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Felony-murder special-circumstance finding does not bar section 1170.95 relief.

People v. Secrease (Cal. Ct. App., Apr. 19, 2021, No. A158342) 2021 WL 1538008, at *1

 Summary:In 1998, a jury convicted Secrease of first degree murder and carjacking, finding true a special circumstance charge under section 190.2, subdivision (a)(17)(L) that the murder was committed during a carjacking. (§ 215, subd. (a).) He received a sentence of life in prison without the possibility of parole.

Secrease filed a verified section 1170.95 resentencing petition. The district attorney responded by filing a motion to deny the petition for failure to make a prima facie showing of eligibility for section 1170.95 resentencing relief, and Secrease filed a reply. The court denied the petition without issuing an order to show cause. Secrease appealed and the Court of Appealas decided whether a felony-murder special-circumstance finding by the jury that convicted Secrease in 1998 bars him from pleading a prima facie case for section 1170.95 resentencing relief as a matter of law. The Court agreed with the opinions that have held a prior felony-murder special-circumstance finding does not bar section 1170.95 relief.

No court has ever determined whether the felony-murder special-circumstance finding rendered against Secrease meets the minimum standards of personal culpability enunciated in People v. Banks (2015) 61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351 P.3d 330 (Banks) and People v. Clark (2016) 63 Cal.4th 522, 203 Cal.Rptr.3d 407, 372 P.3d 811 (Clark). The Court of Appeal held that he is entitled to such a determination before his section 1170.95 petition may be denied summarily. The Court remanded this case so the trial court to undertake a sufficiency-of-the-evidence review under those cases. If, upon review of the entire record of conviction, the court determines that the felony-murder special-circumstance finding rendered against Secrease in 1998 meets the standards of Banks and Clark, he will be barred from alleging prima facie entitlement to relief. If, on the other hand, the court concludes to the contrary and Secrease’s felony-murder special-circumstance finding fails that test, an order to show cause must issue and the case must be set for an evidentiary hearing.

Jury instructions on special circumstances

The jury was instructed under CALJIC No. 8.80.1 that the special circumstance could be found true under three scenarios:

  1. that Secrease was a major participant and acted with reckless indifference to human life in the carjacking (§ 190.2, subd. (d); People v. Estrada (1995) 11 Cal.4th 568, 46 Cal.Rptr.2d 586, 904 P.2d 1197 (Estrada))7;
  2. that Secrease was a direct aider and abettor in the murder and harbored the intent to kill (§ 190.2, subd. (c));
  3. that Secrease was the actual killer, in which case the special circumstance could be found true regardless of whether he had any intent to kill (§ 190.2, subd. (b)). (Secrease I, supra, A084777.)

The Court concluded that “[a] rational trier of fact ‘ “could have found the essential elements of the [special circumstance allegation] beyond a reasonable doubt” ’ ” under any of these three scenarios. (Ibid., quoting People v. Davis (1995) 10 Cal.4th 463, 509, 41 Cal.Rptr.2d 826, 896 P.2d 119.)

Senate Bill 1437 and changes to felony murder rule

Senate Bill 1437 amended the felony murder rule  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. Senate Bill 1437 also enacted section 1170.95 to provide some form of retrospective sentencing relief to eligible defendants. For any defendant who was “convicted of felony murder or murder under a natural and probable consequences theory,” section 1170.95, subdivision (a) authorizes petitions seeking vacatur of the conviction and resentencing on 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).)

Section 1170.95, subdivisions (b) and (c) set forth procedures that govern the initial screening of these resentencing petitions. After satisfying itself of the formal sufficiency of the petition (§ 1170.95, subds. (a)–(b)), the trial court “shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. 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[’s] 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).)10

“ ‘A prima facie showing is one that is sufficient to support the position of the party in question.’ ” (People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, 257 Cal.Rptr.3d 265, review granted Mar. 18, 2020, S260598, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851, 107 Cal.Rptr.2d 841, 24 P.3d 493; see BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1262, 245 Cal.Rptr. 682 [prima facie showing is “one which will suffice for proof of a particular fact unless contradicted and overcome by other evidence”].) The determination of prima facie entitlement to relief dictates whether an order to show cause issues and an evidentiary hearing is set. On this point, section 1170.95, subdivision (c) is phrased in mandatory terms. (§ 1170.95, subd. (c) [“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.”

At the evidentiary hearing, either party may present new or additional evidence probative of whether the petitioner may be validly convicted of murder under current law, and the prosecution bears the burden of proof under a reasonable doubt standard. (§ 1170.95, subd. (d)(3).)

Prima Facie Showing of Entitlement to Relief

Under the habeas standard of pleading practice, the trial court stands ready to reject any allegation of the petition that is conclusively refuted by the record of conviction, but otherwise accepts the allegations of the petition as true, and must proceed to “[a]n evidentiary hearing … if, after considering the verified petition, the return, any denial, any affidavits or declarations under penalty of perjury, and matters of which judicial notice may be taken, the court finds there is a reasonable likelihood that the petitioner may be entitled to relief and the petitioner’s entitlement to relief depends on the resolution of an issue of fact.” (Cal. Rules of Court, rule 4.551(f).)

The Petition and Allegations of Prima Facie Entitlement to Relief in This Case

 The felony-murder special-circumstance finding may rest on any of three theories, Secrease’s denial he was the actual killer or that he acted with intent to kill is not irrefutably rebutted by the felony-murder special-circumstance finding. There is a vicarious liability theory that is no longer valid  after the enactment of Senate Bill 1437—the old, broader version of felony murder—that may have persuaded at least some of the jurors.

At any section 1170.95, subdivision (d)(3) hearing, the prosecution may once again attempt to prove that Secrease is guilty of first degree murder as the actual killer, as a direct aider and abettor of murder, or as an aider and abettor of carjacking in which he was a major participant and acted in reckless disregard of a grave risk to human life. The Court’s holding  is that, based on the limited record before us, the jury’s felony-murder special-circumstance finding, by itself, is insufficient to justify denial for failure to make a prima facie case.

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