference requirement was first articulated 

in Tison v. Arizona (1987) 481 U.S. 137 and Enmund v. Florida

(1982) 458 U.S. 782 in relation to the imposition of the death 

penalty. In Banks, decided after defendant was convicted of 

felony murder, the California Supreme Court applied the 

analysis to felony-murder special-circumstance requirements 

under section 190.2. (Banks, supra, 61 Cal.4th at p. 794.) As 

amended, section 189, subdivision (e)(3), incorporates the same 

requirement into the felony-murder statute. Thus, to convict a 

defendant who was not the actual killer of felony murder, the 

prosecution is required to prove beyond a reasonable doubt that 

the defendant acted with reckless indifference to human life as a 

major participant in one of the enumerated serious felonies 

underlying felony murder.

The factors for determining whether the defendant acted 

with reckless indifference to human life as a major participant 

were further clarified when the California Supreme Court 

explained that a finding of reckless indifference to human life 

“‘requires the defendant be “subjectively aware that his or her 

participation in the felony involved a grave risk of death.”’” 

(Banks, supra, 61 Cal.4th at p. 807.) Thus it must be proven 

beyond a reasonable doubt that the defendant “knew his own

actions would involve a grave risk of death.” (Ibid., italics 

added.)

Our high court has explained a spectrum of culpability, a 

continuum with Enmund’s conduct at one end and the Tison 

brothers’ conduct at the other, with other nonkiller felony 
11

murderers falling in between; thus at one end is “‘the minor actor 

in an armed robbery, not on the scene, who neither intended to 

kill nor was found to have had any culpable mental state.’”

(Banks, supra, 61 Cal.4th at p. 800.) At the other end are the 

“actual killers and those who attempted or intended to kill.” 

(Ibid.; see id. at pp. 800-802.) “Somewhere between them, at 

conduct less egregious than the Tisons’ but more culpable 

than . . . Enmund’s, lies the constitutional minimum” showing 

required for the imposition of death or life without the possibility 

of parole. (Id. at p. 802.)

Thus “any person who plans or participates in an armed 

robbery can be said to anticipate that lethal violence might be 

used, given that ‘roughly 1 in 200 [armed robberies] results in 

death.’ [Citation.] But that fact, without more, does not 

establish reckless indifference to human life.” (In re Scoggins

(2020) 9 Cal.5th 667, 682 (Scoggins), quoting Banks, supra, 61 

Cal.4th at p. 811.) Our Supreme Court has identified a number 

of considerations bearing on whether a defendant was a major 

participant who acted with reckless indifference to human life. 

(Banks, supra, at p. 803.) What matters is the totality of the 

considerations. (Scoggins, supra, at p. 677.)

The factors used to determine whether the defendant was a 

major participant include the role played by the defendant in 

planning the criminal enterprise that led to death; the role 

defendant had in supplying or using a lethal weapon; the

awareness of the defendant of the particular dangers posed by 

the nature of the crime, weapons used, or past experience or 

conduct of the other participants; the defendant’s presence at the 

scene of the killing; and the defendant’s action after lethal force 

was used. (Banks, supra, 61 Cal.4th at p. 803; see Clark, supra, 
12

63 Cal.4th at p. 611; see also Scoggins, supra, 9 Cal.5th at

p. 677.)

C. The trial court’s findings

The trial court found defendant’s actions to be more 

extensive than those of a Banks-like getaway driver. It cited two

of the Banks factors and found them sufficient to support its 

finding that defendant acted with reckless indifference to human 

life: planning; and presence at the scene of the killing and no 

effort to prevent the killing. (See Scoggins, supra, 9 Cal.5th at

p. 677; Banks, supra, 61 Cal.4th at p. 803.)

1. Planning

The trial court found that defendant was involved in 

planning for “at least a month.” The appellate opinion and the 

record support this finding, indicating that defendant learned of 

Roldan’s plan one month before the robbery. The opinion recited

Barrios’s testimony that a month before the robbery she heard 

Roldan discussing robbing the swap meet, which he had been 

planning for a year. (Zorns I, supra, B066434.)

The prosecution asserts that the trial court’s finding is 

supported by trial evidence, citing specific pages in the record.

