Filed 11/24/20 P. v. Alford CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C090909 Plaintiff and Respondent, (Super. Ct. No. 95F7246) v. ORDER MODIFYING OPINION THOMAS TEMPLE ALFORD, [NO CHANGE IN JUDGMENT] Defendant and Appellant.

THE COURT: It is ordered that the opinion filed on November 16, 2020, be modified as follows: In the first line of footnote two on page two, delete “defendant’s” and insert “the People’s” in its place.

This modification does not change the judgment.

BY THE COURT:

BLEASE , Acting P. J.

HOCH , J.

KRAUSE , J.

Filed 11/16/20 P. v. Alford CA3 (unmodified opinion) NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE, C090909 Plaintiff and Respondent, (Super. Ct. No. 95F7246) v. THOMAS TEMPLE ALFORD, Defendant and Appellant.

Defendant Thomas Temple Alford appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95,1 arguing the record does not establish, as a matter of law, that defendant was the actual killer, and that he received ineffective assistance of counsel. We disagree with both contentions and affirm.

On March 22, 2019, defendant filed a petition for resentencing under section 1170.95. Defendant declared the prosecution proceeded “under a theory of felony murder or murder under the natural and probable consequences doctrine,” he pleaded guilty to first or second degree murder in lieu of going to trial because he believed he could have been convicted of “1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine,” and he “could not now be convicted of 1st or 2nd degree murder.” He further declared he was not the actual killer.

The People filed a motion to deny the request for resentencing, indicating defendant was not eligible for relief, as he was the actual killer.3 Attached to the motion was the presentence probation report.

The trial court issued a tentative ruling in which it reviewed and considered defendant’s petition, the People’s motion, the probation report, complaint, information, plea form, sentencing minute order, and abstract of judgment. Noting defendant was the actual killer and was not prosecuted under a felony murder theory, the trial court found defendant had not shown he came within the provisions of section 1170.95 and was ineligible for relief under the statute. Accordingly, the trial court issued an order denying the petition.

DISCUSSION Defendant contends the trial court erred in finding defendant had not made a prima facie showing under section 1170.95 because the record did not establish, as a matter of law, that he was the actual killer. He argues this case presents a pure question of law as to whether a probation report is part of the record of conviction. Acknowledging that counsel did not object to the trial court’s consideration of the probation report, and anticipating this could result in a forfeiture of his claim, he also argues counsel was ineffective for failing to object to consideration of the probation report to establish he was the actual killer.

Senate Bill 1437 was enacted to “amend the felony murder rule and the natural and probable consequences doctrine, . . . 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

2018, ch. 1015, § 3.)

Senate Bill 1437 also added section 1170.95, which provides a resentencing petition process for a “person convicted of felony murder or murder under a natural and probable consequences theory.” (§ 1170.95, subd. (a).) After a defendant submits a petition and the court performs an initial review for missing information, subdivision (c) of section 1170.95 provides in part: “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 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served.” (§ 1170.95, subd. (c).)

As noted by the parties, defense counsel did not object to consideration of any of the records delineated by the trial court in its tentative decision, including the probation report. The failure of counsel to object on the basis that items of evidence are outside the record of conviction forfeits the claim on appeal that the trial court should not have considered the probation report as part of the record of conviction. (See People v. Roberts (2011) 195 Cal.App.4th 1106, 1130.)

Anticipating this conclusion, defendant also argues the failure to object to consideration of the probation report constituted ineffective assistance of counsel. “ ‘To establish ineffective assistance of counsel, a defendant must show that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the defendant.’ [Citations.]” (People v. Johnson (2015) 60 Cal.4th 966, 979-980.)4 The allegations of defendant’s resentencing petition were facially sufficient, but its factual representations are false. The record shows defendant was ineligible for 1170.95 relief as a matter of law.

Defendant was not charged with an underlying crime and was not charged or convicted of second degree felony murder or murder under the natural and probable consequences doctrine directed at accomplice liability. A review of the record of conviction shows defendant “could not meet the statutory prerequisites for even filing a section 1170.95 petition because he was not charged or convicted of second degree felony murder or murder under the natural or probable consequences doctrine directed at accomplice liability. Accordingly, the superior court’s summary denial was appropriate on this ground alone.” (People v. Edwards (2020) 48 Cal.App.5th 666, 674, italics omitted, review granted July 8, 2020, S262481.)

Moreover, the record of conviction demonstrates defendant was the actual killer.

Defendant was charged with second degree murder and personally using a firearm in the killing of his mother. The stipulated factual basis for the plea was the preliminary hearing, which is part of the record of conviction (People v. Reed (1996) 13 Cal.4th 217,

However, “there is no [federal] constitutional right to the effective assistance of counsel” in state postconviction proceedings. (People v. Boyer (2006) 38 Cal.4th 412, 489, superseded by statute on another ground; see Coleman v. Thompson (1991) 501 U.S. 722, 752 [115 L.Ed.2d 640, 671], superseded by statute on another ground.)

223) and demonstrates the murder involved a single perpetrator, i.e., defendant. (See People v. Tarkington (2020) 49 Cal.App.5th 892, 899, review granted Aug. 12, 2020, S263219.) Defendant admitted the murder and the personal use allegation. Thus, the record establishes defendant was the actual killer. (See People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410; Tarkington, supra, at p. 899.)

The trial court properly screened and denied defendant’s petition. The record establishes he is not entitled to relief under section 1170.95 as a matter of law. Thus, any error in counsel’s failure to object to the trial court’s consideration of the probation report would be harmless. That is, there is no “reasonable probability”—meaning “a probability sufficient to undermine confidence in the outcome”—“that, but for counsel’s [alleged] errors, the result of the [section 1170.95] proceeding would have been different,” and we therefore reject his claim. (Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].)

DISPOSITION The order denying defendant’s section 1170.95 petition is affirmed.

KRAUSE , J.

We concur:

BLEASE , Acting P. J.

HOCH , J.