Filed 6/21/21 P. v. Taituave 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not 

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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.

MIKE TAITUAVE,

Defendant and Appellant.

B305271

(Los Angeles County

Super. Ct. No. NA081157)

APPEAL from an order of the Superior Court of 

Los Angeles County, Judith L. Meyer, Judge. Affirmed.

Thomas Owen, 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, Idan Ivri and Peggy Z. Huang, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Appellant Mike Taituave was convicted by a jury of 

conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1)),

1

five counts of attempted murder (§§ 664, 187, subd. (a)), and five 

counts of assault with a firearm (§ 245, subd. (a)(2)). The jury 

found true gang allegations on all counts (§ 186.22, subd.

(b)(1)(C)). The jury found all five attempted murders to be 

willful, deliberate, and premeditated. However, the jury did not 

find to be true the firearm (§ 12022.53, subds.(b), (c) & (d)) and 

great bodily injury (§ 12022.7, subd. (a)) enhancements.

Appellant was sentenced to a term of 90 years to life in 

state prison. The sentence was composed of six consecutive 15-

years-to-life terms on the conspiracy and the five attempted 

murder counts. The sentences on the assault counts were stayed 

pursuant to section 654. (People v. Taituave et al. (May 15, 2012, 

B225435) [nonpub. opn.] (Taituave).

Taituave appealed. The judgment was affirmed in 

Taituave, supra, B225435, with the exception that the sentence 

on the conspiracy to commit murder count was stayed under 

section 654, reducing his sentence to 75-years-to-life 

imprisonment. Appellant also received an additional 71 days of 

custody credit. (Taituave, supra, B225435.) The court corrected 

1 The actual verdict form for this count is missing from the 

clerk’s transcript but the form for the enhancements for this 

count is at page 24. There is no dispute about the conviction for 

this count.

Statutory references are to the Penal Code.
3

the stayed sentence on the murder conspiracy count to a term of 

25 years to life. (Ibid.)2

Appellant filed a petition for resentencing under section 

1170.95 on January 29, 2020. The superior court denied the 

petition summarily on February 5, 2020, without appointing 

counsel. The court gave as the reason for its denial that the 

“petitioner was NOT convicted of murder. This defendant was 

the shooter and was convicted of attempted murder.” Appellant 

filed a timely notice of appeal. We deem this appeal to be from an 

order after judgment affecting substantial rights. (§ 1237, subd.

(b).)

We conclude that appellant was not eligible for 

resentencing because he was not convicted of murder but only of 

attempted murder. Our conclusion is based on the plain text of 

subdivision (a)(2) and (3) of section 1170.95, which requires the 

applicant for resentencing to have been convicted of first or 

second degree murder. Because the fact of appellant’s conviction 

for attempted murder disqualifies him for relief as a matter of 

law, the superior court was empowered to conclude that appellant 

had not made a prima facie showing that he fell within the 

provisions of section 1170.95.3 Accordingly, we affirm the order 

denying appellant relief under section 1170.95.

Appellant also contends that his conviction for attempted 

murder must be reversed because under Senate Bill No. 1437

2 The trial court had erred as a matter of law in imposing a 

15-years-to-life term.

3 “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.” (§ 1170.95, subd. (c).)
4

(2017-2018 Reg. Sess.) (SB 1437) a conviction for attempted 

murder cannot be based on a natural and probable consequences 

theory. In addition, he contends that because he could have been 

convicted on a natural and probable consequences theory, he was 

entitled to a full hearing on his section 1170.95 petition. We 

explain below why we decline to address these two contentions.

FACTS

Appellant and respondent both rely on the summary of the 

facts set forth in Taituave, supra, B225435. Since the facts 

showing the commission of the multiple felonies are not material 

for the purposes of our decision, save to confirm that appellant 

was convicted of five attempted murders, we confine ourselves to 

an abbreviated statement of the operative facts.

