Filed 4/21/21 P. v. Childress 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.

JOEL VINCENT CHILDRESS,

Defendant and Appellant.

 B299879

 (Los Angeles County

 Super. Ct. No. BA356413)

APPEAL from an order of the Superior Court of Los 

Angeles County, Ronald S. Coen, Judge. Affirmed.

Joanna McKim, 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 Lee and David A. Voet, Deputy 

Attorneys General, for Plaintiff and Respondent.

* * * * * *
2

Defendant and appellant Joel Vincent Childress 

(defendant) appeals from the summary denial of his petition for 

resentencing under Penal Code section 1170.95.1 Defendant 

contends that the trial court was required to appoint counsel and 

permit briefing prior to finding defendant eligible or ineligible for 

relief. Finding no merit to defendant’s contention, we affirm the 

order.

BACKGROUND

The 2011 murder convictions2

Defendant and codefendants were tried together and 

convicted of one count of first degree murder (count 2); two counts 

of attempted willful, deliberate, and premeditated murder

(counts 3 and 4); and one count of making a criminal threat

(count 5). In addition, defendant was convicted of one count of 

second degree murder (count 1). The jury found true the special 

circumstance that count 1 was one of multiple murders, within 

the meaning of section 190.2, subdivision (a)(3). The jury also 

found true that, as to all counts, the crimes were committed for 

the benefit of, at the direction of, and in association with a 

criminal street gang, with the specific intent to promote, further 

and assist in criminal conduct by gang members, within the 

meaning of section 186.22, subdivision (b)(1)(C); as to counts 1, 2, 

3, and 4, that a principal personally and intentionally used and 

discharged a firearm, within the meaning of section 12022.53, 

1 All further statutory references are to the Penal Code, 

unless otherwise indicated.

2 We granted defendant’s request for judicial notice of the 

appellate record in People v. Childress (Sept. 4, 2013, B238241) 

(nonpub. opn.) (Childress I). We summarize the procedural 

history and some of the trial evidence from this opinion.
3

subdivisions (c) and (e)(1); and as to counts 1 and 2 that the

discharge of the firearm proximately caused great bodily injury 

and death to the victims. (Childress I, supra, B238241.)

Trial evidence

Count 1: second degree murder

The evidence presented at trial showed that in February 

2008 a white Chevrolet sedan approached a liquor store where 

the store’s surveillance camera recorded the sedan circling 

around and slowing to a stop at the curb in front of the murder 

victim. (Childress I, supra, B238241.) The video showed a 

person in dark clothing getting out of the white car just before 

two flashes were seen. (Ibid.) Defendant later admitted to law 

enforcement that he was driving his mother’s white Chevrolet 

sedan with two fellow gang members as passengers, knowing 

that they intended to “put in work” for the gang, and knowing 

that getting out of a car to “bang” on someone meant that 

violence would result. (Ibid.) Defendant also admitted that 

before he drove them to the liquor store, he had guessed that one 

of his passengers had a gun. He admitted that when he pulled up 

to the curb, the gang member with the gun opened the door and 

started shooting. (Ibid.) Soon afterward, the sedan was painted 

black. Defendant claimed that his mother had it painted after an 

accident. (Ibid.)

Counts 2-5: first degree murder, attempted murders, 

threat

In May 2009, defendant was driving the same Chevrolet 

sedan, by then painted black, with his codefendants and fellow 

gang members, Kelsie Palmer and Eric Allen. (Childress I, 

supra, B238241.) He stopped alongside a woman wearing a blue 

bandanna, a color symbolizing a rival gang. (Ibid.) Allen got out 
4

of the car and held a gun to the woman’s side, as both he and 

Palmer threatened her several times before the three men left 

the scene. (Ibid.)

A short time later, defendant and his companions came 

across a woman sitting in her parked car talking to her boyfriend 

and a neighbor, who stood outside the car. (Childress I, supra, 

B238241.) Defendant pulled the black sedan up alongside her car 

and stopped, just before Palmer opened the front passenger door

and Allen emerged from rear passenger seat. (Ibid.) Allen and 

possibly Palmer may have fired their weapons, wounding the 

neighbor and killing the woman. Defendant and his 

codefendants were identified and arrested the same day. (Ibid.)

The section 1170.95 petition

In June 2019, defendant filed a petition for resentencing 

under section 1170.95. On the form petition, defendant checked 

the boxes for the allegations that he had been charged with 

murder, that he was not the actual killer, that he was convicted 

“pursuant to the felony murder rule or the natural and probable 

consequences doctrine,” that he was not a major participant in 

the crime, and that his murder conviction would be invalid under 

the “changes made to Penal Code §§ 188 and 189, effective 

January 1, 2019.” Defendant checked both the box requesting

the appointment of counsel, as well as the box averring that there 

has been a prior determination by a court or jury that he was not 

a major participant in the crime or did not act with reckless 

indifference to human life under section 190.2.