10 

Our review of the testimony at or near the cited pages shows that 

Barrios testified she did not know exactly when she first 

overheard Roldan discussing his plans for the robbery with 

defendant, that it was “a month give or take” before the robbery, 

and that she overheard no more discussions with defendant about 

10 The prosecution cites the reporter’s transcript, volume 6 at 

pages 957 and 962, and volume 10 at pages 1356, 1357, 1358, and 

1361. As page 1361 was limited to the codefendants and not to be 

considered against defendant, we do not consider whether it 

supports the prosecution’s contention.
13

the robbery until just before it occurred when Roldan said they 

“would do it tomorrow.” Though defendant and Ayala did not 

verbally respond, they shrugged their shoulders and nodded their 

heads. The robbery occurred the next day. Pedraza testified that 

she overheard defendant and some friends planning to “do the 

swap meet.”

2. Presence at the scene

The trial court found that defendant was present at the 

scene of the killing and also that the shooting “happened 

presumably right in front of [defendant], who at that point had 

the ability to prevent the killings [sic] from happening.” The 

court observed: “There is obviously a short car chase from the 

scene of the robbery to where it ended. [I]t’s unclear exactly how 

long that car chase lasted, but his car had to be stopped by the 

security guards and another witness or security guard or swap 

meet participant and that’s when the shooting happened . . . . 

There was a struggle over the money and at that point 

[defendant] could have stopped his accomplice from insisting on 

taking the money. But he didn’t, and the shot was fired, and the 

defendant drove the shooter away.”

There was a short chase, but defendant notes the getaway 

car was not stopped. It was parked at the exit gate when Ayala 

ran toward it with the money bags. Pipkin followed on foot 

behind Ayala a short distance before returning to his car. 

Jimenez testified that he chased Ayala on foot, and defendant 

then engaged in driving that blocked or shielded Ayala from 

security guard Jimenez. Eventually Ayala was able to get inside 

the white getaway car, which then left the scene. These facts 

support the trial court’s conclusion that defendant was at the 

scene, actively involved to the extent he assisted in Ayala’s 
14

escape and had the opportunity to have prevented the shooting 

death of the victim.

3. Awareness of dangers posed by the nature of the 

crime, weapons used, or past experience or conduct 

of confederates

The trial court acknowledged that there was no evidence of 

past experience or conduct between defendant and Roldan or 

Ayala that would relate to defendant’s knowledge of the 

particular danger, and we found none in the trial transcript. 

This however, does not mean defendant was not a major 

participant who acted with reckless indifference to human life.

D. Analysis

Because the trial court independently found defendant 

guilty of murder because defendant was a major participant who 

“did, in fact, act with reckless indifference to human life,” it is our 

task to view the record to determine the existence of “substantial 

evidence—evidence that is reasonable, credible, and of solid 

value—such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” (People v. Hubbard

(2016) 63 Cal.4th 378, 392.)

1. Major participant

Substantial evidence supports finding that defendant was a 

major participant, even when applying the afore-described (part

I.B.) Banks and Clark factors.

First, defendant engaged in planning the robbery by 

attending a meeting for that purpose a month or so before the 

heist and then discussing the night before “do[ing] the swap 

meet.”
15

Second, at the scene, defendant actively used the getaway 

car to block or shield Ayala from the security guards who were 

trying to apprehend Ayala.

Finally, defendant was at the scene of the killing and did 

not intervene in any way to stop the shooting of the victim. Nor 

did defendant render any aid to the victim. Instead he fled the 

scene driving the vehicle containing Roldan and Ayala to a place 

of safety where they could count the stolen money.

2. Reckless indifference to human life

This standard “has a subjective and an objective element.” 

(In re Scoggins, supra, 9 Cal.5th at p. 677.) To satisfy the 

subjective component, “‘[t]he defendant must be aware of and 

willingly involved in the violent manner in which the [underlying 

felony] is committed,’ and . . . must consciously disregard ‘the 

significant risk of death his or her actions create.’” (Ibid., quoting 

Banks at p. 801.) The key is whether the defendant 

demonstrates “a willingness to kill (or to assist another in killing) 

to achieve a distinct aim, even if the defendant does not 

specifically desire that death as the outcome of his actions.” 

(Clark, supra, 63 Cal.4th at p. 617.)

