Natural and Prob. Consequences - Prettyman
Category > Natural and Prob. Consequences - Prettyman
Updated 6/1/2024The trial court erred in finding defendant was ineligible for section 1172.6 relief at the prima facie stage where multiple perpetrators were involved and finding defendant was the actual killer would have required impermissible judicial factfinding.The trial court erred in finding defendant was ineligible for Penal Code section 1172.6 relief at the prima facie stage. The evidence showed multiple people were involved, and relying on the preliminary hearing transcript to foreclose a successful section 1172.6 petition at this stage would require the court to engage in impermissible factfinding to determine defendant was the actual killer or a direct perpetrator.id: 28289
Updated 3/19/2024After finding defendant was eligible for section 1172.6 relief, the court erred in redesignating the murder conviction as residential burglary because that was not the felony underlying the felony-murder conviction.The trial court granted defendant’s petition for relief under Penal Code section 1172.6 and redesignated his conviction from murder to attempted robbery and first degree residential burglary. However, the conviction could not be redesignated as residential burglary because that was not the underlying felony for the felony-murder conviction.id: 28228
Updated 3/19/2024Defendant’s admission of guilt to voluntary manslaughter or an aiding and abetting theory did not render him ineligible for section 1172.6 relief.The trial court erred by denying defendant’s Penal Code section 1172.6 petition at the prima facie stage without an evidentiary hearing. While defendant admitted his guilt to voluntary manslaughter as an aider and abettor, he did not specify the aiding and abetting theory he was admitting. Nothing in the record established that he was admitting his guilt on a direct aiding and abetting theory.id: 28227
Updated 3/6/2024SB 1437 is valid as it does not add to, or take away from Prop 7 or Prop 115.In 2018, the Legislation passed SB 1437, which amended the mens rea requirements for murder and restricted the circumstances under which a person can be found liable for murder under the felony-murder rule or the natural and probable consequences doctrine. The prosecution argued SB 1437 invalidly amended Prop 7 and Prop 115, voter initiatives that increased the punishment for murder and augmented the list of predicate offenses for first degree felony-murder liability. However, SB 1437 is not invalid because it neither added to, nor took away from the initiatives.id: 26515
Updated 3/5/2024True finding on section 12022.53 (d) enhancement for intentional discharge of a firearm did not preclude relief under SB 1437.Defendants filed petitions under Penal Code section 1170.95 seeking a reversal of their murder convictions. They were found to be ineligible because they had received sentence enhancements under section 12022.53 (d) for intentionally discharging a firearm. However, the enhancement does not show the defendant acted with malice, and therefore does not preclude relief under SB 1437. Moreover, the court misinterpreted the record as to one of the defendants. The enhancement was based on section 12022.53 (e)(i) - the jury found that a principal, not the defendant, discharged the firearm.id: 26795
Updated 3/5/2024Where the juvenile court vacates a true finding on a generic murder allegation and redesignates it as a finding on the uncharged target offense, the minor can challenge the sufficiency of the evidence of the redesignated offense on appeal.Where a juvenile court vacates its true finding on a generic murder allegation and redesignates it as a finding on an uncharged target offense, and does so before the minor has had the opportunity to contest the court’s findings or orders, the minor may challenge the sufficiency of the evidence of the redesignated offense on appeal. Penal Code section 1170.95 (f) does not force a minor to choose between accepting a murder finding and loss of appellate rights. Moreover, the minor did not invite the error in this case by filing the section 1170.95 petition.id: 26802
Updated 3/4/2024Defendant stated a prima facie case for resentencing relief under section 1172.6 based on the instructions for aiding and abetting a lying-in-wait murder.In 2013, defendant was convicted of first degree murder but the jury was not instructed on the natural and probable consequences on felony murder doctrines. Nevertheless, the jurors could have imputed malice to him based on his participation in a crime, relying on the instructions for aiding and abetting a lying-in-wait murder. The trial court erred in finding he failed to establish a prima facie case for resentencing relief under Penal Code section 1172.6.id: 27607
Updated 3/4/2024SB 775 eliminates attempted murder under the natural and probable consequences doctrine. SB 775 eliminates the natural and probable consequences doctrine as a basis to prove an accomplice committed attempted murder. The prosecutor instructed on both direct aiding and abetting, and the natural and probable consequences to prove attempted murder. Because the record did not show which theory the jurors relied upon the conviction was reversed.id: 27801
Updated 3/4/2024Superior court used an incorrect standard in finding petitioner was ineligible for relief under section 1170.95.Penal Code section 1170.95 requires the prosecutor to prove beyond a reasonable doubt each element of first or second degree murder under current law to establish a petitioner’s ineligibility for relief under the statute. The superior court used an improper standard, concluding defendant was ineligible for relief under section 1170.95 because the record could support a finding of express malice murder beyond a reasonable doubt, rather than based on its own finding beyond a reasonable doubt that defendant would be guilty of murder under sections 188 and 189 as amended by SB 1437. The order denying the petition was reversed, and the matter remanded for a new eligibility hearing.id: 27125
Updated 3/4/2024Defendant who was convicted of murder with a felony-murder special circumstance was not required to get habeas relief under Banks/Clark before seeking the benefit of SB 1437.Defendant who was convicted of murder with special circumstance before the Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 61 Cal.4th 522, was not barred from pursuing resentencing under Penal Code section 1170.95 without having obtained a writ of habeas corpus to set aside the special circumstance for insufficient evidence. id: 27400
Updated 3/4/2024The trial court erred in relying on the jury’s intent to kill findings in connection with the special circumstances to conclude defendants were legally ineligible for section 1172.6 relief.Defendants filed a petition for resentencing under Penal Code section 1172.6. The trial court erred in deciding at the prima facie stage that the intent to kill findings by the jury precluded relief from the first degree murder convictions as a matter of law. Remand was necessary to allow the trial court to consider the trial record and assess the strength and credibility of the evidence.id: 27904
Updated 3/4/2024The jury’s intent to kill finding on the special circumstance didn’t render defendant ineligible for resentencing under section 1172.6.The trial court found defendant was ineligible for relief under Penal Code section 1172.6 because the jury found intent to kill as part of the gang-murder special circumstance. However, the intent to kill finding did not conclusively establish that defendant was ineligible for relief. Murder liability as an aider and abettor requires both a sufficient mens rea and a sufficient actus reus and a finding of intent to kill, viewed in isolation, establishes neither.id: 28148
Updated 3/4/2024Intent to kill findings in connection with the special circumstance did not render defendant ineligible for section 1172.6 relief at the prima facie stage. The trial court erred when denying defendant relief on his Penal Code section 1172.6 petition at the prima facie stage. The intent to kill finding in connection with the two special circumstances did not render defendant ineligible for relief as a matter of law. Because the court must consider the trial evidence and assess its strength, section 1172.6 required an evidentiary hearing.id: 28183
Updated 3/4/2024After granting the section 1172.6 petition the court should have resentenced defendant on the remaining charges and erred by redesignating the attempted murder convictions.The trial court granted defendant’s Penal Code section 1172.6 petition finding that he was not culpable for the attempted murders under the amended law where he served as the getaway driver. Because the jury convicted defendant of the target offenses of robbery, the court erred in redesignating the attempted murders as assault with a firearm, and in adding a conviction of evading a peace officer. The plain language of section 1172.6 required the court to resentence defendant on the remaining charges and did not permit the court to redesignate others.id: 28190
Updated 2/26/2024Defendant’s first degree murder conviction was reversed where he was prosecuted under three theories including the natural and probable consequences theory of aiding and abetting that was included in Chiu.Defendant was prosecuted for first degree murder under three theories, including the natural and probable consequences theory of aiding and abetting. The court instructed on all three theories. After trial, the state Supreme Court ruled in People v. Chiu (2014) 59 Cal.4th 155, that a person cannot be convicted of first degree murder under that theory. The prosecutor argued retrial was unnecessary because the record showed that the jury convicted under another valid theory. However, during deliberations the jury asked about the natural and probable consequences theory and returned a verdict shortly after that. Reversal of the conviction was required.id: 24691
Updated 2/26/2024A defendant can be convicted of first degree lying-in-wait murder under the natural and probable consequences doctrine. In People v. Chiu (2014) 59 Cal.4th 155, the court held that a defendant cannot be convicted of first degree premeditated murder as an aider and abettor based on the natural and probable consequences doctrine. Chiu does not apply to defendant who was convicted of lying-in-wait murderid: 26427
Updated 2/26/2024The trial court should have appointed counsel in SB 1437 proceedings despite the special circumstance allegation.The trial court erred in concluding as a matter of law that the record shows defendant was ineligible for relief under Penal Code section 1170.95 as he was a major participant in the robbery that led to the shooting, and acted with reckless indifference to human life. The jury’s special circumstance finding affirmed well before Banks and Clark did not preclude relief as a matter of law, and the trial court should have appointed counsel with orders for briefing.id: 27011
