People v. Tarkington

• Decision Date: 02 June 2020
• Docket Number: B296331
• Citation: 49 Cal.App.5th 892,263 Cal.Rptr.3d 469
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Anthony Lyle TARKINGTON, Defendant and Appellant.

49 Cal.App.5th 892

263 Cal.Rptr.3d 469

The PEOPLE, Plaintiff and Respondent,

v.Anthony Lyle TARKINGTON, Defendant and Appellant.

B296331

Court of Appeal, Second District, Division 3, California.

Filed June 2, 2020

Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters and Susan Sullivan Pithey, Assistant Attorneys General, Paul M. Roadarmel Jr., Stacy S. Schwartz, Idan Ivri, and Amanda V. Lopez, Deputy Attorneys General, for Plaintiff and Respondent.

Jackie Lacey, Los Angeles County District Attorney, Phyllis C. Asayama and Matthew Brown, Deputy District Attorneys; Ricardo D. Garcia, Public Defender of Los Angeles County, Albert J. Menaster, Deputy Public Defender; Erika C. Anzoategui, Alternate Public Defender of Los Angeles County, Michael Goodman, Deputy Alternate Public Defender; The Justice Collaborative, Kate L. Chatfield, Senior Advisor for Legislation and Policy, as Amici Curiae.

EDMON, P. J.

In 1997, defendant and appellant Anthony Lyle Tarkington was convicted by a jury of second degree murder, with a finding that he personally used a dangerous and deadly weapon, a knife. After passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), Tarkington petitioned for resentencing under Penal Code section 1170.95.¹ The trial court summarily denied the petition because Tarkington was the actual killer. Tarkington contends that the court's order must be reversed because the court improperly denied his petition without appointing counsel. We disagree and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND²

On June 22, 1996, Tarkington and the victim, Donald Fitzpatrick, became embroiled in a fistfight as they were waiting in line for free coffee and donuts in downtown Los Angeles. Tarkington fatally stabbed Fitzpatrick in the shoulder and the stomach. Consequently, Tarkington was charged with murder.

On August 25, 1997, a jury found Tarkington guilty of second degree murder. (§ 187, subd. (a).) It also found true the allegation that he personally used a deadly and dangerous weapon, a knife, in commission of the murder. (§ 12022, subd. (b).) Pursuant to the Three Strikes law (§ 667, subds. (b)–(i)), the trial court sentenced Tarkington to 46 years to life in prison.

On January 28, 2019, after passage of Senate Bill 1437, Tarkington filed a petition for resentencing under section 1170.95. Using a preprinted form, he checked boxes stating that a charging document had been filed against him allowing the prosecution to proceed under a felony murder theory or the natural and probable consequences doctrine; he was convicted of first or second degree murder under one of those theories; he could not now be convicted of murder in light of changes to the law wrought by Senate Bill 1437; he was not the actual killer, nor did he aid and abet the actual killer with the intent to kill; and he was not a major participant in the felony and did not act with reckless indifference to human life. He also checked a box stating, "I request that this court appoint counsel for me during this re-sentencing process."

On February 13, 2019, the trial court summarily denied the petition. Tarkington was not present and the court did not appoint counsel for him. The court's order stated, "In 1997, Tarkington was convicted of second degree murder for stabbing a man to death on June 22, 1996. The victim was waiting [in] line for free donuts and coffee in the Skid Row area of Los Angeles. Tarkington was convicted in part when DNA confirmed a spot of blood on his shoe was the victim's. [¶] As the actual killer, Tarkington is not entitled to relief under Penal Code § 1170.95. [¶] The petition for resentencing is unmeritorious and is denied."

Tarkington timely appealed.

DISCUSSION

Tarkington contends that the court erred by summarily denying his petition without appointing counsel for him. He urges that the failure to appoint counsel violated his statutory and constitutional rights, amounted to structural error, and requires reversal. We disagree.

