People v. Welch CA2/7

Filed 11/19/20 P. v. Welch CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN THE PEOPLE, B300338 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A799639-01) v. ANTHONY LEVELL WELCH, Defendant and Appellant. APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Michael Garcia, Judge. Affirmed. Jonathan E. Demson, 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, Supervising Deputy Attorney General, Charles S. Lee and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent. ___________________________ Anthony Levell Welch, who pleaded no contest to second degree murder in 1988, appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.95.1 Without appointing counsel or holding an evidentiary hearing, the superior court found Welch had failed to make a prima facie showing of eligibility for relief. On appeal Welch argues the court violated his statutory and constitutional rights by summarily denying his petition without appointing counsel and erred in finding he did not state a prima facie showing of eligibility for relief. In People v. Verdugo (2020) 44 Cal.App.5th 320, review granted March 18, 2020, S260493 (Verdugo), we rejected Welch’s argument regarding the procedures the superior court must follow once a section 1170.95 petition has been filed.2 We likewise reject Welch’s argument his constitutional right to counsel was violated. As for the finding Welch did not state a prima facie case of eligibility for relief, we are troubled by the superior court’s failure to articulate the reasons for its ruling and the lack of a record; however, because any error is harmless in this case, we affirm. 1 Statutory references are to this code. 2 The Supreme Court in Verdugo ordered briefing deferred pending its disposition of People v. Lewis (2020) 43 Cal.App.5th 1128, review granted March 18, 2020, S260598, in which briefing and argument are limited to the following issues: “(1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)?” 2 PROCEDURAL BACKGROUND In his petition for resentencing, filed March 7, 2019 on a downloadable form (see Verdugo, supra, 44 Cal.App.5th at p. 324 & fn. 2), Welch declared by checking boxes that he had pleaded guilty or no contest to first or second degree murder because he believed he could have been convicted of murder pursuant to the felony-murder rule or the natural and probable consequences doctrine and ...

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