Dismissal Of A Special Circumstance Is Equivalent to An Acquittal Under Felony Murder

People v. Hampton (Cal. Ct. App., Feb. 10, 2022, No. C093270) 2022 WL 405368, at *1

Summary: Hampton was found guilty of first degree murder and two counts of robbery and sentenced  to a term of 33 years to life The jury could not reach a verdict on the robbery-murder special-circumstance allegation, and that allegation was dismissed on the People’s motion for insufficient evidence.

Hampton filed a petition for resentencing under Penal Code section 1170.95 and requested appointment of counsel. The trial court granted the petition finding the dismissal of the special-circumstance allegation for insufficient evidence was equivalent to an acquittal. The People appeal contending the dismissal of the special-circumstance allegation was not an acquittal. The Court of Appeal affirmed the order granting the petition for resentencing.

Procedural Background of Original Trial

The jury was unable to reach a  verdict on the special circumstances allegation and the court declared a mistrial as to that allegation. The jury found Hampton guilty of first degree murder and two counts of robbery. After sentencing, the People stated move to dismiss the special circumstance charge for insufficient evidence and the trial court granted the motion.

Section 1170.95 Petition

In 2019, Hampton filed a petition for resentencing under section 1170.95. The trial court reviewed the section 1170.95 petition, found that he  had made a prima facie case, and set an order-to-show-cause hearing. The court requested briefing explicitly addressing the effect of the trial court’s order dismissing the special-circumstance allegation upon the jury’s inability to reach a verdict and at the request of the People.

Hampton argued the dismissal of the special-circumstance allegation for insufficient evidence on the People’s motion barred any relitigation of the issue as a violation of double jeopardy. Hampton also argued “the prosecution concluded, as a matter of law, that there was insufficient evidence to sustain the special circumstance allegation. They cannot now reverse course and assert the opposite.”

Senate Bill 1437 and felony murder

Senate Bill 1437 amended “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 bill amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability and added section 1170.95, which provides a procedure by which those convicted of murder premised on either a felony murder or natural and probable consequences theory can petition for retroactive relief, if the changes in the law would affect their previously sustained convictions; that is, if “[t]he petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.”

If the defendant makes a prima facie showing of eligibility for relief (§ 1170.95, subds. (b) & (c)), the court must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and resentence the defendant on any remaining counts (§ 1170.95, subd. (d)(1)). At the hearing the prosecution has the burden of proving beyond a reasonable doubt that the defendant is ineligible for resentencing.

Because Hampton was not the actual killer and did not act with intent to kill, to now be convicted of murder the prosecution was required to prove he  “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.” If there was a prior finding by a court or jury that defendant did not act with reckless indifference to human life or was not a major participant in the felony the court was required to vacate the conviction and resentence defendant. (§ 1170.95, subd. (d)(2).)

The trial court’s order that Hampton is entitled to relief qualifies as “[a]n order made after judgment, affecting the substantial rights of the people,” and is appealable under section 1238, subdivision (a)(5).

Dismissals under PC Section 1385 and acquittals

Section  1385 dismissals should not be construed as an acquittal for legal insufficiency unless the record clearly indicates the trial court applied the substantial evidence standard. (People v. Hatch (2000) 22 Cal.4th 260, 271, 273 (Hatch).) There are no “magic words” the court must use to demonstrate it has applied the substantial evidence standard, and the court need not restate the substantial evidence standard. But, the record must make it clear for the reviewing court that the trial court viewed the evidence in the light most favorable to the prosecution and found that no reasonable trier of fact could convict. “Insufficient evidence” is a term of art and — absent a contrary indication — means the evidence was insufficient to support a conviction as a matter of law. (Hatch, supra, 22 Cal.4th at p. 276)

Because the original trial court dismissed the case for insufficient evidence, this dismissal acted as the equivalent of an acquittal and the court properly granted the petition for resentencing under section 1170.95.