Updated 2/26/2024Defendant presented a prima facie case for section 1170.95 relief where the original sentencing court had struck the jury’s special circumstance findingsThe trial court found defendant had not set forth a prima facie for relief under Penal Code section 1170.95 because the jury’s special circumstance finding required that he personally harbored an intent to kill. However, the court erred by using those finding since the trial court struck those findings and entered a conviction for second degree murder at the time of sentencing. Defendant presented a prima facie case for relief and was entitled to a hearing on his section 1170.95 petition. id: 27508
Updated 2/26/2024While defendant pled guilty to premeditated murder on an unspecified theory, he did not admit that he acted with premeditation, and was therefore not ineligible for relief under section 1170.95 In 2013, defendant pled guilty to premeditated first degree murder and admitted that the murder was committed during a robbery. The information alleged the codefendant was the killer. While defendant admitted that he was guilty on an unspecified theory of premeditated and deliberate murder, he did not admit that he acted with premeditation, deliberation or an intent to kill. The trial court erred in denying his Penal Code section 1170.95 petition on this basis.id: 27505
Updated 2/24/2024Defendant presented a prima facie case for section 1170.95 relief where the original sentencing court had struck the jury’s special circumstance findings. The trial court found defendant had not set forth a prima facie case for relief under Penal Code section 1170.95 because the jury’s special circumstance finding required that he personally harbored an intent to kill. However, the court erred by using those findings since the trial court struck those finding and entered a conviction for second degree murder at the time of sentencing. Defendant presented a prima facie case for relief was entitled to a hearing on his section 1170.95 petition. id: 27507
Updated 2/24/2024The trial court erred in denying the section 1172.6 petition without a hearing where defendant never stipulated to the factual basis of the plea which noted defendant stabbed the victim.The trial court erred by denying defendant’s Penal Code section 1172.6 resentencing petition without conducting a hearing. While the stated factual basis for the plea, if true, demonstrated defendant stabbed the victim with the intent to kill, defendant didn’t stipulate to the factual basis or otherwise admit the truth of the facts recited by the prosecutor.id: 28113
Updated 2/23/2024Where a defendant was prosecuted for attempted premeditated murder under the natural and probable consequences doctrine, the jury needed to be instructed that it had to find the attempted premeditated murder was a natural and probable consequence of the crime of disturbing the peace.Defendant was convicted of attempted premeditated murder. The trial court’s instructions violated the Sixth Amendment under Alleyne v. United States (2013) 570 U.S. 99, because it allowed the jury to find the attempted murder was premeditated without requiring the jury to find that attempted premeditated murder was the natural and probable consequence of the target offense.id: 26774
Updated 2/23/2024SB 1437, which amended the felony-murder rule and limited the application of the natural and probable consequences doctrine as it relates to murder, is not unconstitutional.The trial court erred by finding SB 1437 to be unconstitutional. The provision does not improperly amend Prop 7 by changing the penalty for murder through indirect means. It did not improperly amend Prop. 115. It did not improperly conflict with the state constitution as described in Marsy’s Law. And it did not violate the separation of powers doctrine by infringing on the governor’s clemency power or the judiciary’s power to resolve specific controversies.id: 26790
Updated 2/23/2024SB 1437 is constitutional as it does not amend either Prop 7 or Prop 115.SB 1437 limits the circumstances under which a defendant can be found guilty under the felony-murder rule or the natural and probable consequences doctrine. The provision is not an invalid amendment to either Proposition 7 or 115 because it did not add to or take away from any part of either initiative.id: 26918
Updated 2/23/2024SB 1437 does not unconstitutionally amend Props 7, 9, 115 and does not violate the separation of powers doctrine.The trial court erred in finding SB1437, which amends the felony murder rule and the natural and probable consequences as it relates to murder, unconstitutionally amends Prop 7. Neither does the provision unconstitutionally amend Prop 115 or Prop 9 or violate the separation of powers doctrine.id: 26946
Updated 2/22/2024SB 1437 is not unconstitutional. The trial court erred in concluding that SB 1437 impermissibly amended Prop 7 and Prop 115.id: 26964
Updated 2/22/2024The trial court erred by reviewing the codefendant’s record of conviction in determining defendant’s eligibility for SB 1437 relief.Defendant pled no contest to second degree murder in 2011. He filed for resentencing under Penal Code section 1170.95 claiming that he was convicted under the natural and probable consequences doctrine. The trial court erred by looking at the record of conviction in the codefendant’s case when determining defendant’s eligibility. However, they had a joint preliminary hearing so the court did not err by reviewing that transcript. That transcript showed petitioner encouraged the shooter to commit the murder so he was not eligible for relief.id: 27095
Updated 2/22/2024Defendant was not entitled to counsel until the court found he made a prima facie showing of eligibility for SB 1437 relief.Defendant was not entitled to the appointment of counsel in SB 1437 proceedings until the court had determined he made a prima facie showing of eligibility. id: 27096
Updated 2/22/2024Denial of defendant’s section 1172.6 petition was reversed where he was not present at the evidentiary hearing.The trial court held an evidentiary hearing on defendant’s Penal Code section 1172.6 petition and found he was ineligible for resentencing. However, the order was reversed because he was entitled to be present at the hearing, which was a critical stage of the proceedings against him.id: 28105
Updated 2/7/2024The trial court erroneously engaged in factfinding without issuing an order to show cause and holding an evidentiary hearing when finding the defendant was ineligible for SB 1437 relief.A pre-Banks/Clark felony murder special-circumstance finding does not necessarily preclude relief under Penal Code section 1170.95. The trial court erred in finding defendant ineligible for SB 1437 relief based on a review of the factual summary of the appellate opinion affirming defendant’s original conviction, evidentiary conflicts at trial and the trial court’s findings at the sentencing hearing. The matter was remanded with directions to issue an order to show cause and proceed under section 1170.95 (d).id: 27236
Updated 2/7/2024SB 1437 applies to second degree murder.SB 1437 bars a conviction for second degree murder under the natural and probable consequences theory for aiding and abetting.id: 27141
Updated 2/4/2024Defendant who pled guilty to murder “with malice aforethought” is not ineligible for SB 1437 relief.A defendant who entered a plea to murder “with malice aforethought” is not categorically incapable of making a prima facie showing of eligibility for relief under Penal Code section 1170.95(c) because such a plea is not necessary or an admission that the crime was committed with actual malice. Moreover, a defendant who stipulates to a grand jury transcript as the factual basis of the plea may make a prima facie showing of eligibility for relief by identifying a scenario under which he or she was guilty of murder only under a now-invalid theory, even if the record of conviction does not demonstrate that the indictment rested on that scenario.id: 27265
Updated 2/4/2024Defendant may be eligible for SB 1437 relief if the special circumstance finding predated Banks and Clark.A felony-murder special circumstance finding made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 were decided did not preclude defendant from making a prima facie showing of eligibility for relief under Penal Code section 1170.95.id: 27385
Updated 2/4/2024Evidence supported a finding that defendant committed second degree murder on an implied malice theory, but that was insufficient to preclude SB 1437 relief as a matter of law.The trial court erred by denying defendant’s petition at the second stage of the Penal Code section 1170.95(c) analysis when it ruled that, although the jury was presented with two theories of liability - one valid (implied malice) and the other invalid (second degree felony murder) - substantial evidence supported a jury finding that defendant committed the killing with malice aforethought, and he was therefore ineligible for relief as a matter of law. id: 27294
Updated 2/4/2024A felony-murder special circumstance finding in 1998 did not bar defendant from pleading a prima facie case for SB 1437 relief as a matter of law.Because no court has found whether the felony-murder special circumstance finding rendered against defendant meets the minimum standards of personal culpability enunciated in People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522, he is entitled to such a determination before his Penal Code section 1170.95 petition may be summarily denied.id: 27290
Updated 2/4/2024The trial court erred by denying SB 1437 relief at the prima facie stage by finding there was evidence that could establish first degree murder, and by engaging in fact finding at that stage rather than conducting a hearing. Defendant was convicted of murder in 1987, and in 2019 filed a petition under Penal Code section 1170.95 (also known as SB 1437). The trial court erred by engaging in judicial fact-finding on issues not conclusively resolved by the record of conviction at the prima facie stage of the proceedings. It also erred by finding defendant could theocratically have been found guilty under the “major participant acting with reckless indifference” theory since defendant was not charged with the felony murder special circumstance. That finding should be left to the factfinding hearing process contemplated by section 1170.95.id: 27228
Updated 2/4/2024The jury’s unanimous rejection of the special circumstance allegation establishes the defendant’s entitlement to relief under section 1170.95 as a matter of law. A jury’s not true finding on a felony-murder special circumstance allegation constitutes a prior finding by a jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the underlying felony, thus triggering the superior court’s duty to vacate the murder conviction and resentence the defendant under Penal Code section 1170.95 as a matter of law.id: 27374
Updated 2/4/2024Felony-murder special circumstance true findings made before Banks and Clark do not preclude SB 1437 relief.A jury’s true finding in a felony-murder special circumstance allegation does not categorically preclude resentencing under Penal Code section 1170.95 where the true finding was made prior to People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. id: 27389
