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Court may not dismiss resentencing petition under 1170.95 based on statement of facts in appellate court decision

THE PEOPLE, Plaintiff and Respondent, v. MARCOS ELI FLORES, Defendant and Appellant. (Cal. Ct. App., Mar. 29, 2022, No. F080584) 2022 WL 910096, at *1

Summary: In 2010 Flores pled no contest to the second degree murder (Pen. Code,1 § 187, subd. (a).) and the trial court sentenced petitioner to 36 years to life.
In 2019, Flores filed a petition for resentencing pursuant to section 1170.95. The trial court denied the petition on the ground petitioner had not set out a prima facie claim for relief.
On appeal, Flores asserts he established a prima facie claim for resentencing relief, and the court erred in denying the petition without issuing an order to show cause or holding an evidentiary hearing. The court of appeal agree with Flores reversed.
Trial court proceedings
Plea

On August 11, 2009, the Fresno County District Attorney filed a first amended information, charging Flores with Smith’s murder (§ 187, subd. (a)), with the allegation that a principal was armed with a firearm (§ 12022, subd. (a)(1)). The information also alleged that Flores suffered a prior serious felony conviction that also constituted a strike. (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d).)
On November 1, 2010, Flores entered a plea of no contest, pursuant to People v. West (1970) 3 Cal.3d 595, to second degree murder and admitted all enhancements and special allegations. The parties stipulated that the police reports and preliminary hearing transcripts provided a factual basis for the plea. On January 10, 2012, the court sentenced petitioner to a term of 30 years to life for the murder, plus five years for the prior serious felony conviction and one year for the vicarious arming enhancement.
Resentencing Petition under 1170.95
On February 25, 2019, Flores, in propria persona, filed a petition for resentencing pursuant to section 1170.95. In the form petition, stated that a complaint, information, or indictment was filed against him that allowed him to be prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine; he pled guilty or no contest to first or second degree murder in lieu of going to trial; and he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. Flores also requested that counsel be appointed to represent him during the resentencing process.
The People filed a motion to dismiss the petition on the ground petitioner was ineligible for resentencing because he was the actual killer. The People relied on the court of appeal’s factual summary in his co-defendant’s appeal, which stated that Flores testified at his co-defendant’s trial that he ran over the victim and the medical examiner testified that blunt force injuries were the cause of death. The People argued petitioner waived his appeal rights when entering his plea and this waiver barred his petition for resentencing.
November 19, 2019 hearing on the petition.
The court stated that petitioner did not qualify for resentencing because “he would have to prepare and petition the court with a prima facie case that he is entitled to relief, and the [c]ourt finds that he has failed to make that case other than just print out and fill out a form.” The trial court concluded petitioner was not entitled to relief, and granted the People’s motion to dismiss and also stated it was denying the petition on the merits.
Flores appealed.
Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) “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 participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill added section 188, subdivision (a)(3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) The bill added section 189, subdivision (e), amending the felony-murder rule:
“A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: (1) The person was the actual killer. (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.”6 (§ 189, subd.
The bill added section 1170.95 to provide a procedure for those convicted of a qualifying offense “to seek relief under the two ameliorative provisions above.” This procedure is available to persons convicted of “felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter.” (§ 1170.95, subd. (a).)
Section 1170.95 provides for filing a petition in the sentencing court averring that:
(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine[;]
(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder; and
(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.
If the court determines the petitioner has met his or her prima facie burden, “the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the petitioner on any remaining counts.” At the hearing, the prosecution must “prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” The court also “may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural history of the case recited in any prior appellate opinion.” To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing.
The Trial Court’s Reasoning was Erroneous
A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition then the court is justified in making a credibility determination adverse to the petitioner.
Here, the court denied the petition on the ground petitioner failed to make an unspecified showing beyond the factual allegations contained in the petition. The petition, however, was adequate under section 1170.95, subdivisions (a) and (b). The trial court was required to make a preliminary assessment of petitioner’s eligibility by determining whether the record of conviction conclusively refuted petitioner’s allegations. In failing to do so, the court erred. (See § 1170.95, subd. (c).)
Flores Established a Prima Facie Claim for Resentencing
Flores pled no contest to second degree murder. The court of appeal opinion the co-defendant’s appeal is not part of the record of conviction in Flores’s case. The factual summary in an appellate opinion is not evidence that may be considered at an evidentiary hearing to determine a petitioner’s eligibility for resentencing. (§ 1170.95, subd. (d)(3)
Flores adequately alleged a prima facie claim for relief and the record does not rebut his allegations as a matter of law.

 

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