People v. Cornelius

Filed 1/7/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B296605 (Super. Ct. No. F268843) Plaintiff and Respondent, (San Luis Obispo County)

v.

HAROLD TED CORNELIUS,

Defendant and Appellant.

A jury convicted Harold Ted Cornelius of second degree murder (Pen. Code,1 §§ 187, subd. (a), 189, subd. (b)) and found true allegations that he personally used a firearm (former § 12022.5, subd. (a)(1)) and that he personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). The trial court sentenced him to 40 years to life in state prison. Following the enactment of Senate Bill No. 1437, Cornelius filed a petition for resentencing pursuant to section 1170.95. The trial court denied his petition.

1 Further unspecified statutory references are to the Penal Code.

Cornelius argues the trial court erred when it denied his petition for resentencing without first appointing counsel. We affirm. FACTUAL AND PROCEDURAL HISTORY In 1998, Cornelius fatally shot his brother after an argument. The jury convicted Cornelius of second degree murder and found true the firearm allegations. The trial court sentenced him to 40 years to life in state prison. Cornelius appealed the conviction, arguing instructional error, an error in applying the firearm enhancement, and an error in presentence custody credits. We affirmed. (People v. Cornelius (June 20, 2000, B129641) [nonpub. opn.].)2 Following the enactment of Senate Bill No. 1437, Cornelius filed a petition for resentencing pursuant to section 1170.95. He requested appointment of counsel for resentencing. The trial court did not appoint counsel and denied Cornelius’s petition. The court found Cornelius was not eligible for resentencing “because he was convicted of second degree murder by a jury that also found he personally used and discharged a firearm in the commission of the murder within the meaning of [section 12022.53 and former section 12022.5, subdivision (a)(1)].” The court observed that section 1170.95, subdivision (a), applies to a person convicted of felony murder or murder under a natural and probable consequences theory; however, “Petitioner was not convicted” of either crime. Based on the verdict, the trial transcript and the prior appeal, the court found that Cornelius “failed to make a prima facie showing that he falls within the provisions of” section 1170.95.