Our Supreme Court has identified various considerations 

bearing on whether a defendant has acted with reckless 

indifference to human life. “No one of these considerations is 

necessary, nor is any one of them necessarily sufficient” (Banks, 

supra, 61 Cal.4th at p. 803); what matters is the totality of the 

considerations (Scoggins, supra, 9 Cal.5th at p. 677). The 

considerations are: (1) “Did the defendant use or know that a 

gun would be used during the [underlying] felony,” and, “[h]ow 

many weapons were ultimately used?”; (2) “Was the defendant 

physically present at the crime,” such that he had “the 
16

opportunity to restrain the crime or aid the victim?”; (3) “What 

was the duration of the interaction between the perpetrators . . .

and the victims?”; (4) “What was the defendant’s knowledge of

his . . . confederate’s propensity for violence or likelihood of using 

lethal force?”; and (5) “What efforts did the defendant make to 

minimize the risks of violence during the felony?” (Ibid., citing 

Clark, supra, 63 Cal.4th at pp. 618-623.)

Substantial evidence supports the finding that defendant 

acted with reckless indifference to human life, when applying 

this standard. First, although defendant did not personally use 

the gun, he must have known Roldan was armed with a gun since 

they came together to the scene in the car driven by defendant. 

Second, defendant was present during the shooting and did not 

try to stop or dissuade Roldan from shooting. Third, the entire 

incident happened quickly. Finally the record shows no effort by 

defendant to minimize the risk of violence.

E. Conclusion

We conclude that there is substantial evidence upon which 

an independent fact finder reviewing the record considered by the 

original trial court could conclude that the prosecutor had proved 

beyond a reasonable doubt that defendant is guilty of murder 

under the current sections 188 and 189. We thus affirm the 

order.

II. Assistance of counsel

A. Applicable legal principles

The Sixth Amendment right to counsel does not apply to 

postjudgment collateral challenges, including statutory petitions 

seeking a more ameliorative sentence. (People v. Frazier (2020) 

55 Cal.App.5th 858, 865-866.)
17

Section 1170.95, which established a procedure for 

defendants to seek resentencing in the trial court, constituted an 

act of lenity that does not implicate a petitioner’s Sixth 

Amendment rights. (People v. Anthony (2019) 32 Cal.App.5th

1102, 1156; see People v. Daniel (2020) 57 Cal.App.5th 666, 675.)

Consistent with these principles, our Supreme Court in 

Lewis reasoned that a petitioner is not constitutionally entitled to 

counsel at the outset of the subdivision (c) stage of the petitioning 

process, concluding that “the trial court’s failure to appoint 

counsel to represent [the petitioner] was state law error only.” 

(Lewis, supra, 11 Cal.5th at p. 973.) And in holding that the trial 

court’s error is reviewed for prejudice under People v. Watson

(1956) 46 Cal.2d 818, 836, Lewis explained the state statutory 

error did not amount to structural error or a pervasive Sixth 

Amendment violation. (Lewis, supra, at pp. 973-974.)

Although defendant had no Sixth Amendment right to 

counsel, he did have a statutory right to assistance of counsel. “If 

the petitioner has requested counsel, the court shall appoint 

counsel to represent the petitioner.” (§ 1170.95, former subd. (c).)

The law is undeveloped as to whether a statutory right to 

the appointment of counsel in a collateral criminal resentencing 

action triggers an attendant due process right to the effective 

assistance of counsel. (See People v. Rouse (2016) 245 

Cal.App.4th 292, 300 [noting right to counsel without discussing 

effective assistance of counsel].) Since the entitlement to counsel 

after an order to show cause under section 1170.95 is not a hollow 

right, counsel should be held to the same standard of competency 

set forth in Strickland v. Washington (1984) 466 U.S. 668

(Strickland). Based on that assumption we nevertheless find 

that defendant has failed to demonstrate entitlement to relief.
18

In order to establish a claim of ineffective assistance of 

counsel under Strickland, defendant must show that his counsel’s 

performance was deficient and that he suffered prejudice as a

result of such deficiency. (Strickland, supra, 466 U.S. at pp. 687-

692.) Defendant bears the burden of showing counsel’s 

performance “fell below an objective standard of reasonableness” 

“under prevailing professional norms.” (Id. at p. 688.) “Judicial

scrutiny of counsel’s performance must be highly deferential.” 

(Id. at p. 689.) There is a strong presumption that counsel 

“rendered adequate assistance and made all significant decisions 

in the exercise of reasonable professional judgment.” (Id. at 

p. 690.) Defendant must also show that counsel’s deficiencies 

resulted in prejudice, that is, a “‘reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding 

would have been different.’” (Id. at p. 694.)