Updated 2/4/2024The trial court was required to issue an OSC following defendant’s 1170.95 petition where counsel conceded defendant was a major participant but there was no showing he acted with reckless indifference. Defendant filed a petition under Penal Code 478section 1170.95 alleging that he was convicted of murder or murder under the natural and probable consequences doctrine. Defense counsel conceded that he was a major participant in the offense. However, the record did not show, and the court did not determine that he acted with reckless indifference to human life. The court was required to issue an order to show cause and hold a hearing where the prosecution would have to prove defendant’s ineligibility.id: 27330
Updated 2/4/2024A defendant convicted of felony murder prior to SB 1437's effective date but sentenced after need not seek relief under section 1170.95. The trial court erred in denying defendant’s motion for new trial on the murder of conviction because prior to his sentencing date SB 1437 took effect and rendered his felony murder conviction invalid. A defendant in this situation need not seek relief under Penal Code section 1170.95. id: 27336
Updated 2/4/2024Evidence did not support the finding that defendant personally used a firearm during the 1992 murder where the jurors rejected the gun use allegation.In Penal Code section 1172.6 proceedings, the trial court erred in finding defendant personally used a firearm to commit the murder in 1992 where the jury in that trial found the allegation was not true. There was no new evidence of a firearm provided despite evidence that defendant was armed. However, there was other evidence supporting the finding that defendant was a major participant in the murder who acted with reckless indifference to life.id: 27647
Updated 2/4/2024The trial court may not include a sentence enhancement in the target offense or underlying felony when redesignating a conviction under Penal Code section 1172(6)(e).The trial court vacated defendant’s second degree murder conviction under former Penal Code section 1170.95. The court then erred by including within his newly predesignated conviction for attempted robbery a firearm enhancement that had originally been charged with that attempted robbery offense but was dismissed after he pled guilty solely to second degree murder.id: 27649
Updated 2/4/2024Evidence was insufficient to show defendant acted with reckless indifference to life where she was unarmed during the robbery and lacked knowledge that others would beat the victim.The trial court erred in denying defendant’s petition for resentencing under Penal Code section 1172.6 given the lack of evidence showing he acted with reckless indifference to human life. While defendant accompanied the others to the robbery, she was not armed and there was no evidence showing she had knowledge that her codefendant was armed or would beat the victim with a flashlight. There was no evidence that she had an opportunity to intervene on the victim’s behalf, and given her departure upon seeing the beating, her failure to call 911 was not dispositive.id: 27676
Updated 2/4/2024The trial court erred in denying defendant’s petition under section 1172.6 where it found the underlying crime to be attempted theft by false pretenses rather than attempted robbery.The trial court erroneously denied defendant’s petition for resentencing under Penal Code section 1172.6. Contrary to defendant’s claim, the trial court did indeed make independent findings following the hearing, and principles of collateral estoppel did not apply. However, the court’s findings reveal defendant committed the crime of attempted theft by fake pretenses rather than attempted robbery, and the former is not a predicate felony to felony murder.id: 27682
Updated 2/4/2024The evidence did not show defendant was a major participant acting with reckless indifference where he was armed and present at a robbery that was spontaneous and he did not encourage the codefendant to shoot the victim.Evidence did not support the trial court’s finding that defendant acted with reckless indifference to human life. While defendant was armed during the robbery and knew the codefendant was armed. There was no evidence that defendant had provided the codefendant with his gun or ordered him to fire at the victim. There was no evidence that defendant’s gun was loaded or that he knew the codefendant’s gun was loaded, and he didn’t even learn the codefendant was armed until shortly before the robbery. Moreover, defendant’s presence at the crime was neutral. Next, the evidence did not show the robbery was prearranged and things happened quickly.id: 27582
Updated 2/3/2024Erroneous denial of section 1172.6 petition at the prima facie stage required remand for an evidentiary hearing.The trial court erred by denying defendant’s resentencing petition because he demonstrated prima facie eligibility for relief. His felony murder special circumstance conviction did not necessarily render him ineligible for relief because it occurred before the Banks and Clark cases that narrowed the terms for “major participant” and “reckless indifference.” There is no harmless error analysis here and the issue was remanded for an evidentiary hearing.id: 27693
Updated 2/3/2024Dismissal of the special circumstance allegation was the equivalent of an acquittal for purposes of Penal Code section 1170.95. Defendant was convicted of murder and robbery in 2009. The jury could not reach a verdict on the robbery-murder special circumstance allegation, and that allegation was then dismissed for lack of evidence. This dismissal was the equivalent of an acquittal. The trial court properly granted defendant’s Penal code section 1170.95 motion. id: 27789
Updated 2/3/2024Denial of defendant’s section 1170.95 motion was reversed to allow the court to consider defendant’s youth in determining whether he was a major participant. The denial of defendant’s request for resentencing was reversed where the trial court’s ruling ruling occurred before People v. Moore (2021) 68 Cal.App.5th 434 was published, and it could not be presumed from the record that the trial court considered evidence of defendant’s youth (a relevant factor under Moore) in deciding whether defendant was a major participant who acted with reckless indifference to human life.id: 27668
Updated 2/3/2024Defendant was entitled to section 1170.95 relief as a matter of law where the court at the 2002 bench trial found he did not act with reckless indifference to human life. Defendant was convicted of murder as an aider and abettor at a 2002 bench trial where the court found that he did not act with reckless indifference to human life. The trial court erred in denying his Penal Code section 1170.95 petition at the prima facie stage, and he was entitled to relief as a matter of law. id: 27756
Updated 2/3/2024Evidence that defendant recruited an armed gang member who later stabbed the victim was sufficient to support a bind over for direct aiding and abetting of implied malice murder. Even after SB 1437, an aider and abettor who acts with implied malice can be guilty of murder entirely apart from the natural and probable consequences doctrine. Following a challenge at the taco shop, defendant armed with a screwdriver recruited a known gang member who was armed with a knife and stabbed a 19 year-old whose arm was in a sling just inches above his heart. This evidence presented at the preliminary hearing was sufficient to bind over defendant on a direct aiding and abetting theory of implied malice murder. id: 27757
Updated 2/3/2024Following SB 775, case was remanded to see whether defendant was entitled to section 1170.95 resentencing for his attempted murder conviction. In 2020, defendant filed a motion for resentencing of his attempted murder conviction under Penal Code section 1170.95. The court summarily denied the petition since section 1170.95 did not apply to attempted murder convictions. During the pendency of the appeal, section 1170.95 was amended by SB 775 to expressly permit resentencing for certain attempted murder convictions. Defendant’s case remanded for a determination as to whether defendant made a prima facie case. id: 27760
Updated 2/3/2024The trial court erred in summarily denying section 1170.95 relief for defendant who was convicted of murder due to a punch thrown by someone else even absent instructions on the natural and probable consequences theory. Defendant was one of four men who beat and robbed a group of people that included the victim who was punched, fell to the ground and later died from a head injury. Defendant was convicted of murder. He argued in a Penal Code section 1170.95 petition that another member of his group threw the fatal punch and he was entitled to relief. Even though the trial court did not instruct on the natural and probable consequences theory, the instructions were ambiguous and allowed the jury to convict defendant of murder under a theory under which malice was imputed to him based solely on his participation in a crime. The trial court erred in summarily denying his petition. id: 27766
Updated 2/3/2024Attempted murder conviction was reversed in a case where an innocent bystander was shot in a drive-by shooting where instructions were like the kill zone theory instructions rejected in Canizales. Defendant was driving a car where another occupant fired shots that struck an innocent bystander. He was convicted of attempted murder. The court gave an instruction that was akin to the improper kill zone theory that was invalidated in People v. Canizales (2019) 7 Cal.5th 591. The instruction allowed the jury to use circumstantial evidence to infer an intent to kill the victim when the same circumstantial evidence supported a reasonable inference of no intent to kill. The attempted murder conviction was reversed but since there was evidence to support the conviction under a different theory the prosecution can retry the defendant.id: 27768
Updated 2/3/2024The gang-murder special circumstance finding did not render the Chiu error harmless.The trial court erred by instructing the jury on the natural and probable consequences theory of aiding and abetting first degree murder, which was found to be invalid in People v. Chiu (2014) 29 Cal.5th 155. The gang-murder special circumstance finding, by itself, did not show the Chiu error was harmless. That analysis requires a court to rigorously review evidence to determine whether any rational juror who found the defendant guilty based on an invalid theory, and made findings reflected in the jury’s verdict would necessarily have found the defendant guilty based on the valid theory as well.id: 27722