Defendant also checked every other box on the form 

petition, except the box indicating conviction of second degree 

murder on a plea of guilty or no contest.
5

On August 21, 2019, after a review of the court’s file and 

our appellate opinion in Childress I, the trial court found 

defendant ineligible for relief under section 1170.95, and 

summarily denied the petition.

Defendant filed a timely notice of appeal from the order.

DISCUSSION

Defendant contends that the trial court prejudicially erred 

by summarily denying his petition for resentencing without 

appointing counsel and permitting briefing, in violation of his 

federal constitutional rights to due process and the assistance of 

counsel.

A petitioner under section 1170.95 is entitled to the 

appointment of counsel, the opportunity for further briefing, and 

a hearing only if his petition makes a prima facie showing that he 

is entitled to relief. (See § 1170.95, subds. (c) & (d).) A “‘prima 

facie showing is one that is sufficient to support the position of 

the party in question.’” (People v. Drayton (2020) 47 Cal.App.5th 

965, 977 (Drayton), quoting Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 851.) As relevant here, a person is entitled 

to relief under section 1170.95 if he was convicted of felony 

murder or murder under a natural and probable consequences 

theory and all of the following conditions apply: (1) “[a] complaint, 

information, or indictment was filed against [him] that allowed 

the prosecution to proceed under a theory of felony murder or 

murder under the natural and probable consequences doctrine,” 

(2) he “was convicted of first degree or second degree murder 

following a trial,” and (3) he “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).)
6

Defendant argues that he made a prima facie showing of 

entitlement to relief because he checked the boxes indicating the 

required allegations. He concludes that the trial court was thus 

required to issue an order to show cause and to appoint counsel. 

Defendant checked all the boxes except the box to allege that he 

had pled guilty or no contest. If every petitioner did the same, 

everyone would make out a prima facie case for relief whether 

true or untrue, making the pleading requirements of section 

1170.95, subdivision (a) meaningless. However, contrary to 

defendant’s argument, even where a petition alleges every

element necessary to make out a prima facie case for relief, a 

trial court is not required to accept those allegations at face 

value, but may also examine the record of conviction. (People v. 

Lewis (2020) 43 Cal.App.5th 1128, 1138, review granted Mar. 18, 

2020, S260598 (Lewis); see People v. Tarkington (2020) 49 

Cal.App.5th 892, 899-900, 908-909, review granted Aug. 12, 2020, 

S263219 (Tarkington); People v. Edwards (2020) 48 Cal.App.5th 

666, 673-674, review granted July 8, 2020, S262481; Drayton, 

supra, 47 Cal.App.5th at p. 968; People v. Torres (2020) 46 

Cal.App.5th 1168, 1178, review granted June 24, 2020, S262011; 

People v. Verdugo (2020) 44 Cal.App.5th 320, 329-330, review 

granted Mar. 18, 2020, S260493; but see People v. Cooper (2020) 

54 Cal.App.5th 106, 119-121, review granted Nov. 10, 2020, 

S264684.)

The record of conviction includes such documents as 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.) The record of conviction also 

includes jury instructions and any appellate opinion in the case. 
7

(See Lewis, supra, 43 Cal.App.5th at pp. 1138-1139.) The 

contents of the record of conviction will defeat a defendant’s 

prima facie showing when the record “show[s] as a matter of law

that the petitioner is not eligible for relief.” (Lewis, at p. 1138, 

italics added; see Drayton, 47 Cal.App.5th at p. 968; Torres, 

supra, 46 Cal.App.5th at p. 1177; Verdugo, at p. 333; see also 

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

Mar. 18, 2020, S260410 [record must show defendant is 

“indisputably ineligible for relief”].)

A petitioner is ineligible for relief under section 1170.95 as 

a matter of law if, like defendant, he was not convicted of felony 

murder or murder under a natural and probable consequences 

theory. (People v. Nguyen (2020) 53 Cal.App.5th 1154, 1166-

1167; see § 1170.95, subd. (a).) Here, the jury was never 

instructed regarding the felony murder rule or the natural and 

probable consequences doctrine, and defendant makes no claim in 

his briefs that there were such instructions. The trial court read 

to the jury CALJIC No. 3.01, which defines direct aiding and 

abetting a crime or attempted crime. CALJIC No. 3.01 instructs 

the jury that to find a person guilty as an aider and abettor, it 

must find that with knowledge of the perpetrator’s intent to 

commit the crime, and with the intent or purpose of committing 

or encouraging or facilitating the commission of the crime, the 

aider and abettor, by act or advice, aids, promotes, encourages or 

instigates the commission of the crime. The jury was also 

instructed regarding express and implied malice murder, malice

aforethought, transferred intent, deliberate and premeditated

murder, second degree murder, special circumstances for

multiple murder and intentional killing by an active criminal

street gang member. The record of conviction thus shows that 
8

defendant was convicted of murder as a direct aider and abettor, 

not under the felony murder rule or the natural and probable 

consequences doctrine. He is thus ineligible for relief as a matter 

of law. (See People v. Nguyen, supra, at p. 1167.)