B. Counsel’s representation was adequate

1. Within objective standard of reasonableness

Defendant contends his counsel failed to point out certain 

“[f]actual errors in the decision of the Court of Appeal” from 1993. 

(Boldface omitted.) Specifically he claims a discrepancy between 

the trial court’s statement that “Teal followed the getaway car 

and stopped it” and testimony given by Pipkin and Jimenez. 

However, defendant fails to make the required showing that his 

counsel’s performance fell below an objective standard of 

reasonableness under prevailing professional norms and that, but 

for the alleged error, the results of the section 1170.95 proceeding 

would have been different. Rather, the superior court applied an 

independent fact finder standard of review and presumably found 

beyond a reasonable doubt that, because defendant was a major 

participant who acted with reckless indifference to human life, he 
19

was ineligible for resentencing. To the extent the trial court 

relied on the challenged statement in this court’s decision, it was 

an appropriate finding under section 1170.95, former subdivision 

(d)(3). The findings are also supported by the trial transcript of 

witnesses’ testimony. Though details between the appellate 

opinion and the trial transcript may not be identical, both contain 

information that defendant was not only a driver who waited offsite for his confederates to steal money and then come to him for 

a ride. Rather the evidence shows defendant was close at hand 

and when Ayala was running toward the white car, defendant 

used the car (traveling both forward and in reverse) to gain a 

position of advantage for Ayala. Defendant was described as 

using the white car as a shield for the escaping Ayala.

Defendant also contends that his defense counsel’s reliance 

on Banks and Clark was misplaced because unlike many or most 

cases in which a petition for relief under section 1170.95 has been 

filed by an accomplice to felony murder, there was no prior 

finding of a section 190.2 special circumstance that would

preclude defendant from relief. This argument lacks merit 

because at defendant’s evidentiary hearing, the court determined 

whether defendant was liable for murder under current law 

beyond a reasonable doubt, and each side had the opportunity to 

offer “new or additional evidence” concerning that issue.

Defendant also claims his counsel failed to review or refer 

to the transcript of his trial. Defendant relies extensively on 

evidence that he believes would have more convincingly rebutted 

the prosecution. However, as Strickland explained, “[i]t is all too 

tempting for a defendant to second-guess counsel’s assistance 

after conviction or adverse sentence, and it is all too easy for a 

court, examining counsel’s defense after it has proved 
20

unsuccessful, to conclude that a particular act or omission of 

counsel was unreasonable. [Citation.] . . . [Citation.] There are 

countless ways to provide effective assistance in any given case. 

Even the best criminal defense attorneys would not defend a 

particular client in the same way.” (Strickland, supra, 466 U.S. 

at p. 689; see People v. Holt (1997) 15 Cal.4th 619, 704.) 

Defendant’s claims amount to little more than alternatives, with 

hindsight and awareness of the failure of trial counsel’s tactics, 

which might have offered a stronger defense.

Defendant’s remaining claims concerning his participation 

in the crimes and his reckless indifference to human life are an 

attempt to reargue the evidence, an exercise in which we will not 

participate.

Defendant has thus failed to meet his burden of 

demonstrating his counsel’s performance “fell below an objective 

standard of reasonableness” “under prevailing professional 

norms.” (Strickland, supra, 466 U.S. at p. 688.)

2. Defendant fails to demonstrate prejudice

Even assuming that counsel provided deficient 

representation by failing to provide specific record citations for 

the evidence he raised in support of his argument, defendant has 

not shown a reasonable probability of a different result but for 

his counsel’s alleged deficiencies. The evidence contained in the 

record before the trial court showed that defendant was a major 

participant who acted with reckless indifference to human life. 

Counsel’s citations to specific pages in the transcript would not 

have changed the record, and therefore not the result. (See 

People v Harpool (1984) 155 Cal.App.3d 877, 886-887 [defendant 

was not deprived of effective assistance of counsel as the result of 

counsel’s failure to move to suppress in-court identification 
21

testimony of witness where trial court attributed little value to 

that witness’s testimony, and both the direct and circumstantial 

evidence presented at trial overwhelmingly favored defendant’s 

guilt].)

DISPOSITION

The order denying the section 1170.95 petition is affirmed.

___________________________

CHAVEZ, J.

We concur:

_______________________________

ASHMANN-GERST, Acting P. J.

_______________________________

HOFFSTADT, J.