Establishing a prima Facie Case for relief under SB 1437

People v. Lewis, 2020 WL 57841 (Cal.App. 2 Dist.) (Cal.App. 2 Dist., 2020)

 Appeal of trial court denial of petition for re-sentencing without appointment of counsel

 Defendant Vincent E. Lewis was convicted of first degree premeditated murder in 2012, his conviction was  affirmed on appeal in 2014. In January 2019, defendant filed a petition for resentencing under Penal Code 2 section 1170.95 and requested the appointment of counsel. The trial court, relying on the court of Appeal  decision in determined that defendant was ineligible for relief and denied the petition without appointing counsel or holding a hearing. Defendant appealed.

Defendant was tried under 3 possible theories of first-degree murder

Defendant and two codefendants were tried for the murder of a fellow gang member caused by one  of the codefendants firing the shots that killed the victim. The People prosecuted the case against defendant on three  first degree murder theories: direct aiding and abetting; aiding and abetting under the natural and probable consequences doctrine; and conspiracy. The prosecutor argued to the jurors that the evidence could support a verdict under each murder theory and that they did not have to agree on the same theory to return a guilty verdict. The court instructed the jury on each of the prosecution’s theories. The jury convicted defendant of first degree premeditated murder in a general verdict and made no findings that indicate which murder theory it relied upon. The court sentenced defendant to 25 years to life.

Chiu eliminates first-degree murder conviction for aider and abettor natural and probable consequences doctrine

 People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 (Chiu),  held that “an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. A conviction of first-degree murder must be based on direct aiding and abetting principles.”  Reversal is required unless the reviewing court concludes “beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder.” (Chiu, supra, 59 Cal.4th at p. 167, 172 Cal.Rptr.3d 438, 325 P.3d 972; see also In re Martinez (2017) 3 Cal.5th 1216, 1218, 226 Cal.Rptr.3d 315, 407 P.3d 1.)

Court of Appeal found defendant directly aided and abetted in the murder

 The court of Appeal held that the error was harmless “beyond a reasonable doubt” based on “strong evidence” that defendant “directly aided and abetted [the perpetrator] in the premeditated murder of [the victim]

SB 1437 eliminates natural and probable consequences

 In 2018, the Legislature enacted Senate Bill No. 1437  which amended section 188 to eliminate liability for murder under the natural and probable consequences doctrine and added section 1170.95, which establishes a procedure for vacating murder convictions that were based upon the natural and probable consequences doctrine and resentencing those convicted under that theory.

Trial court denies defendant’s petition for re-sentencing without appointment of counsel

 On January 7, 2019, defendant filed a petition in the superior court for resentencing under section 1170.95 asserting that he had been “convicted of [first or second] degree murder pursuant to … the natural and probable consequences doctrine.” Defendant stated in the petition  that, because of the changes made by Senate Bill No. 1437, he “could not now be convicted” because he “was not the actual killer” and “did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree.” Defendant also requested the court to appoint counsel for him.

On February 4, 2019, the trial court denied the petition without appointing counsel for defendant or holding a hearing. The court concluded that defendant was not eligible for resentencing because, based on the Court of Appeal  opinion, he “would still be found guilty with a valid theory of first degree murder.”

Defendant contends that the court erred by “going behind [the] allegations” in his petition and relying on our prior opinion to determine that he failed to make a prima facie showing of eligibility under Senate Bill No. 1437. For the reasons given below, we disagree.

Legal principles and analysis

 Section  1170.95 subdivision (a) provides that a person convicted of felony murder or murder under a natural and probable consequences theory may petition the trial court to have his or her murder conviction vacated or be resentenced on any remaining counts if the following conditions are met: (1) A charging document 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 or second degree murder following a trial or an accepted plea; and (3) The petitioner could “not be convicted of first or second degree murder because of changes to Section[s] 188 or 189” made by Senate Bill No. 1437. (§ 1170.95, subd. (a).)

Trial court’s role under SB 1437

 The trial court review the petition and determine if the petitioner has made a prima facie showing that he qualifies for relief. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served…. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” (§ 1170.95, subd. (c).)

If the court issues an order to show cause, it shall hold a hearing to determine whether to vacate the murder conviction. (§ 1170.95, subd. (d).) The prosecution has the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The prosecutor and petitioner “may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” If  the People establish, either based on the record of conviction or through new or additional evidence, that the defendant personally acted with malice, re-sentencing must be denied.

Defendant failed to establish a Prima  Facie case for re-sentencing

“A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Defendant contends that the court could look no further than his petition in evaluating his prima facie showing and the court  erred when it considered our opinion in his direct appeal. No published decision has addressed the question whether the trial court can consider the record of conviction in evaluating the petitioner’s initial prima facie showing under section 1170.95, subdivision (c). In analogous situations trial courts are permitted to consider their own files and the record of conviction in evaluating a petitioner’s prima facie showing of eligibility for relief.

The Court concluded that allowing  the trial court to consider its file and the record of conviction would prevent misuse of judicial resources  that would occur by appointing counsel in cases where even a cursory review of the court file would show as a matter of law that the petitioner is not eligible for relief. The Court of Appeal held that the record established that the jury found defendant guilty beyond a reasonable doubt on the theory that he directly aided and abetted the perpetrator of the murder. The issue whether defendant acted as a direct aider and abetter has thus been litigated and finally decided against defendant. (See generally 1 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Defenses, § 208, pp. 683–684 [collateral estoppel applies in criminal cases].) This finding directly refutes defendant’s conclusory and unsupported statement in his petition that he did not directly aid and abet the killer, and therefore justifies the summary denial of his petition

Defendant Was Not Entitled to Appointed Counsel

The requirement to appoint counsel as arises only after the court determines that the petitioner has made a prima facie showing that petitioner “falls within the provisions” of the statute, and before the submission of written briefs and the court’s determination whether petitioner has made “a prima facie showing that he or she is entitled to relief.” Here, the trial court denied defendant’s petition based upon his failure to make a prima facie showing that the statute applies to his murder conviction, so the  defendant was not entitled to the appointment of counsel.

Disposition

The court’s February 4, 2019 order denying defendant’s petition for resentencing is affirmed.