We are happy to announce that we have resumed normal office hours from 9:30 AM to 5:30 PM Monday through Thursday, to assist you with your essential legal matters and needs. For the short term we will remain closed on Fridays. We encourage clients to try and communicate with us by phone and email. If you do need to come into the office, we require face masks and we are maintaining social distancing.

1437 proceedings: At prima facie stage trial court should not determine facts to dismiss the petition

People v. Duchine (Cal. Ct. App., Feb. 9, 2021, No. A157980) 2021 WL 447105, at *1

Summary: John Allen Duchine was convicted of first degree murder in 1987. In 2019, he filed a petition for resentencing under Penal Code section 1170.95,1 [Senate Bill 1437 (S.B. 1437)] with a declaration asserting he was charged and convicted of first degree murder under a felony murder theory, but that he did not, with intent to kill, aid, abet or assist the actual killer in the commission of murder, and that he could not be convicted of first degree murder under the new murder statutes (amended sections 188 or 189). After appointing counsel for Duchine and reviewing briefs submitted by his counsel and the district attorney, the trial court denied the petition.

Duchine contends the trial court erred  by denying relief at the prima facie stage on the ground that there was substantial evidence from which a reasonable trier of fact could reach a guilty verdict of first degree murder by engaging in judicial fact-finding at the prima facie stage rather than holding an evidentiary hearing.

The Attorney General agrees with Duchine’s claims of error. The Court of Appeal reversed  and remanded with instructions to the trial court to issue an order to show cause and conduct an evidentiary hearing on Duchine’s petition.

Appellate Court Decision affirming Duchine’s convictions

In the appellate opinion affirming Duchine’s convictions, the court noted that his duress defense, if accepted, would have been a defense to robbery and burglary and negated a necessary element of felony-murder. The court stated that Duchine “was apparently convicted on a felony-murder theory,” but noted that because the jury rendered a general verdict finding Duchine guilty of first degree murder, “it is unclear whether he was found guilty on a felony-murder or on an aiding-and-abetting theory. Instructions on both theories were given.”

The S.B. 1437 Petition and Proceedings

In 2018, the Legislature amended the murder statutes to restrict murder liability based on felony murder or natural and probable consequences theories. Under section 1170.95, a person convicted of felony murder or murder under a natural and probable consequences theory is eligible to have his 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 because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)

Duchine’s pro per petition and declaration under section 1170.95 asserted that he was charged with and the jury was instructed on first degree premeditated murder, felony murder, murder under the natural and probable consequences doctrine, and aiding and abetting first degree murder; that he was convicted of first degree murder under the felony murder doctrine; and that he could not be convicted of first degree felony murder under the murder statutes, sections 188 and 189, as amended. He asserted that he “was not the actual killer”; and he “did not, with intent to kill, aid, abet, counsel, command, induce solicit, request, or assist the actual killer in the commission of murder in the first degree.”

S.B. 1437 and Section 1170.95

In People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972, the California Supreme Court held “that natural and probable consequences liability cannot extend to first degree premeditated murder because punishing someone for first degree murder when that person did not actually perpetrate or intend the killing is inconsistent with ‘reasonable concepts of culpability.’ ”

S.B. 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.’

The Issues Raised in This Petition

In People v. Drayton (2020) 47 Cal.App.5th 965, 261 Cal.Rptr.3d 335 (Drayton), the Sixth District held that at the prima facie stage of a resentencing petition the trial court should not decide unresolved factual issues  that involve credibility determinations or weighing of evidence. Rather, it should decide such issues only after issuing an order to show cause and holding an evidentiary hearing.

People v. Garcia (2020) 57 Cal.App.5th 100, 271 Cal.Rptr.3d 206 (Garcia),  rejected the limitations Drayton imposed on the trial court’s prima facie ruling. Division 6 of the Second District affirmed a trial court’s denial of resentencing at the prima facie stage. In doing so, it disagreed with the holding of Drayton that the trial court “ ‘should accept the assertions in the petition as true unless facts in the record conclusively refute them as a matter of law.’ ” (Garcia, at p. 116, 271 Cal.Rptr.3d 206; see also id. at p. 118, 271 Cal.Rptr.3d 206.)

Garcia also interpreted section 1170.95’s eligibility requirement in subdivision (a)(3) that the petitioner make a prima facie showing he or she “could not be convicted of first or second degree murder because of changes” as importing a “sustantial evidence standard” and as requiring a court to deny a petition if it concludes substantial evidence exists in the record on which a jury could have based a murder conviction on a valid theory had it been instructed on that theory. (Garcia, supra, 57 Cal.App.5th at pp. 116-118, 271 Cal.Rptr.3d 206.)

In view of the ameliorative purposes of S.B. 1437, the Legislature’s stated concerns about proportionality, fairness and excessive punishment, and its adoption of a trial court proceeding at which new evidence may be submitted and a criminal trial burden of proof beyond a reasonable doubt is applied, the Court of Appeal disagreed with cases like Garcia that interpret section 1170.95 to allow the trial court at the prima facie stage to resolve disputed facts or to answer only the question whether the existing record precludes a conviction on a murder theory that was never tried. By allowing new evidence and providing for an evidentiary hearing, the Legislature plainly intended that the issues concerning whether the defendant was guilty under theories of murder not previously or necessarily decided would be resolved anew, through a  process that provides due process to the petitioner.