The crimes at bar were the result of yet another conflict 

between two criminal street gangs. Appellant and two 

confederates were members of the Sons of Samoa (SOS) and the 

victims were affiliated in one way or another with the West Side 

Piru gang. The victims were four members of the Ho-Ching 

family, father Hoching (Joe), mother Maria, daughter Sheila, son 

Daniel, and Sheila’s cousin Faasooso Tautolo. (Taituave, supra, 

B225435.) The shootings, which were foreshadowed by SOS’s 

violent aggressions against the Ho-Ching family residence, 

occurred when Joe,4 accompanied by his wife, daughter, and 

Tautolo, went driving, looking worriedly for Daniel who himself 

was driving a car in the vicinity of the Ho-Ching residence. 

Appellant waylaid the car driven by Joe from between two parked 

cars, firing into the vehicle and hitting Joe and his wife multiple 

4 We use first names for clarity’s sake and not out of 

disrespect.
5

times; both required surgery and hospitalization. (Ibid.) Sheila 

and Tautolo were in the backseat, got down on the floor, and were 

not hit. Daniel, who happened to be following Joe at this point, 

was the target of three or four shots fired by appellant, with the 

shots hitting the car but not Daniel. (Ibid.)

In rejecting the claim that the evidence was insufficient to 

show that appellant was the shooter, the court in Taituave, 

supra, B225435, found that, in one way or another, Joe, Maria 

Sheila, and Daniel all identified appellant as the shooter. (Ibid.) 

Ample physical evidence (guns, ammunition, cell phone usage) 

corroborated the eyewitness identification of appellant. (Ibid.)

DISCUSSION

I. THE PLAIN MEANING OF SECTION 1170.95 

EXCLUDES ATTEMPTED MURDER FROM ITS 

COVERAGE

Section 1170.95 provides in relevant part: “(a) A person 

convicted of felony murder or murder under a natural and 

probable consequences theory may file a petition with the court 

that sentenced the petitioner to have the petitioner’s murder 

conviction vacated and to be resentenced on any remaining 

counts when all of the following conditions apply: [¶] (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 
6

because of changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1170.95, subd. (a)(1), (2) & (3).)

Two out of the three conditions for resentencing under 

section 1170.95 state explicitly that the petitioner must have 

been convicted of first or second degree murder. (§ 1170.95, subd. 

(a)(2) & (3).)

“Words used in a statute or constitutional provision should 

be given the meaning they bear in ordinary use. [Citations.] If 

the language is clear and unambiguous there is no need for 

construction, nor is it necessary to resort to indicia of the intent 

of the Legislature (in the case of a statute) or of the voters (in the 

case of a provision adopted by the voters).” (Lungren v. 

Deukmejian (1988) 45 Cal.3d 727, 735.)

Given that the Legislature knows that there is such a crime 

as attempted murder, the plain meaning of subdivision (a)(2) and 

(3) of section 1170.95 is that these provisions are limited to first 

and second degree murder and do not include attempted murder. 

It is manifest that if the Legislature had intended to include 

attempted murder in subdivision (a)(2) and (3) of section 1170.95, 

it certainly would have done so simply by listing it in addition to 

first and second degree murder.

The plain meaning of these provisions is buttressed by the 

fact that subdivision (a)(2) and (3) do not simply refer to “murder” 

but to first and second degree murder. If the reference would be 

only to “murder,” the argument could be made that all forms of 

murder were intended to be included. But that is not what the 

Legislature did. Under the principle expressio unius est exclusio 
7

alterius, the expression of one thing is the exclusion of another.

5

First and second degree murder are specifically listed, which 

means that other forms of homicide are excluded. This comports

with the plain meaning of the statute.

The court in People v. Flores (2020) 44 Cal.App.5th 985 

reached the same conclusion when it came to a conviction for 

manslaughter. The applicant had been convicted of 

manslaughter pursuant to a plea agreement. (Id. at p. 990.)

Citing subdivision (a)(2) of section 1170.95, the applicant 

contended that she had accepted a plea offer in lieu of a trial at 

which she could have been convicted for first or second degree 

murder. (Flores, supra, at p. 994.) The court rejected her 

argument, holding that “[h]ad the Legislature intended to make 

section 1170.95 available to defendants convicted of 

manslaughter, it easily could have done so” and that the “absence 

of any reference to manslaughter implies the omission was 

intentional.” (Flores, supra, at p. 993.) The applicant was found 

to be statutorily ineligible because manslaughter is not listed in 

section 1170.95, subd. (a). (Flores, supra, at pp. 990, 993, 997.)