Updated 2/2/2024The trial court erred in denying defendant’s section 1172.6 petition finding he was guilty of implied malice murder without asking the questions to support that theory.Defendant was convicted in 2004 of second degree murder in a case where the prosecutor asserted the natural and probable consequences theory of aiding and abetting. He later filed a petition under Penal Code section 1172.6 alleging that he was convicted under a theory that’s no longer valid. The court denied his petition finding he was guilty of implied malice murder. However, the trial court didn’t ask the necessary questions that would allow it to reach that conclusion, and it therefore erred in denying defendant’s petition.id: 27901
Updated 2/1/2024Retroactive application of SB 1437 required reversal where invalid instructions on felony murder were not harmless given defendant’s lack of knowledge that the others had lethal weapons.The trial court instructed on three potential theories of murder, including the felony murder theory that was later invalidated. Such error is harmless where it would be impossible, based on the evidence, for a jury to make the findings reflected in the verdict without also making the findings that would support a valid theory of liability. The error was not harmless here where defendant knew the others might have had weapons (like screwdrivers) but the evidence did not show he knew before the attack that anyone actually had a lethal weapon like the one used to kill the victim. There was no evidence that defendant possessed a weapon, supplied others with a weapon or expressed an intent to use lethal force.id: 27913
Updated 2/1/2024The trial court erred at the section 1172.6 proceedings in finding that defendant stabbed the victim to death after the jury rejected the allegation that he personally used a knife.Defendant was convicted of murder in 1992. The jury found the personal knife use allegation to be not true. The trial court erred in denying his subsequent Penal Code section 1172.6 petition finding he could be convicted as the actual killer because of the strong evidence suggesting he stabbed the victim.id: 27916
Updated 2/1/2024The trial court erred in denying section 1170.95 relief based on defendant’s weapon possession to show he was a major participant when he had been acquitted of the weapon possession.Defendant filed a petition under Penal Code section 1170.95 seeking to vacate an earlier murder conviction that was based on felony murder. The trial court relied on the trial transcripts to find defendant was a major participant in the killing who acted with reckless indifference to human life. It did so based on its belief that defendant possessed and fired a gun. However, the jury had acquitted defendant of the firearm-possession offense. The trial court erred in denying section 1170.95 relief based on findings that were inconsistent with the prior acquittal.id: 27962
Updated 2/1/2024SB 775 allows the challenge under SB 1437 to be raised on direct appeal.Following SB 775, defendant could raise his SB 1437 challenge on direct appeal. Defendant was entitled to relief given that the state prosecuted his murder charge under the natural and probable consequences doctrine. The prosecution was entitled to retry defendant on the murder charge based on a valid theory of liability if it can do so in good faith.id: 27963
Updated 1/31/2024The trial court erred by redesignating robbery as the basis for defendant’s conviction after granting a relief under section 1172.6.The trial court redesignated robbery as the basis for defendant’s conviction after granting his petition to vacate the murder conviction under Penal Code section 1172.6. However, the ruling violated defendant’s due process rights because he was not given notice that the court might take this action. Moreover, the evidence didn't support the robbery conviction as it was based primarily on the probation report which had summarized numerous police reports, and contained layers of hearsay.id: 28050
Updated 1/31/2024After granting defendant relief under section 1172.6, the court should have applied his excess custody credits to satisfy his restitution and parole revocation fees.The trial court granted defendant’s request for relief under Penal Code section 1172.6. The court thereafter resentenced defendant to three years on the target offense of aggravated assault. Defendant’s excess custody credits should be applied in satisfaction of his restitution and parole revocation fees under the version of Penal Code section 2900.5, effective at the time of the crime. However, the excess credits need not also offset nonpunitive assessments and parole.id: 28067
Updated 1/29/2024Defendant convicted under an older form of provocative act murder was not ineligible for section 1172.6 relief.At the time of defendant’s murder conviction, a person could be convicted for a killing by a third party provoked by an accomplice’s actions with malice aforethought, regardless of the defendant’s mental state. Therefore, defendant may have been convicted under a theory of imputed malice, and thus he was not barred as a matter of law from relief under Penal Code section 1172.6.id: 28094
Updated 1/29/2024After the court granted defendant’s section 1172.6 petition, he was entitled to retroactive application of AB333, and his gang conviction was reversed.Once defendant’s Penal Code section 1172.6 petition was granted and his murder conviction was vacated, the judgment was no longer final, he was entitled to the ameliorative benefits of AB333, and his conviction for gang participation under Penal Code section 186.22(a) was reversed.id: 28097
The true finding on the special circumstance allegation did not render defendant automatically ineligible for relief under SB 1437.In 2001, defendant was convicted of first degree murder along with a robbery murder special circumstance finding. In 2019, he petitioned for resentencing pursuant to Penal Code section 1170.95, and newly enacted SB 1437. The trial court erred by summarily denying the petition after ruling the special circumstance finding rendered defendant ineligible for relief. Under People v. Banks (205) 61 Cal.App.4th 788, such a finding is not alone sufficient to preclude relief. However, a court may summarily deny a petition based on the record of conviction. The matter was remanded for a determination of whether defendant was potentially eligible for resentencing under section 1170.95.id: 26717
SB 1437 is constitutional.SB 1437 limits the application of the felony murder rule and murder based on the natural and probable consequences doctrine by modifying the mens rea element of those crimes. It does not modify any prior initiative and is not unconstitutional.id: 26703
The natural and probable consequences doctrine cannot prove attempted murder.SB 1437 abrogates the natural and probable consequences doctrine in attempted murder prosecutions. Defendant was prosecuted under both a valid direct aiding and abetting legal theory and the invalid NPC theory. Since the theory used by the jury to convict could not be determined, the attempted murder conviction was reversed.id: 26701
SB 1437 applies to attempted murder convictions but section 1170.95 provides no relief to persons convicted of attempted murder. (147) SB 1437, which abrogates the natural and probable consequences doctrine as a theory of accomplice liability in murder cases, applies to attempted murder as well. However, Penal Code section 1170.95 does not provide relief to persons convicted of attempted murder whose convictions are final on appeal.id: 26554
SB 1437 applies to attempted murder as well as murder, and relief is available in the direct appeal.SB 1437 not only abrogated the continuing application of the of the natural and probable consequences doctrine to murder charges, but also as to attempted murder charges premised on that doctrine. However, the petitioning procedure provided in Penal Code section 1170.95 does not apply to attempted murder and relief should be available through the direct appeal.id: 26553
SB 1437 did not invalidly amend Prop 7 or Prop 115.SB 1437, which amended the mens rea requirement for murder and restricted the circumstances under which a person can be liable for felony-murder or murder under the natural and probable consequences doctrine, did not invalidly amend earlier initiatives including Propositions 7 or 115.id: 26518
The trial court erred in summarily dismissing defendant’s SB 1437 petition, and the felony murder conviction was vacated given an earlier finding that defendant was not a major participant acting with reckless disregard. Defendant filed a petition under Penal Code section 1170.95 seeking to have his 2003 murder conviction vacated. He satisfied all of the requirements, but the trial court failed to require a response or hold a hearing. The trial court also disregarded the prior finding that defendant was not a major participant in the robbery who acted with reckless disregard for human life. Given that finding, the trial court was required to vacate the conviction and resentence defendant.id: 26493
The trial court committed Chiu error but the error was harmless where the verdicts show the jurors convicted defendants as direct aiders and abettors. The trial court erred under People v. Chiu (2014) 59 Cal.4th 155, by instructing that an aider and abettor or conspirator who did not intend to kill could be convicted of first degree murder under the natural and probable consequences doctrine. However, the error was harmless where the verdicts show the jury convicted defendant under the legally correct theory of direct aiding and abetting.id: 26111
First degree murder conviction was reversed where it was unclear whether the conviction was based on the natural and probable consequences theory. Defendant handed a gun to a fellow gang member who shot and killed a rival gang member. He was convicted of first degree premeditated murder after the jury was instructed on two derivative liability theories: direct aider and abettor liability, and the natural and probable consequences theory. In People v. Chiu (2014) 59 Cal.4th 155, the court found the latter can no longer support a premeditated murder conviction. Because it was not clear which theory the jury relied on, his first degree murder conviction was vacated, and the prosecution may retry him for first degree murder or accept a second degree murder conviction.id: 25878
Chiu error requires reversal unless the reviewing court concludes beyond a reasonable doubt that the jury actually relied on the legally valid theory.Defendant was convicted of first degree murder after the jury was instructed on both a direct aiding and abetting theory and a natural and probable consequences theory. The latter theory was later proved invalid in People v. Chiu (2014) 59 Cal.4th 155. Chiu error requires reversal unless the reviewing court concludes beyond a reasonable doubt that the jury actually relied on the legally valid theory. The error was prejudicial and if the prosecution elects not to retry the defendant, the conviction will be reduced to second degree murder.id: 25441