1. Senate Bill 1437

Senate Bill 1437 was enacted to "amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) "Senate Bill No. 1437 achieves these goals by amending section 188 to require that a principal act with express or implied malice and by amending section 189 to state that a person can only be liable for felony murder if (1) the ‘person was the actual killer’; (2) the person was an aider or abettor in the commission of murder in the first degree; or (3) the ‘person was a major participant in the underlying felony and acted with reckless indifference to human life.’ (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2, 3.)"³ ( People v. Cornelius (2020) 44 Cal.App.5th 54, 57, 257 Cal.Rptr.3d 273, review granted Mar. 18, 2020, S260410 ( Cornelius ); People v. Verdugo (2020) 44 Cal.App.5th 320, 326, 257 Cal.Rptr.3d 510, review granted Mar. 18, 2020, S260493 ( Verdugo ).)

Senate Bill 1437 also added section 1170.95, which permits persons convicted of murder under a felony murder or natural and probable consequences theory to petition in the sentencing court for vacation of their convictions and resentencing. Section 1170.95 provides in pertinent part: "A person convicted of felony murder or murder under a natural and probable consequences theory" may file a petition "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 because of changes to Section 188 or 189 made effective January 1, 2019." ( § 1170.95, subd. (a).)

Section 1170.95 requires that the petition be filed in the sentencing court, and must include the petitioner's declaration showing eligibility, the case number, the year of conviction, and any request for counsel. ( § 1170.95, subd. (b) ; Verdugo , supra , 44 Cal.App.5th at p. 327, 257 Cal.Rptr.3d 510, rev.gr.) Subdivision (c) of the statute lists the next steps in the petition process thusly: "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[’s] 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."

Verdugo recently clarified the parameters of the statutory scheme, explaining that a court's evaluation of a section 1170.95 petition requires a multi-step process: an initial review to determine the facial sufficiency of the petition; a prebriefing, "first prima facie review" to preliminarily determine whether the petitioner is statutorily eligible for relief as a matter of law; and a second, postbriefing prima facie review to determine whether the petitioner has made a prima facie case that he or she is entitled to relief. ( Verdugo , supra , 44 Cal.App.5th at pp. 327–330, 257 Cal.Rptr.3d 510, rev.gr.; accord, People v. Torres (2020) 46 Cal.App.5th 1168, 1177–1178, 260 Cal.Rptr.3d 467 ; People v. Drayton (2020) 47 Cal.App.5th 965, 975–976, 261 Cal.Rptr.3d 335 [ § 1170.95 provides for two separate prima facie reviews, with the first focused on eligibility for relief and the second on entitlement to relief].)

In its initial review, the court determines whether any of the information required by section 1170.95, subdivision (b)(1) to be included in the petition is missing and cannot readily be ascertained by the court. If so, the court may deny the petition without prejudice to the filing of another petition containing the requisite information. ( § 1170.95, subd. (b)(2) ; Verdugo , supra , 44 Cal.App.5th at pp. 327–328, 257 Cal.Rptr.3d 510, rev.gr.) "This initial review thus determines the facial sufficiency of the petition." ( Verdugo , at p. 328, 257 Cal.Rptr.3d 510.)

The next step, a prebriefing "first prima facie review," is a "preliminary review of statutory eligibility for resentencing," akin to the procedure employed in a Proposition 36 or Proposition 47 context.⁴ ( Verdugo , supra , 44 Cal.App.5th at pp. 328–329, 257 Cal.Rptr.3d 510, rev.gr.; People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, 257 Cal.Rptr.3d 265, review granted Mar. 18, 2020, S260598 ( Lewis ).) The court must determine, based upon its review of readily ascertainable information in the record of conviction and the court file, whether the petitioner is statutorily eligible for relief as a matter of law, i.e., whether he was convicted of first or second degree murder based on a charging document that permitted the prosecution to proceed under the natural and probable consequences doctrine or a felony murder theory. ( Verdugo , at pp. 329–330, 257 Cal.Rptr.3d 510.) If not, the court can dismiss any petition filed by an ineligible individual. ( Id. at p. 330, 257 Cal.Rptr.3d 510.) "The court's role at this stage is simply to decide whether the petitioner is ineligible for...