People v. Cervantes (2020) 44 Cal.App.5th 8846 also 

concluded that a manslaughter conviction did not qualify the 

applicant for resentencing under section 1170.95, holding that 

the “decision not to include manslaughter in section 1170.95 falls 

within the Legislature’s ‘line-drawing’ authority as a rational 

5 For an application of this interpretative canon, see United 

Farm Workers of America v. Agricultural Labor Relations Bd. 

(1995) 41 Cal.App.4th 303, 316.

6 Requests for depublication were denied in both People v. 

Flores, supra, 44 Cal.App.5th 985, and People v. Cervantes, supra, 

44 Cal.App.5th 884.
8

choice that is not constitutionally prohibited” (Cervantes, supra, 

at p. 888), rejecting, as we do below, an equal protection 

challenge to section 1170.95.

We do not stop with the plain meaning of subdivision (a)(2) 

and (3) of section 1170.95. We go on to inquire whether these 

provisions are in conflict with companion legislation which were 

amendments to sections 188 and 189. As we discuss below, SB

1437 enacted sections 188 and 189. “But the ‘plain meaning’ rule 

does not prohibit a court from determining whether the literal 

meaning of a statute comports with its purpose or whether such a 

construction of one provision is consistent with other provisions 

of the statute. The meaning of a statute may not be determined 

from a single word or sentence; the words must be construed in 

context, and provisions relating to the same subject matter must 

be harmonized to the extent possible.” (Lungren v. Deukmejian, 

supra, 45 Cal.3d at p. 735.)

The question therefore is whether the plain meaning of 

section 1170.95, in requiring the petitioner to have been 

convicted of first or second degree murder, is consistent with 

recent amendments to sections 188 (“Malice, express malice, and 

implied malice defined”) and 189 (“Murder; degrees”). We turn to 

this next.

II. THE PLAIN TEXT OF SECTION 1170.95

IS NOT IN CONFLICT WITH THE AMENDMENTS

TO SECTIONS 188 AND 189

In 2018, SB 1437 added subdivision (a)(3) to section 188, 

which states: “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.”
9

SB 1437 also added subdivisions (e) and (f) to section 189. 

Subdivision (e) creates three exceptions to the rule against the 

imputation of malice. They are if the defendant is the actual 

killer, when the defendant, with the intent to kill, aided in the 

commission of murder in the first degree, and when the 

defendant is a major participant in the underlying felony and 

acted with reckless indifference to human life. Subdivision (f) 

provides that imputation of malice is permissible if the victim is a 

peace officer.

As we have had the occasion to recently observe in People v. 

Love (2020) 55 Cal.App.5th 273, 283–284, review granted

December 16, 2020, S265445, the amendments to section 188 and 

189 have had the effect of abrogating vicarious liability in the 

form of the natural and probable consequences theory in cases of 

murder. We will from time to time refer to this as the “no 

imputation of malice” rule. The question is whether vicarious 

liability has been abrogated for attempted murder as well.

The reviewing courts are of differing views on this subject, 

although the majority view appears to be that the abrogation of 

vicarious liability by SB 1437 does not apply to attempted 

murder. (People v. Munoz (2019) 39 Cal.App.5th 738, 753, review 

granted Nov. 26, 2019, S258234 [SB 1437 does not apply to

attempted murder]; People v. Lopez (2019) 38 Cal.App.5th 1087, 

1103, review granted Nov. 13, 2019, S258175 [does not apply]; 

People v. Dennis (2020) 47 Cal.App.5th 838, 844–847, review 

granted July 29, 2020, S262184 [does not apply]; People v. Larios 

(2019) 42 Cal.App.5th 956, 970, review granted Feb. 26, 2020, 

S259983 [does not apply]; People v. Alaybue (2020) 51 

Cal.App.5th 207, 222–225 [does not apply]; People v. Love, supra,

55 Cal.App.5th at p. 291, rev.gr. [does not apply]; People v. 
10

Medrano (2019) 42 Cal.App.5th 1001, 1015–1016, review granted

Mar. 11, 2020, S259948 [does apply]; People v. Sanchez (2020) 46 

Cal.App.5th 637, 642–644, review granted June10, 2020, S261768 

[does apply].)