Defendant’s first degree murder liability could not be premised on natural and probable consequences.Defendant was convicted of two first degree murders. In People v. Chiu (2014) 59 Cal.4th 155, the California Supreme Court held an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Because the court couldn’t determine which theory the jury used to convict defendant, the case was reversed for Chiu error. On remand, the prosecution may accept a reduction of the offense to second degree murder or retry the first degree murder charge under theories other than natural and probable consequences.id: 24083
Chiu error required reversal where it could not be determined whether the jury relied on the invalid theory of aiding and abetting.Defendant was tried for first degree murder as an aider and abettor. The jury was given the option to convict him as a direct aider and abettor or under the natural and probable consequences doctrine that was recently found to be improper in People v. Chiu (2014) 59 Cal.4th 155. The conviction was reversed where it could not be determined whether the jury relied on the legally invalid theory.id: 24900
Defendant’s first degree murder conviction was reversed after Chiu even where it wasn’t clear the jury focused on the invalid theory.In People v. Chiu (2014) 59 Cal.4th 155, the court held that an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. The prosecution argued defendant was not entitled to have his conviction reversed because he failed to show the jury based its verdict on the natural and probable consequences theory of aiding and abetting. However, the record shows the jury may have focused on the invalid theory, so reversal of the conviction was necessary.id: 24663
The trial court erred by instructing that an aider and abettor can be convicted of premeditated murder under the natural and probable consequences doctrine. In People v. Chiu (2014) 59 Cal.4th 155, the court held that an aider and abettor cannot be convicted of premeditated first degree murder under the natural and probable consequences doctrine. Here, the trial court erred by instructing a defendant who did not premeditate could be convicted under that theory. However, the error was harmless where the jury’s verdicts showed it convicted defendant of first degree murder under the alterative theory of lying-in-wait.id: 24117
The trial court erred by instructing that defendant could be guilty of first degree murder if it found the target crime of an uncharged conspiracy under a natural and probable consequences theory. In People v. Chiu (2014) 59 Cal.4th 155, the court found a defendant who is an aider and abettor cannot be convicted of first degree murder under a natural and probable consequences theory. It is also error to impose uncharged conspiracy liability for first degree murder under the natural and probable consequences doctrine and the trial court erred by instructing on that theory. The instructional error was prejudicial where the jury may have based its first degree murder verdict on the natural and probable consequences theory, and the remedy was to reduce the conviction to second degree murder or remand for retrial on first degree murder.id: 24021
An aider and abettor can’t be convicted of first degree murder under the natural and probable consequences doctrine.An aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime can only be based on direct aiding and abetting principles.id: 23616
The trial court erred by failing to instruct that to find defendant guilty under the natural and probable consequences doctrine, they needed to find that the codefendant’s premeditation of that murder was a necessary element of the offense. Because defendant’s culpability for first degree murder under the natural and probable consequences doctrine was necessarily dependent upon the codefendant’s premeditation, the jurors should have been required to find that the codefendant’s premeditation was itself a natural and probable consequence of whatever lesser crime they believed defendant intended to commit, before they could convict defendant of first degree murder. Defendant’s first degree murder conviction was reversed because the jurors were not instructed to make that finding.id: 23339
The trial court erred by failing to instruct with CALCRIM No. 403 explaining the natural and probable consequences doctrine but the error was harmless where the prosecution did not rely on that theory.The trial court instructed with CALCRIM No. 400, which mentioned the natural and probable consequences theory of aiding and abetting liability. However, the court erred by then failing to instruct with CALCRIM No. 403, which would have explained that theory to the jury. But, the error was harmless where the prosecutor did not rely on the natural and probable consequences doctrine.id: 23141
The trial court erred by instructing on natural and probable consequences where defendants aided and abetted breach of the peace and assault because the shooter’s “Where are you from?” gang challenge was not likely to result in murder. The trial court erred by instructing the jury that the murder and attempted murder were “natural and probable consequences” of the crimes the defendants aided and abetted – breach of the peace and misdemeanor assault. The evidence to support the instruction was provided by the gang expert who testified that encouraged Rivera’s “Where are you from?” challenge. However, a shooting or homicide was not a natural and probable consequence of the verbal challenge. While many gang-related murders might be preceded by a “Where are you from?” challenger, it does not follow that it is reasonably foreseeable that a shooting would follow. The error was prejudicial as it was reasonably probable that the defendant’s would have obtained a better result absent the error.id: 20711
The instruction on the natural and probable consequence theory of aiding and abetting was flawed for failing to identify the target offenses. The trial court’s instruction regarding the natural and probable consequences theory of aider and abettor liability failed to identify the applicable target offenses. However, the error was harmless where the prosecution did not rely on that theory and the jury’s findings on the special circumstance allegation negate the possibility that the jury relied on that theory.id: 21760
The trial court prejudicially erred by failing to instruct that the jury must determine that attempted murder was a natural and probable consequence of attempted robbery before they could convict on that theory.Defendants entered a liquor store intending to rob a clerk. One defendant saw a gun and shot a clerk in the abdomen. The other defendant was convicted of attempted premeditated murder as an aider and abettor under the natural and probable consequences doctrine. The instructions referred to attempted murder without noting that to convict defendant under that theory the jury would have to find the offense was a natural and probable consequence of attempted robbery. The instructional error required reversal of defendant’s attempted murder conviction.id: 21076
The trial court erred in failing to instruct on the natural and probable consequences doctrine as part of its instructions on accomplice testimony.The trial court properly refused to instruct that three prosecution witnesses were accomplices as a matter of law since there were factual disputes as to whether they aided and abetted the identical offenses charged against defendant. Instead, the court properly instructed with CALCRIM No. 334 which explains that a person is an accomplice if he personally commits a crime or aids and abets its commission. However, the trial court did err in failing to supplement its instruction with an explanation of the natural and probable consequences doctrine of aiding and abetting liability. The error was harmless where the record contained sufficient evidence corroborating the testimony of the codefendants and connecting defendant to the charged crimes.id: 20657
Defendant’s attempted premeditated murder conviction was reduced to attempted unpremeditated murder where he was convicted under the natural and probable consequences doctrine and the shooter was convicted of attempted unpremeditated murder.Defendant was convicted of aiding and abetting an assault, and that the natural and probable consequence of the assault was the attempted murder of the victim. However, defendant’s conviction for attempted premeditated murder was reduced to attempted unpremeditated murder because the shooter was convicted of attempted premeditated murder.id: 20612
When prosecutor relies on the natural and probable consequences doctrine, the trial court must identify the target crimes the defendant might have assisted or encouraged.Defendant was charged with murder and the prosecution's theory was that she was guilty as an accomplice. The court instructed the jury it could find defendant guilty of murder if it determined either that she had aided and abetted the murder or that the murder was a natural and probable consequence of any uncharged offense defendant had aided and abetted. The court did not, however, identify or describe any such uncharged target offense. When the prosecutor relies on the natural and probable consequences doctrine, the trial court must identify and describe the target crimes the defendant might have assisted or encouraged. The error, however, did not violate defendant's federal due process right. It was harmless under <i>Watson</i> where the prosecution theorized defendant assisted the murder of Van Camp and was guilty of murder as an accomplice to that crime.id: 9647
Trial court prejudicially erred in failing to instruct sua sponte on the target offense defendant allegedly aided and abetted.Defendant was convicted of aiding and abetting second degree murder. The trial court erred in failing to instruct sua sponte on the target offense defendant allegedly aided and abetted. The error was prejudicial where there was at least a reasonable likelihood the jury could have misapplied the natural and probable consequences instruction to allow conviction based upon a target offense that either was not criminal or could not properly be found to have murder as a natural and probable consequence.id: 9644
Court erred in imposing consecutive sentences on an aider and abettor who intended a single offense and whose liability for the second was predicated on the natural and probable consequence doctrine.Defendant was convicted as an aider and abettor of robbery and attempted murder. She intended only to aid and abet the robbery. The trial court erred in imposing consecutive sentences for the offenses which arose out of a single transaction where she intended only one offense and her liability for the second offense depended upon it being a natural and probable consequence of the first.id: 17553
Evidence did not show the shooting death was a natural and probable consequence of a fistfight between gang members to support a murder conviction as aiders and abettors.The evidence was insufficient to sustain the defendants' convictions of murder under the aiding and abetting theory, specifically the natural and probable consequences doctrine. A fight broke out at a party involving members of two gangs (including the defendants' gang) although the two gangs hardly knew each other and there was no animosity between them. There were no weapons involved in the fight and no reason for defendants to believe the shooter had a gun. Finding the death was a natural and probable consequence of the fistfight under the Prettyman doctrine would be tantamount to imposing strict liability for the actions of all gang members.id: 19764