Moreover, in convicting defendant of first degree murder as 

charged in count 2 of the information, the jury found true the 

special circumstance allegation that defendant intentionally 

killed the victim while defendant was an active participant in a 

criminal street gang (§ 190.2, subd. (a)(22)). This finding also 

makes defendant ineligible for relief under section 1170.95. 

(People v. Allison (2020) 55 Cal.App.5th 449, 460.)

Defendant argues that his defense at trial was that he 

thought his accomplices intended to commit a robbery, not 

murder, and points out that section 1170.95 provides for the 

admission of new evidence at the hearing to determine whether 

the defendant is entitled to relief. (See § 1170.95, subd. (d)(3). 

He concludes that with the appointment of counsel and further 

briefing, it was reasonably probable that counsel could have 

convinced the court to issue an order to show cause and grant a 

hearing at which new evidence may have supported his defense.

“Nothing in the language of section 1170.95 suggests it was 

intended to provide redress for allegedly erroneous prior 

factfinding. In particular, subdivision (a)(3) of section 1170.95 

says nothing about erroneous prior findings or the possibility of 

proving contrary facts if given a second chance. Rather, it 

requires that the petitioner could not be convicted of murder

because of the changes to sections 188 and 189, not because a 

prior fact finder got the facts wrong. The purpose of section 

1170.95 is to give defendants the benefit of amended sections 188 

and 189 with respect to issues not previously determined, not to 
9

provide a do-over on factual disputes that have already been 

resolved.” (People v. Allison, supra, 55 Cal.App.5th at p. 461.) 

Otherwise, “every convicted murderer who could make a prima 

facie showing (whatever that might be) that the prior findings 

were factually incorrect would be entitled to a bench trial de novo 

on those findings.” (Ibid.)

Both before and after the changes to sections 188 and 189, 

an aider and abettor could and still can be convicted of murder if 

he intentionally acted with express or implied malice, so long as 

malice was not “imputed to [the] person based solely on his or her 

participation in a crime.” (§ 188, subd. (a)(3).) Here, malice was 

not imputed to defendant solely based on his participation in the 

crimes. As discussed above, the instructions and verdicts show 

that he was convicted as a direct aider and abettor of murder who 

harbored his own intent to kill. Thus, the record of conviction 

shows that the allegation of defendant’s petition, that he could 

not now be convicted of first or second degree murder because of 

the changes to sections 188 and 189, like the allegation that 

defendant was convicted of felony murder or murder under the 

natural and probable consequences doctrine, is untrue. We 

conclude that the trial court did not err in summarily denying the 

petition.3

In addition, the trial court did not err in denying the 

petition without appointing counsel. Prisoners have no federal 

3 We did not find in the record of conviction any support for

the petition’s allegation that there has been a determination by a 

court or jury that defendant was not a major participant in the 

crime or did not act with reckless indifference to human life; and 

defendant has not argued here that such a determination has 

been made.
10

“constitutional right to counsel when mounting collateral attacks 

upon their convictions.” (Pennsylvania v. Finley (1987) 481 U.S. 

551, 555.) Under the federal constitution, the right to appointed 

counsel extends only to trial and the first appeal; and when 

states enact statutes to provide other postconviction relief, they 

have substantial discretion whether to develop and implement 

such programs.4 (Pennsylvania v. Finley, at pp. 557-559.) As 

defendant did not make a prima facie showing of eligibility under 

section 1170.95, the trial court was not required to appoint 

counsel. (See § 1170.95, subds. (c) & (d).)

DISPOSITION

The order denying the petition for resentencing is affirmed.

________________________, J.

CHAVEZ

We concur:

________________________, P. J.

LUI

________________________, J.

ASHMANN-GERST

4 In California, examples can be found in the rules governing 

petitions for writ of habeas corpus and coram nobis, which 

require the petition to state a prima facie showing of entitlement 

to relief before the court must appoint counsel. (See People v. 

Fryhaat (2019) 35 Cal.App.5th 969, 982.)