Even though the reviewing courts are currently divided on 

whether the “no imputation of malice” rule applies to attempted 

murder, this controversy should have no impact on whether 

resentencing is limited to first and second degree murder. This is 

so because the concept of vicarious liability in attempted murder 

is a question independent of the plain meaning of subdivision 

(a)(2) and (3) of section 1170.95. There is no symbiotic, reciprocal

relationship between vicarious liability in attempted murder, on 

the one hand, and the limitation of resentencing to first and 

second degree murder by section 1170.95, on the other. These 

concepts operate independently of each other. That is, whether

attempted murder should or should not be divested of vicarious 

liability has no impact on what the plain language of section 

1170.95 currently provides.

Even if we assume for the purposes of discussion that the 

“no imputation of malice” rule is applied to attempted murder, we 

see no inconsistency in limiting resentencing to first and second 

degree murder. It is perfectly conceivable that attempted murder 

is divested of vicarious liability and resentencing is limited to first 

and second degree murder. We discuss this is as a rational 

legislative choice in the next section where we reject the claim 

that failure to include attempted murder in section 1170.95 is a 

violation of equal protection.
11

Section 1170.95 is very much a part of the changes wrought 

by SB 1437.7 Yet section 1170.95 limits resentencing to persons 

convicted of first and second degree murder. It is hard to escape 

the conclusion that the decision to limit resentencing to first and 

second degree murder was deliberate and made with full 

knowledge of the circumstance that malice can be a factor in 

other contexts as well, such as in attempted murder and 

voluntary manslaughter.

III. RESTRICTING RESENTENCING TO PERSONS

CONVICTED OF FIRST AND SECOND DEGREE 

MURDER DOES NOT VIOLATE THE EQUAL 

PROTECTION CLAUSE

Appellant contends that applying SB 1437 to first and 

second degree murder but not to attempted murder violates the 

equal protection clause. We conclude to the contrary.

The federal and California Constitutions guarantee that no 

person shall be denied the equal protection of the laws. (U.S.

Const., 14th Amend.; Cal. Const., art. I, § 7.) Equal protection of 

the laws means that similarly situated persons shall be treated in 

like manner unless there is a sufficiently good reason to treat 

them differently. (People v. Morales (2016) 63 Cal.4th 399, 408; 

Engquist v. Oregon Dept. of Agriculture et al. (2008) 553 U.S. 591, 

602; see People v. Chatman (2018) 4 Cal.5th 277, 287 [“our 

precedent has not distinguished the state and federal guarantees 

of equal protection for claims arising from allegedly unequal 

consequences associated with different types of criminal 

offenses”]; Johnson v. Department of Justice (2015) 60 Cal.4th 

7 SB 1437 also added section 1170.95. (People v. Alaybue, 

supra, 51 Cal.App.5th at p. 213.)
12

871, 881 [federal and state equal protection guarantees have 

similar interpretation].)

The first step in addressing an equal protection claim is to 

determine whether there are two groups of persons who are 

similarly situated for the purposes of the law being challenged 

but who are being treated differently. (Cooley v. Superior Court

(2002) 29 Cal.4th 228, 253.)

The question is whether persons convicted of attempted 

murder are similarly situated to persons convicted of murder. 

The answer is no. Murder and attempted murder are separate, 

distinct crimes. An attempt is an offense separate and distinct 

from the completed crime. (People v. Marinelli (2014) 225 

Cal.App.4th 1, 5.) It is also true that murder is punished more 

severely than attempted murder. (§ 190, subd. (a) [murder]; 

§ 664, subd. (a) [attempted murder].) The difference in penal 

consequences means that persons convicted of murder under the 

natural and probable consequences doctrine are not similarly 

situated to persons convicted of attempted murder. Since these 

two groups are not similarly situated, they may be treated 

differently by the Legislature.