Updated 7/12/2024The trial court did not err in refusing to address the voluntariness of defendant’s confession at the section 1172.6 resentencing hearing.As part of defendant’s Penal Code section 1172.6 petition for resentencing, he argued his confession was involuntary and moved to exclude it. However, a resentencing hearing under section 1172.6 is not a new trial and does not provide a new opportunity to raise claims of trial error. The time to litigate the voluntariness of the confession had long passed and the trial court did not err in refusing to consider the issue for the first time.id: 28310
Updated 7/12/2024Defendant was ineligible for section 1172.6 relief where the record showed her conviction of conspiracy to commit murder was necessarily based on a finding that she personally harbored an intent to kill.Defendant was convicted of conspiring with her codefendant to murder her ex-husband. She was also convicted of attempted murder after her co-conspirator shot and wounded the ex-husband. Several years later she sought to be resentenced under Penal Code section 1172.6. However, based on the trial record including the verdicts and instructions, her conviction for conspiracy to commit murder was necessarily based on a jury finding that she personally harbored an intent to kill, making her ineligible for relief under section 1172.6.id: 28308
Updated 7/12/2024Defendants convicted under the provocative act murder doctrine are ineligible for relief under section 1172.6.Defendant was convicted of provocative act murder in 1995. The trial court did not err in denying his request for relief under Penal Code section 1172.6 because that theory of murder is not mentioned in the recent legislative enactments.id: 28300
Updated 7/12/2024Defendant who pled guilty to voluntary manslaughter after SB 1437 was enacted was ineligible for resentencing under section 1172.6.Defendant who was originally charged with murder, pled guilty to voluntary manslaughter after statutory amendments eliminated imputed malice theories of murder liability. He was thereafter ineligible for resentencing under Penal Code section 1172.6 because at the time of his plea, the prosecution could not have proceeded under a theory of imputed malice.id: 28299
Updated 6/1/2024Failure to appoint counsel at the section 1172.6 resentencing proceedings was harmless where the instructions and verdicts showed defendant was the actual killer.The trial court erred by failing to appoint counsel at defendant’s Penal Code section 1172.6 resentencing hearing but the error was harmless where the jury instructions and verdicts showed defendant was convicted as the actual killer.id: 28283
Updated 6/1/2024The trial court did not err in conducting proceedings that defendant characterized as an evidentiary hearing in his absence.Defendant argued the trial court violated his due process rights at his Penal Code section 1172.6 resentencing hearing by conducting the hearing in his absence. However, defendant was present at the hearing where the evidence was admitted. The court later denied the petition after the parties stipulated to the court’s ruling on the motion without an evidentiary hearing. Contrary to defendant’s claim, the court did not conduct an evidentiary hearing in defendant’s absence.id: 28281
Updated 4/13/2024Defendant who ordered his cohorts to murder a 15-year-old with a machine gun was not eligible for section 1172.6 relief.Defendant provided a machine gun to his cohorts and ordered them to kill a 15 year-old. He was not eligible for relief under Penal Code section 1172.6 because aiding and abetting an enumerated felony under section 189 with the intent to kill suffices to constitute felony murder under section 189(e)(2), which precludes section 1172.6 relief.id: 28232
Updated 3/19/2024SB 1437 did not abrogate the doctrine of transferred intent.Defendant argued that after the passage of SB 1437, the doctrine of transferred intent could not establish his liability for murder. However, SB 1437 did not abrogate the doctrine of transferred intent.id: 28230
Updated 3/19/2024Defendant failed to make a prima facie showing for section 1172.6 relief where the record showed defendant acted alone in killing the victim.Defendant pled guilty to voluntary manslaughter in exchange for the dismissal of the murder charge. He admitted that he stabbed the victim and that he acted alone. There was nothing in the record suggesting the involvement of another person. The trial court did not err in denying defendant’s Penal Code section 1172.6 petition at the prima facie hearing.id: 28226
Updated 3/6/2024The Chiu error was harmless where there was no possibility that defendant was convicted of murder under the natural and probable consequences theory.The trial court’s conspiracy instructions improperly allowed defendant to be convicted of first degree premeditated murder as an aider and abettor under the natural and probable consequences doctrine following People v. Chiu (2014 59 Cal.4th 155. However, the error was harmless where there was no possibility the defendant was convicted of murder on a natural and probable consequences theory.id: 26548
Updated 3/6/2024Evidence supported the attempted robbery conviction under the natural and probable consequences theory of aiding and abetting where defendant sat in the van while his confederate entered the store to steal merchandise.Defendant was in a getaway van in front of a department store a few days before Christmas, and his confederate went into the store to steal merchandise. It was reasonably likely that the thief would use force, if necessary, to get to the van. Evidence supported the conviction for aiding and abetting the attempted robbery under the natural and probable consequences doctrine.id: 26624
Updated 3/5/2024The trial court did not err by reviewing the record of conviction to determine defendant was ineligible for resentencing under SB 1437.Defendant argued the trial court erred in its summary denial of his Penal Code section 1170.95 petition because it pleaded facts that if true demonstrated prima facie that he was entitled to relief. However, the trial court reviewed the available record of conviction (charging information and jury instructions) and found defendant was not eligible for SB 1437 relief because he was not charged with, or convicted of, felony murder or murder under the natural and probable consequences doctrine.id: 26800
Updated 3/5/2024The trial court could consider the record of conviction when finding the defendant ineligible for SB 1437 relief, and defendant acted with reckless indifference to life where he participated in the violent armed robbery.Defendant argued the trial court erred in rejecting his Penal Code section 1170.95 petition to vacate his murder conviction. Contrary to defendant’s argument, the trial court did not err by reviewing his record of conviction in determining he was ineligible for relief under SB 1437. On the merits, the evidence showed he was a major participant in the robbery who acted with reckless indifference to human life where he and the codefendant were armed in a violent robbery, using the guns to threaten the victims, and where defendant failed to try and stop his codefendant or help the victim after the shooting.id: 26801
Updated 3/5/2024SB 1437 relief is not available to defendants convicted of voluntary manslaughter.Defendant was charged with first degree murder but pled guilty to voluntary manslaughter. She filed a petition under Penal Code section 1170.95 to vacate the conviction. However, the trial court properly found that section 1170.95 does not apply to defendants convicted of voluntary manslaughter. Denying application of SB 1437 to all homicides was not an equal protection violation.id: 26837
Updated 3/5/2024Defendant who was convicted of murder under the provocative act murder doctrine was not eligible for relief under SB 1437.The trial court did not err in denying defendant’s petition under Penal Code section 1170.95. The provision enacted under SB 1437 permits defendants convicted of murder under felony-murder rule or the natural and probable consequences doctrine to petition for resentencing. Defendant was convicted under the provocative act doctrine, which requires malice, and he was therefore ineligible for relief under SB 1437.id: 26854
Updated 3/5/2024Section 1170.95 was not a proper vehicle for challenging the sufficiency of evidence of aiding and abetting presented at the preliminary hearing.The trial court did not err in summarily denying defendant’s petition for resentencing under Penal Code section 1170.95. He failed to make a prima facie showing that he was convicted of felony murder or murder under a natural and probable consequences theory. Instead, he argued the evidence was insufficient at the preliminary hearing to show he aided and abetted the charged offenses with murderous intent. A petition under section 1170.95 is not a vehicle for such a collateral attack on a guilty plea. id: 26991
Updated 3/5/2024The trial court did not err in finding defendant was ineligible for SB 1437 relief by considering hearsay from the appellate opinion or section 1203.01 statements made after trial.The trial court did not err in denying defendant’s Penal Code section 1170.95 petition to vacate his murder conviction and for resentencing when it relied on hearsay contained in the original appellate opinion and statements made by the trial judge and prosecutor under section 1203.01 to find he was a major participant who acted with reckless indifference to human life. Evidence supported that finding where defendant held a gun and showed he supported the actions of others, sharing their actions and intent.id: 27106
Updated 3/4/2024Defendant did not present a prima facie case for relief under section 1170.95 where the jury was not instructed on the natural and probable consequences theory. The trial court properly found defendant failed to make a prima facie showing of eligibility for relief under Penal Code section 1170.95. While the prosecutor mentioned the natural and probable consequences theory during closing argument, defendant could not demonstrate that he was convicted of murder under that theory because the jury was never instructed on that theory of liability. id: 27796
Updated 3/4/2024The trial court properly relied on the appellate opinion in finding the defendant at the section 1170.95 proceeding had committed implied malice second degree murder. An appellate opinion is part of the record of conviction and may be relied on in deciding a Penal Code section 1170.95 petition on the merits. Substantial evidence supported the trial judge’s finding that defendant committed implied malice second degree murder.id: 27803
