Filed 7/5/22 P. v. Forch CA2/8

Opinion following transfer from Supreme Court

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANKLIN LARANCE 

FORCH,

Defendant and Appellant.

 B296637

 (Los Angeles County 

 Super. Ct. No. MA030634)

APPEAL from an order of the Superior Court of Los 

Angeles County. Kathleen Blanchard, Judge. Affirmed. 

David M. Thompson, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Xavier Becerra and Rob Bonta, Attorneys General, 

Lance E. Winters, Chief Assistant Attorney General, Susan 

Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez, 

Idan Ivri and Nancy Lii Ladner, Deputy Attorneys General, for 

Plaintiff and Respondent.

* * * * * * * * * *
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In January 2005, defendant and appellant Franklin 

Larance Forch was charged with nine felonies, including one 

count of murder, and two misdemeanor offenses arising from an 

incident on September 26, 2004, in which defendant attacked his 

mother and stepfather. His stepfather died from his injuries. 

In 2009, pursuant to a negotiated plea agreement, 

defendant pled no contest to the murder of his stepfather and 

admitted a prior qualifying strike conviction, a felony 

enhancement (Pen. Code, § 667, subd. (a)(1)), and four prison 

priors (§ 667.5, subd. (b)). The court accepted defendant’s plea 

and waivers on the record and counsel stipulated to a factual 

basis for the plea. The remaining counts were dismissed.

Defendant was sentenced to state prison for a term of 23 years to 

life and awarded 1,853 days presentence custody credits. This 

court affirmed defendant’s conviction (People v. Forch (Feb. 7, 

2011, B221505) [nonpub. opn.]). 

In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was 

passed. Penal Code section 1170.95 was enacted as part of the 

legislative changes effected by Senate Bill 1437 and became 

effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)

On January 7, 2019, defendant filed a petition in propria 

persona requesting resentencing pursuant to Penal Code 

section 1170.95. The petition requested the appointment of 

counsel and alleged defendant pled guilty because he believed he 

could have been convicted of murder under a theory of felony 

murder or the natural and probable consequences doctrine and 

that he could not now be convicted in light of the amendments to 

the murder statutes. 

The trial court summarily denied the petition without 

appointing counsel, finding defendant was ineligible as a matter 
3

of law. In the court’s written denial order, the court explained: 

“[T]he court takes judicial notice of the trial court records in this 

case, including the Probation Report, which details the 

underlying facts of the case. The record reveals the defendant 

entered a plea to second degree murder. However, the People 

never pursued either a felony-murder theory or a natural and 

probable consequence theory of murder. Here, the defendant 

chased his mother and stepfather down with a knife, then 

proceeded to attack them both. His stepfather later died as a 

result[.] [T]he theory of liability for murder was that the 

defendant was the actual killer, who acted with malice 

aforethought. [¶] Because the case involved neither a felonymurder theory, nor natural and probable consequences theory, 

the defendant has failed to make a prima facie case for relief.” 

Defendant appealed. 

In an unpublished decision, we affirmed the denial of 

defendant’s resentencing petition based on the law as it existed 

at that time. (People v. Forch (Jan. 10, 2020, B296637) [nonpub. 

opn.].)

Defendant filed a petition seeking review in the Supreme 

Court. In April 2020, the Supreme Court granted review and 

deferred briefing pending its disposition of cases raising similar 

issues. 

While this case was pending in the Supreme Court, the 

Court issued its decision in People v. Lewis (2021) 11 Cal.5th 952 

(Lewis) and the Legislature passed Senate Bill 775 (2021–2022 

Reg. Sess.) which, among other things, amended the language of 

Penal Code section 1170.95 (Stats. 2021, ch. 551, § 2).

On April 27, 2022, the Supreme Court transferred this case 

to us with directions to vacate our decision and reconsider the 
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matter in light of Lewis. The parties submitted supplemental 

briefs. Having vacated our original decision and reconsidered the 

issues presented, we again affirm the denial of defendant’s 

petition.

The Supreme Court concluded in Lewis “that the statutory 

language and legislative intent of [Penal Code] section 1170.95 

make clear that petitioners are entitled to the appointment of 

counsel upon the filing of a facially sufficient petition (see 

§ 1170.95, subds. (b), (c)) and that only after the appointment of 

counsel and the opportunity for briefing may the superior court 

consider the record of conviction to determine whether ‘the 

petitioner makes a prima facie showing that he or she is entitled 

to relief.’ (§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at 

p. 957, italics omitted.) 

Lewis also instructs that the failure to appoint counsel 

upon the filing of a facially compliant petition is “state law error 

only,” subject to harmless error analysis under People v. Watson

(1956) 46 Cal.2d 818. (Lewis, supra, 11 Cal.5th at pp. 957–958, 

972–973.) “[A] petitioner ‘whose petition is denied before an 

order to show cause issues has the burden of showing “it is 

reasonably probable that if [he or she] had been afforded 

assistance of counsel his [or her] petition would not have been 

summarily denied without an evidentiary hearing.” ’ ” (Id. at 

p. 974.) 

Our task is to determine whether the trial court’s summary 

denial without appointing counsel was harmless. We conclude 

that it was.

The record of conviction demonstrates that defendant was 

charged and convicted as the actual killer. There is nothing in 

the record indicating any other individuals were involved in the 
5

attack on defendant’s mother and stepfather, or that the theory of 

the prosecution was felony murder or the natural and probable 

consequences doctrine. Where the record of conviction, 

“ ‘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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.) The trial 

court was justified in denying the petition as a matter of law. 

Defendant did not present any basis for finding that if he had 

been afforded counsel, there was a reasonable probability his 

petition would not have been summarily denied.

DISPOSITION

The order denying the petition for resentencing is affirmed. 

GRIMES, J.

WE CONCUR: 

STRATTON, P. J. 

WILEY, J.