This could end our analysis. However, it is possible to 

contend that the classification is not between persons convicted of 

attempted murder, on the one hand, and murder, on the other, 

but that the classification is of persons convicted of willful, 

deliberate, and premeditated attempted murder, on the one hand, 

and second degree murder, on the other. In this case, there is no

disparity in penal consequences. Second degree murder is 

punishable by 15 years to life (§ 190, subd. (a)), which was the 

punishment imposed in this case for willful, deliberate, and 

premeditated attempted murder.
13

Assuming that there are two groups of similarly situated 

persons, we must take the second step in the equal protection 

analysis and ascertain whether the Legislature has a 

constitutionally sufficient reason to treat the two groups 

differently (People v. Chatman, supra, 4 Cal.5th at p. 288), i.e., 

accord resentencing to one group and not to the other.

“The extent of justification required to survive equal 

protection scrutiny in a specific context depends on the nature or 

effect of the classification at issue. Unequal treatment based on a 

suspect classification such as race is subject to ‘ “the most 

exacting scrutiny.” ’ (People v. Wilkinson (2004) 33 Cal.4th 821, 

836.) So is treatment affecting a fundamental right.” (People v. 

Chatman, supra, 4 Cal.5th at p. 288.) In cases involving suspect 

classifications or fundamental rights, courts subject the 

classifications to strict scrutiny. Under the strict scrutiny 

standard, the state bears the burden of establishing not only that 

it has a compelling interest which justifies the law but that the 

distinctions drawn by the law are necessary to further its 

purpose. (Ibid.) Where the law challenged neither draws a 

suspect classification nor burdens fundamental rights, there is “a 

denial of equal protection only if there is no rational relationship 

between a disparity in treatment and some legitimate 

government purpose.” (Id. at pp. 288–289.)

The classification of persons based on their crimes of 

conviction is not a suspect classification. (Cf. People v. Wilkinson, 

supra, 33 Cal.4th at p. 838.)

While personal liberty is a fundamental right for purposes 

of equal protection (People v. Olivas (1976) 17 Cal.3d 236, 251), as 

we have had the occasion to observe in People v. Love, supra, 55 

Cal.App.5th at page 288, rev.gr., People v. Wilkinson, supra, 33 
14

Cal.4th 821 “clipped Olivas’s wings.” Specifically, in applying the 

rational basis standard to the difference between the crimes of 

battery on a custodial officer in the performance of his or her 

duties and battery on a custodial officer causing injury,8

Wilkinson held that Olivas does not require the courts to subject 

all criminal classifications to strict scrutiny. (Wilkinson, supra,

at p. 838.) Wilkinson went on to hold that a defendant does not 

have a fundamental interest in a specific term of imprisonment 

or in the designation a particular crime receives. (Ibid.) The 

Courts of Appeal anticipated Wilkinson on the inapplicability of 

the strict scrutiny standard of review. (People v. Bell (1996) 45 

Cal.App.4th 1030, 1049 [a broad reading of Olivas would 

“intrude[ ] too heavily on the police power and the Legislature’s 

prerogative to set criminal justice policy”]; People v. Mitchell 

(1994) 30 Cal.App.4th 783, 796 [“[d]etermining gradations of 

culpability . . . does not implicate the strict scrutiny test for 

equal protection purposes”]; People v. Silva (1994) 27 Cal.App.4th 

1160, 1167 [all criminal laws are not subject to strict scrutiny].)

Assuming, but only for the purposes of our discussion, that 

the “no imputation of malice” rule is extended to attempted 

murder, the issue is whether limiting resentencing to first and 

second degree murder, and excluding attempted murder 

convictions from this benefit, has a rational relationship to a 

legitimate governmental purpose.

The preservation of the government’s financial resources is 

a legitimate state interest. (People v. Chatman, supra, 4 Cal.5th 

at p. 290.) It has been estimated that the cost of SB 1437 in its 

8 The latter battery is punishable as either a misdemeanor 

or a felony, while the former is a felony.
15

current configuration is approximately $7.6 million. (People v. 