Updated 3/4/2024Defendant convicted under the provocative act murder doctrine was ineligible for SB 1437 relief. Defendant who had been convicted of first degree murder under the provocative act murder doctrine was ineligible for relief under Penal Code section 1170.95. id: 27490
Updated 3/4/2024SB 1437 relief is not available to those who were charged with murder but pled guilty to voluntary manslaughter. Defendant was charged with murder but pled guilty to voluntary manslaughter. Because he was not convicted of murder he was ineligible for relief under Penal Code section 1170.95. id: 27492
Updated 3/4/2024Law-of-the-case doctrine prohibited a second petition at the prima facie stage of a section 1172.6 proceeding.The trial court found defendant was ineligible for resentencing under Penal Code section 1172.6 for his conviction of first degree murder and conspiracy to commit first degree murder where the victim was the same person and the target offense was murder. He later filed a second section 1172.6 petition. However, the denial of the first petition was law-of-the-case.id: 28118
Updated 3/4/2024The trial court did not err in finding defendant ineligible for section 1172.6 relief since provocative act murder required that defendant personally harbor malice.During a high speed chase, the police returned fire at defendant’s car killing a passenger. Defendant was convicted of murder under the provocative act murder doctrine. He argued in a Penal Code section 1172.6 petition that the instruction at trial allowed a conviction based on a now-invalid theory of imputed malice. However, at the time of defendant’s trial in 2010, the provocative act murder doctrine required that defendant personally harbor malice. The trial court did not err in finding he was ineligible for resentencing.id: 28119
Updated 3/4/2024Resentencing under section 1172.6 does not apply to defendants who were convicted under the current law.A criminal defendant who was convicted after SB 1437 became effective cannot obtain sentencing relief under Penal Code section 1172.6.id: 28130
Updated 3/4/2024Defendant was not entitled to resentencing under section 1172.6 where the two theories presented to the jury both required an intent to kill.The trial court properly found defendant was ineligible for relief under Penal Code section 1172.6. The original trial court instructed on two theories of liability – direct aiding and abetting, and conspiracy. Both required an intent to kill.id: 28138
Updated 3/4/2024Defendants were not entitled to section 1172.6 relief from their conviction for evading an officer and causing death.Defendants fled from police after killing a rival gang member, and two bystanders were killed during the ensuing vehicle chase. The trial court later granted relief under section 1172.6 from the two second degree murder convictions. However, defendants were not entitled to relief under section 1172.6 from their convictions under Vehicle Code section 2800.3 for evading a peace officer and causing death.id: 28184
Updated 3/4/2024The trial court’s ineligibility ruling at defendant’s section 1172.6 proceeding was law-of-the-case.At defendant’s original petition for resentencing under Penal Code section 1172.6, the court found he was ineligible for relief because his conviction for conspiracy to commit first degree murder showed the target offense, was murder, that ruling was law-of-the-case and conclusively established defendant’s ineligibility for relief at his later renewed petition proceeding.id: 28191
Updated 3/4/2024The jury’s special circumstance finding does not preclude SB 1437 eligibility.The trial court erred in finding defendant was ineligible for relief under Penal Code section 1170.95 due to the robbery-murder special circumstance finding in 1994. The “major participant” and “reckless indifference to human life” standards have evolved following People v Banks (2015) 61 Cal.App.4th 788 and the special circumstance finding is not conclusive. The court erred in summarily denying the petition on this basis and the matter was remanded to the trial court to appoint counsel and consider briefing.id: 26845
Updated 3/4/2024The trial court did not err in denying the SB 1437 petition because defendant was prosecuted as the actual killer.The trial court properly found defendant was ineligible for relief under Penal Code section 1170.95 where he was prosecuted as the actual killer, and not on a felony murder or natural and probable consequences theory. The court did not err in denying the petition without appointing counsel.id: 26866
Updated 2/26/2024The Legislature did not violate the constitutional limitation on amending or repealing initiative statutes when it enacted SB 1437.Senate Bill 1437, enacted as Penal Code section 1170.95, amended sections 188 and 189, which defined malice and the degrees of murder. The trial court erred in finding SB 1437 violated the constitutional limitation on amending initiative statutes.id: 26860
Updated 2/26/2024There can be no conviction for attempted premeditated murder under the natural and probable consequences theory of aiding and abetting.The trial court improperly instructed the jury on premeditated attempted murder under the natural and probable consequences doctrine. In People v. Chiu (2014) 59 Cal.4th 155, the court found the doctrine cannot be used to support first degree murder but the decision was not extended to attempted murder, where the doctrine was found to be valid in People v. Favor (2012) 54 Cal.4th 868. However, there is no principled reason for a distinction between the results of these two cases.id: 26407
Updated 2/26/2024After finding defendant was entitled to relief under SB 1437, the court properly redesigned the murder conviction as both burglary and robbery.Defendant was convicted of felony murder with the underlying felonies being robbery and burglary. His conviction was later vacated pursuant to Penal Code section 1170.95. He argued the court could then only select one felony as the underlying offense. However, the court properly designated the conviction as both burglary and robbery. id: 27322
Updated 2/26/2024Section 1170.95 relief is not available for someone convicted of both murder and conspiracy to commit murder involving the same victim. Penal Code section 1170.95 relief is unavailable to a petitioner concurrently convicted of first degree murder and conspiracy to commit first degree murder where both convictions involve the same victim. Conviction of conspiracy to commit first degree murder shows, as a matter of law, that the target offense was murder rather than some other lesser offense.id: 27498
Updated 2/26/2024Evidence supported the court’s finding that defendant was a major participant in the underlying robbery where he was present during the planning, knew deadly force would be used, and did nothing to stop it.Defendant argued the trial court erred in denying his Penal Code section 1172.6 resentencing petition because the evidence didn’t show he was a major participant in the underlying robbery who acted with reckless indifference to life. However, the evidence was sufficient to support the trial court’s credibility findings. While the primary witness may have been a liar acting with a self-interest, defendant was present when the crime was planned, knew it was likely the perpetrator would use deadly force, and did nothing to minimize the risk. The failure to consider defendant’s youth (23 years old at the time) was harmless where he had been dealing drugs for years and there was no evidence that immaturity was an issue.id: 27849
Updated 2/26/2024The original sentencing judge must rule on a section 1170.95 petition, if available.Penal Code section 1170.95 requires that the original judge (if available) rule on the SB 1437 petition. The court erred in finding the original tribunal that sentenced defendant, rather than the actual sentencing judge, could hear the petition.id: 26965
Updated 2/26/2024Banks petition should be filed as a habeas, not under section 1170.95. and evidence showed defendant who ordered the killer to shoot was a major participant.Defendant argued in a Penal Code section 1170.95 petition that his special circumstance finding was no longer valid in light of People v. Banks (2015) 61 Cal.4th 788, and People v Clark (2016) 63 Cal.4th 522. However, the proper procedure for challenging a special circumstance finding is a petition for writ of habeas corpus, not a petition under section 1170.95. In any event, evidence that defendant instructed the killer to shoot established that he was a major participant who acted with reckless indifference to life, even if he did not directly instruct the killer to shoot at the victim.id: 27007
Updated 2/26/2024The right to counsel attaches upon the filing of a facially sufficient SB 1437 petition that alleges entitlement to relief.Defendant pled no contest to murder in 1994, believing that he would have been convicted under the felony murder or natural and probable consequences doctrine. He recently filed a petition for relief under SB 1437. The trial court erred in summarily denying the petition without appointing counsel. The error was not harmless under the circumstances.id: 27009
Updated 2/26/2024When counsel files a “Wende brief” in an appeal from an SB 1437 denial, the court is not required to review the record.When an appointed counsel files a “Wende” (no issues) brief in an appeal from a summary denial of a Penal Code section 1170.95 petition, a Court of Appeal is not required to independently review the entire record, but the court can and should do so in the interest of justice.id: 27010
Updated 2/26/2024SB 1437 relief is not available to those convicted of first degree murder under the provocative act murder doctrine.Defendant was convicted of first degree murder doctrine under the provocative act murder doctrine. He later filed a petition for resentencing under Penal Code section 1170.95. However, defendant was ineligible for relief under section 1170.95 because he was convicted neither under the felony murder rule nor under the natural and probable consequences doctrine.id: 27104
Updated 2/26/2024The court found after independent Wende review that there were no issue for the actual killer who sought SB 1437 relief. Defendant punched his elderly father in the face and he died. Defendant was convicted of murder. He filed for a resentencing under Penal Code section 1170.95, but the trial court denied the petition given that he was the actual killer. The Court of Appeal exercised its discretion under Wende review to look for appellate issues but found none. The dissent argued independent review was unnecessary where the defendant was plainly ineligible for section 1170.95 relief.id: 27105
Updated 2/26/2024Custody credits from PRCS flash incarceration and jail don’t shorten the three year PRCS supervision period.Penal Code section 4019 custody credits do not accrue with each Post Relief Community Supervision flash incarceration or jail sanction, thereby shortening the PRCS three-year supervision period. The idea of custody credits whittling down a PRCS supervision period is counter-intuitive and counterproductive.id: 27107
