A Previous Finding  of Major Participant Does Not Bar SB1437 Relief

People v. Strong (Cal., Aug. 8, 2022, No. S266606) 2022 WL 3148797

Summary: Strong was convicted of felony murder with findings as to special circumstance allegations that he was “major participant” who acted “with reckless indifference to human life.” He filed a petition for resentencing based on narrowing of felony-murder doctrine. The Superior Court denied his petition and he appealed. The Court of Appeal affirmed. The Supreme Court granted review.

The Supreme Court  held that:

• felony murder special-circumstance findings made before decisions that clarified terms “major participant” and “reckless indifference to human life” do not preclude prima facie case for resentencing, abrogating People v. Gomez, 265 Cal.Rptr.3d 366, People v. Secrease, 277 Cal.Rptr.3d 535, and disapproving People v. Galvan, 267 Cal.Rptr.3d 193, People v. Allison, 269 Cal.Rptr.3d 570;
• Strong was not required to seek an order setting aside special-circumstance findings before petitioning for resentencing;
• Strong was not collaterally estopped from relitigating whether he satisfied felony murder special-circumstance; and
• judicial review of the record for sufficient evidence supporting special circumstance would not be sufficient to determine whether defendant established prima facie eligibility for resentencing.

Reversed and remanded.

Senate Bill 1437 and the Felony Murder Rule

In Senate Bill No. 1437 the Legislature significantly narrowed the scope of the felony-murder rule. Resentencing was made available to defendants who neither killed nor intended to kill and were not “a major participant in the underlying felony [who] acted with reckless indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2.”  A finding a jury makes in felony-murder cases to determine whether the defendant may be sentenced to death or life without possibility of parole (Pen. Code, § 190.2, subd. (d))  was used to define eligibility for sentencing relief.

IStrong seeks resentencing even though the jury that convicted him of felony murder in 2014 also found true felony-murder special-circumstance allegations that he was a “major participant” who acted “with reckless indifference to human life” within the meaning of Penal Code section 190.2, subdivision (d). Strong  contends that the jury’s findings should not preclude him from making a prima facie showing of eligibility for relief because the findings were made before this court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522  (Clark), which for the first time provided substantial guidance on the meaning of the two relevant statutory phrases. The Supreme Court agreed reversing the  judgment of the Court of Appeal and remanding  for further proceedings.

Retroactive relied under SB 1437/ See Pen. Code, § 1172.6

Senate Bill 1437 also created a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended. Penal Code section 1172.6 provides for  the filing of a petition containing a declaration that all requirements for eligibility are met  including that “[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019,” the effective date of Senate Bill 1437.

When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition “to determine whether the petitioner has made a prima facie case for relief.”)

If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition. When a defendant has made a prima facie showing of entitlement to relief, “the court shall issue an order to show cause.” If there has been “a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.”  Additionally, the parties may stipulate that the petitioner is eligible for resentencing.  Otherwise, the court must hold an evidentiary hearing at which the prosecution bears the burden of proving, “beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder” under state law as amended by Senate Bill 1437. “A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” “If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (Ibid.)

When  Senate Bill 1437 amended Penal Code Section 189 to incorporate major participation and reckless indifference requirements, it codified the understanding of those requirements elucidated in Banks and Clark. Findings made after Banks and Clark ordinarily establish a defendant’s ineligibility for resentencing under Senate Bill 1437 and thus preclude the defendant from making a prima facie case for relief. If a jury has determined beyond a reasonable doubt that a defendant was a major participant who acted with reckless indifference to human life, as those phrases are now understood and as the Legislature intended them to be understood when incorporating them into Penal Code section 189, then that defendant necessarily could still be convicted of murder under section 189  as amended.

There are many petitioners with pre-Banks and Clark felony-murder special-circumstance findings who could not be convicted of murder today. Senate Bill 1437 requires petitioners seeking resentencing to make out a prima facie case that they “could not presently be convicted of murder or attempted murder because of changes to [Penal Code] Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(3).) A pre-Banks and Clark special circumstance finding does not negate that showing because the finding alone does not establish that the petitioner is in a class of defendants who would still be viewed as liable for murder under the current understanding of the major participant and reckless indifference requirements.

Because Strong’s case was tried before both Banks and Clark, the special circumstance findings do not preclude him from making out a prima facie case for resentencing under section 1172.6.

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