Lopez, supra, 38 Cal.App.5th at p. 1112, rev.gr.) It is also true 

that resentencing is an extraordinary step in the criminal process 

and not one that is frequently taken. Extending resentencing 

beyond first and second degree murder would entail additional 

expense and a greater burden on judicial resources. It is a 

rational decision to curtail resentencing as an extraordinary 

remedy for the very serious crime of murder in order to lessen the 

financial and administrative burden imposed by this reform.

In addition, there is no doubt that, on the whole, attempted 

murder entails lesser culpability than either first or second 

degree murder. It is a rational decision to reserve resentencing 

for convictions that are as burdensome as those for murder, 

especially when they are compared to convictions of attempted 

murder that can result in much lesser terms of five, seven, or 

nine years.

There is a rational relationship between the disparity in 

treatment and there are legitimate governmental purposes in the 

limitation of resentencing to first and second degree murder. 

There is therefore no violation of the equal protection clauses of 

the federal and California Constitutions.

It follows that even if the “no imputation of malice” rule is 

extended to attempted murder, the limitation of resentencing to 

first and second degree murder is a valid exercise of the state’s 

legislative power.

IV. APPELLANT DID NOT PRESENT

A PRIMA FACIE CASE FOR RESENTENCING

UNDER SECTION 1170.95

Appellant contends that he presented a prima facie case 

that he was eligible for resentencing and that, for this reason, the 
16

trial court erred in summarily denying his petition and in failing 

to appoint counsel. We disagree with all of these propositions.

One decision that has survived our Supreme Court’s grants 

of review that speaks to the issue of a prima facie case for 

resentencing under section 1170.95 is People v. Taylor (2019) 34 

Cal.App.5th 543.9 Taylor provides a working definition of what a 

prima facie case is for the purposes of section 1170.95: “Upon 

receiving a petition that is supported by the petitioner’s 

declaration that all three conditions are met and that makes a 

‘prima facie showing that the petitioner falls within the 

provisions of [section 1170.95],’ the sentencing court must issue 

an order to show cause. (§ 1170.95, subd. (c).)” (Taylor, supra, at 

p. 562.) (For the full text of subdivision (c) of section 1170.95, see 

footnote 10, post.)

The sensible rule that emerges from this, and the text of 

subdivision (c) of section 1170.95, is that if the applicant’s 

declaration shows that all three conditions of subdivision (a) of 

section 1170.95 have been met, the applicant has made a prima 

facie case that he or she is eligible for resentencing. By the same 

token, if the applicant fails to show that one or more of these 

conditions has been met, the applicant has not made a prima 

facie case.

In this case, appellant “checked the box” on the application 

form that states that he was convicted of first or second degree 

murder. However, that is simply not true.

9 Respondent lists six cases on this issue, all of which have 

been granted review.
17

Subdivision (c) of section 1170.95 makes two references to a 

“prima facie case.”10 The first reference focuses on “eligibility” 

for relief, while the second addresses “entitlement” to relief. 

(People v. Drayton (2020) 47 Cal.App.5th 965, 975.)

As far as making a prima facie case on the issue of

entitlement to relief, it has been held that the trial court should 

assume the facts stated in the 1170.95 petition to be true but the 

court “need not credit factual assertions that are untrue as a 

matter of law—for example, a petitioner’s assertion that a 

particular conviction is eligible for relief where the crime is not 

listed in subdivision (a) of section 1170.95 as eligible for 

resentencing.” (People v. Drayton, supra, 47 Cal.App.5th at 

p. 980.) The court went on to hold that the authority to make 

factual determinations “without conducting an evidentiary 

hearing pursuant to section 1170.95, subd. (d)[11] is limited to 

10 “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.” (§ 1170.95, subd. (c).)

11 “Within 60 days after the order to show cause has issued, 

the court shall hold a hearing to determine whether to vacate the 

murder conviction and to recall the sentence and resentence the 

petitioner on any remaining counts in the same manner as if the 
18

readily ascertainable facts from the record (such as the crime of 

conviction), rather than fact finding involving the weighing of 

evidence or the exercise of discretion.” (Drayton, supra, at 

p. 980.) As far as a prima facie case for eligibility is concerned, 

the court in People v. Drayton noted with approval the summary 

denial of the section 1170.95 application by People v. Flores, 

supra, 44 Cal.App.5th 985, on the ground that the applicant in 

that case was convicted of a crime not listed in section 1170.95, 

subdivision (a). (People v. Drayton, supra, 47 Cal.App.5th at p. 