The,Court agreed with the analysis of Justice Perluss of the Second District, who recently addressed the meaning of “could not be convicted” of murder under section 1170.95, subdivision (a)(3. (People v. Rodriguez (2020) 58 Cal.App.5th 227, 272 Cal.Rptr.3d 342 (Rodriguez).) He and the panel rejected the “appellate review standard, which asks whether a reasonable jury could find the petitioner could be convicted of murder under a still-valid theory” (id. at p. 240, 272 Cal.Rptr.3d 342) and instead concluded “section 1170.95 requires the prosecutor to prove beyond a reasonable doubt each element of first or second degree murder under current law to establish a petitioner’s ineligibility for relief under that statute.” (Id. at pp. 230-231, 272 Cal.Rptr.3d 342.) Looking to the purposes of S.B. 1437 to guide its interpretation of the statute, the Rodriguez court identified the Legislature’s expressed concern about “the disparity between individual culpability and punishment then existing under the natural and probable consequences doctrine and the felony murder rule” and its desire to “reform[ ] aider and abettor liability in homicide cases to more equitably sentence both past and future offenders in relation to their own actions and subjective mentes reae.” (Rodriguez, at p. 240, 272 Cal.Rptr.3d 342.) “That legislative goal,” the court reasoned, “is best effectuated by resentencing individuals convicted of first or second degree murder under the natural and probable consequences doctrine or the felony murder rule if the evidence, whether from the record of conviction alone or with new and additional evidence introduced at the subdivision (d)(3) hearing, fails to establish beyond a reasonable doubt they, in fact, acted during the crime with the now-required mental state. To deny resentencing simply because a jury could have found that they may have acted with express malice would frustrate the legislation’s purpose.” (Id. at pp. 240-241, 272 Cal.Rptr.3d 342.) Moreover, considering that section 1170.95, subdivision (d)(3) imposes the reasonable doubt standard on the prosecutor, which is “the standard of proof considered by the independent factfinder in a criminal trial,” the Rodriguez court opined, “It is unlikely the Legislature would have selected [that standard] if it had intended only an appellate-type review of the sufficiency of the evidence of the petitioner’s guilt on a still-viable theory, rather than requiring the prosecutor to actually establish the petitioner’s guilt under the newly amended statutes.” (Rodriguez, at p. 242, 272 Cal.Rptr.3d 342.)

The time for weighing and balancing and making findings on the ultimate issues arises at the evidentiary hearing stage rather than the prima facie stage, at least where the record is not dispositive on the factual issues. Without a record of conviction that conclusively establishes that the petitioner engaged in the requisite acts and had the requisite intent, the trial court should not question his evidence. The court may, as the Sixth District said in Drayton, consider the record of conviction at the prima facie stage, but may not evaluate the evidence, make credibility findings adverse to the petitioner, engage in factfinding or exercise discretion. (Drayton, supra, 47 Cal.App.5th at pp. 981-982, 261 Cal.Rptr.3d 335.) The record should be consulted at the prima facie stage only to determine “readily ascertainable facts,” such as the crime of conviction and findings on enhancements. Once the petitioner has made a prima facie showing, true factfinding should be reserved and exercised only after an order to show cause is issued and the parties are permitted to supplement the record with new evidence, including, if requested, through an evidentiary hearing. (Id. at pp. 980-981, 261 Cal.Rptr.3d 335.)

The Trial Court Erred.

The trial court engaged in judicial fact-finding on issues not conclusively resolved by the record of conviction at the prima facie stage of the petition proceedings. It decided that Duchine could theoretically have been found guilty under the major-participant-acting-with-reckless-indifference theory of felony murder that remains valid under S.B. 1437. It did so even though Duchine was not charged with, and the jury did not address, the special felony murder circumstance that entails proof of those two elements, and the record of conviction did not establish those elements as a matter of law. (See §§ 189, subd. (e)(3), 190.2, subd. (d).) The major participant and reckless indifference findings the trial court made based solely on the record evidence entail the weighing of evidence, drawing of inferences, and assessment of credibility that should be left to the factfinding hearing process contemplated by section 1170.95, subdivision (d). (Drayton, supra, 47 Cal.App.5th at p. 982, 261 Cal.Rptr.3d 335.) Duchine was entitled to a hearing at which the prosecutor would bear the burden to prove beyond a reasonable doubt, based on the record of conviction and any additional evidence the parties submitted, that he was guilty of murder under a theory still valid under California law.

The Court reversed the trial court’s order denying the petition and remanded with directions to issue an order to show cause under section 1170.95, subdivision (c) and hold a hearing pursuant to section 1170.95, subdivision (d) to determine whether to vacate Duchine’s murder conviction and recall his sentence and resentence him.

 

Contact Information