976.)

We conclude that when, as here, the applicant cannot show 

that he or she was convicted of the crimes listed in section 

1170.95, subdivision (a), the applicant has not made a prima facie 

case for eligibility for relief.

People v. Verdugo (2020) 44 Cal.App.5th 320, 332–333, 

review granted March 18, 2020, S260493, held that counsel need 

not be appointed at the initial stage when the court determines 

whether the applicant is eligible for resentencing. We cite this 

holding for its persuasive value only. (Cal. Rules of Court, rule 

8.1115(e)(1).) We think it is persuasive in that there is no point 

in appointing counsel when review is limited to readily 

ascertainable facts from the record such as the crime of 

conviction. It is also true that the making of a prima facie case 

for eligibility is very simple, as long as the applicant has been 

convicted of first or second degree murder.

By way of analogies, the appointment of counsel in 

Proposition 47 cases appears to be limited to the resentencing 

stage and is not extended to the eligibility determination. 

petitioner had not been previously been sentenced.” (§ 1170.95, 

subd. (d)(1).)
19

(Cf. People v. Rouse (2016) 245 Cal.App.4th 292, 301.) Counsel in 

habeas corpus proceedings is appointed only upon the issuance of 

an order to show cause (Cal. Rules of Court, rule 4.551(c)(2)),

which means that there is no counsel for the initial stages in the 

evaluation of a petition for a writ of habeas corpus.

We conclude that counsel need not have been appointed 

before the court denied the application on the ground that 

appellant was not convicted of first or second degree murder and 

was therefore not eligible for resentencing.

Finally, the trial court’s statement that appellant was the 

shooter was not necessary for the court’s order denying the 

application. That order was based on the fact that appellant was 

not eligible for resentencing because he had not been convicted of 

first or second degree murder. We will disregard the reference to 

appellant as the shooter because it was surplusage and 

unnecessary for the trial court’s decision. Moreover, we review 

the court’s ruling and not the reason for the ruling and will 

affirm if the ruling is correct, even if the trial court’s reason for 

the ruling is wrong. (D’Amico v. Board of Medical Examiners

(1974) 11 Cal.3d 1, 19.)

V. WE DECLINE TO ADDRESS

APPELLANT’S REMAINING CONTENTIONS

The issue before us is a narrow one. It is whether 

appellant is eligible for resentencing even though he has not been 

convicted of first or second degree murder. Since the answer to 

this is in the negative, it is not necessary to proceed any further.

This is not a case where the issue of vicarious liability for 

attempted murder is raised in the direct appeal from the 

judgment, as it was in People v. Medrano, supra, 42 Cal.App.5th 
20

at p. 1007, rev.gr.

12 Unlike Medrano, the judgment in this case 

was final when the changes enacted by SB 1437 became effective.

Appellant’s contention that his conviction for attempted 

murder must be set aside because the conviction cannot be based 

on the natural and probable consequences theory is based on a 

misunderstanding of the procedural posture of this case. The 

issue before us is whether appellant is eligible for resentencing 

under section 1170.95. The issue is not whether appellant’s final 

conviction for attempted murder should be set aside in a 

collateral attack on the judgment based on the “no imputation of 

malice” rule of SB 1437. This appeal is not the forum for such a 

collateral attack. For the same reason, appellant’s contention 

that he was entitled to a hearing under section 1170.95 because 

he could have been convicted under the natural and probable 

consequences theory also ignores that the issue is whether he is 

eligible for resentencing under section 1170.95, not whether his 

conviction should be set aside because of the demise of the 

natural and probable consequences theory of liability. Appellant 

may have the makings of a collateral attack on his final 

judgment, but this appeal is not the vehicle for such an attack.

12 The Medrano court concluded that SB 1437 eliminated 

the natural and probable consequences theory for attempted 

murder prospectively and retroactively as to nonfinal convictions. 

(People v. Medrano, supra, 42 Cal.App.4th at pp. 1008, 1017–

1019, rev.gr.)
21

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.