Updated 2/26/2024Wende procedure does not apply to orders denying relief under section 1170.95. The Wende procedure does not apply to an appeal from the denial of an order denying a postconviction petition sentencing relief pursuant to Penal Code section 1170.95id: 27242
Updated 2/24/2024The trial court properly denied defendant’s section 1172.6 petition at the prima facie stage where the instructional errors he raised had nothing to do with the 2019 legislative changes.The trial court did not err in denying defendant’s Penal Code section 1172.6 petition at the prima facie stage. He failed to show he could not presently be convicted of murder “because of” charges made by SB 1437. His claim of instructional error regarding aiding and abetting a first degree murder by lying-in-wait had nothing to do with the 2019 legislative changes.id: 28158
Updated 2/23/2024The trial court properly redesignated the underlying burglary as first degree after vacating the murder conviction under SB 1437. Defendant was convicted of first degree murder with a felony-murder special circumstance. In 2018, the court vacated his murder conviction under SB 1437, and the parties agreed the underlying felony was a burglary but they disagreed on the degree of the offense. The trial court did not err by designating the offense as first degree burglary given the evidence that it was a residential burglary. Penal Code section 1157 did not require that it be fixed at second degree and there was no Apprendi violation since the redesignation didn’t increase defendant’s sentence. Finally, the court properly designated the offense as a violent felony and imposing the arming enhancement even thought not pled and proven as such.id: 26885
Updated 2/23/2024The jury instructions from defendant’s 1997 trial, which made no mention of felony murder or the natural and probable consequences doctrine prevented defendant from making a prima facie case for relief under section 1170.95.Defendant argued the trial court erred in relying on facts gleaned from his petition to vacate a murder conviction under Penal Code section 1170.95. However, regardless of the trial court’s reliance on the facts in the prior opinion to explain how the malice element of murder was solved at defendant’s trial, the jury instructions demonstrated as a matter of law that defendant would not make a prima facie case for relief under SB 1437.id: 26919
Updated 2/23/2024Defendant must challenge a special circumstance finding in a Banks/Clark petition before seeking SB 1437 relief. The trial court properly denied defendant’s Penal Code section 1170.95 petitioner without issuing an OSC and holding an evidentiary hearing because the record showed as a matter of law that he was ineligible for relief. The jury in his case found the robbery and kidnapping special circumstances to be true, which means it necessarily found he was a major participant who acted with reckless indifference to life. His remedy at this point is to challenge the special circumstance findings in a Banks/Clark habeas corpus petition.id: 26920
Updated 2/22/2024The trial court had discretion, but was not required to apply excess credits to reduce or eliminate the parole period at an SB 1437 resentencing.Defendant filed a petition for resentencing under Penal Code section 1170.95. The trial court vacated his murder conviction, resentenced him to time served on the robbery and related sentence enhancement, and placed him on parole supervision for two years. Defendant sought immediate release from parole supervision claiming the trial court was required to apply his excess custody credits to eliminate the two-year parole period. The trial court had the discretion, but was not required to apply excess credits to reduce or eliminate parole at a resentencing under section 1170.95. id: 26954
Updated 2/22/2024SB 1437 is not unconstitutional.Senate Bill 1437 is not an invalid amendment of either Propositions 7 or 115.id: 27015
Updated 2/22/2024The trial courts did not err in considering the preliminary hearing transcript to find defendant was ineligible for SB 1437 relief.Defendant argued the trial court erred in finding him ineligible under Penal Code section 1170.95 without issuing an order to show cause and holding an evidentiary hearing. Contrary to defendant’s claim, the trial court properly considered the preliminary hearing transcript at the prima facie review when determining eligibility. The court’s reliance on the preliminary hearing testimony did not violate defendant’s Sixth Amendment right to a jury trial.id: 27026
Updated 2/22/2024The trial court erred by analyzing the section 1170.95 as if it involved felony murder, but the error was harmless given the finding that the defendant intended to kill.The trial court erred in denying defendant’s Penal Code section 1170.95 petition because it treated the case as if it involved felony murder when it really involved the application of the natural and probable consequences doctrine. However, the error was harmless where the evidence supported the finding that defendant acted with the intent to kill.id: 27031
Updated 2/22/2024The trial court did not err in summarily denying defendant’s section 1170.95 petition given the finding that he acted with the intent to kill.Defendant was ineligible for resentencing under Penal Code section 1170.95 because his jury found that he acted with an intent to kill. The trial court ruling on his petition did not prejudicially err by summarily denying it without a continuance to allow defense counsel to obtain and read the transcript of the trial.id: 27033
Updated 2/22/2024A petitioner with a pre-Banks/Clark finding is ineligible for relief under section 1170.95 as a matter of law.Petitioner’s special circumstance finding rendered him ineligible for relief under Penal Code section 1170.95. He argued the special circumstance finding no longer supports a felony murder conviction following People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, which clarified the meaning of “major participant” and “reckless indifference to human life.” However, the proper procedure for petitioner’s challenge is a habeas corpus petition alleging the special circumstance finding is not supported by sufficient evidence following Banks and Clark.id: 27074
Updated 2/22/2024Resentencing under section 1170.95 is not available for a defendant convicted of DUI murder.Defendant was convicted of second degree murder under an implied malice theory for killing a person in a drunk driving incident. He filed a petition for resentencing under Penal Code section 1170.95. The trial court properly found he was ineligible for relief as a matter of law because he was convicted under a theory of direct rather than vicarious liability.id: 27082
Updated 2/22/2024A defendant with a special circumstance finding is ineligible for resentencing under section 1170.95, and the special circumstance allegation must be challenged in a separate habeas petition.In order to make the initial prima facie showing under Penal Code section 1170.95 (c), the petition must include the factual basis for the assertion that the petitioner could not now be convicted because of changes to section 188 or 189. The trial court may deny a petition at that stage on the ground that a petitioner convicted of murder with a felony-murder special circumstance is not eligible as a matter of law. And a section 1170.95 petition is not a proper vehicle for mounting a challenge under Banks and Clark to the jury’s prior finding that the petitioner was a major participant who acted with reckless indifference to human life. id: 27090
Updated 2/22/2024The trial court at the section 1172.6 hearing erred in considering whether defendant’s youth impacted his ability to form the required mental state for implied malice murder. Defendant who was 21 years old at the time of the murder committed in 1993, argued in his Penal Code section 1172.6 petition that the trial court erred in failing to consider his youth on the issue of whether he acted with implied malice. Youth was a factor the court should have considered at the resentencing hearing, and the matter was remanded to allow the court to consider how, if at all, defendant’s youth impacted his ability to form the intent to commit second degree murder.id: 28101
Updated 2/22/2024Defendant who acknowledged shooting the victim as the factual basis for his guilty plea was ineligible for section 1172.6 relief.The trial court did not err in denying defendant’s Penal Code section 1172.6 request for resentencing where the factual basis of his guilty plea acknowledged that he personally shot the victim, which rendered him ineligible for relief as a matter of law.id: 28104
Updated 2/22/2024SB 1437 does not eliminate the natural and probable consequences theory for attempted murder either prospectively or retroactively.SB 1437's inapplicability to attempted murder on a prospective basis is not clear from its text, but is clear from its legislative history. Even if the provision applied to attempted murder, it would not have any retroactive effect because the bill’s statutory mechanism for providing retroactive relief, Penal Code section 1170.95, limits relief to “convictions” for “murder” which rebuts the presumption that ameliorative changes apply retroactively to nonfinal convictions.id: 27036
Updated 2/22/2024A defendant with a felony-murder special circumstance finding was ineligible for resentencing under section 1170.95.Defendant filed a Penal Code section 1170.95 petition arguing that his 1997 special circumstance finding could no longer support a felony murder conviction in light of People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, which clarified the meaning of “major participant” and “reckless indifference to human life.” However, section 1170.95 was not the proper vehicle for such a challenge. id: 27038
Updated 2/22/2024Defendant acted with reckless disregard for life under Banks and Clark where he planned a home invasion robbery of a drug dealer and forced his way into the house with his gun drawn.In 2000, defendant was convicted of felony murder. He recently filed a petition under Penal Code section 1170.95 seeking to vacate the conviction, arguing that while he was a major participant, there was insufficient evidence to show he acted with reckless indifference to human life. However, he admitted planning the robbery of a known drug dealer using firearms. He and the actual killer pushed their way into the victim’s home with guns drawn, forced one victim to the ground and threatened others in the house. This conduct shows he was a major participant who acted with reckless disregard for life, and the trial court properly denied the petition.id: 27053
Updated 2/22/2024SB 1437 does not conflict with Marsy’s Law and does not violate the separation of powers doctrine.The trial court erred in finding that Penal Code section 1170.95, enacted as part of SB 1437 was unconstitutional. Contrary to the court’s finding, SB 1437 does not violate the separation of powers doctrine and does not conflict with Marsy’s Law.id: 27057
Updated 2/22/2024The trial court did not err in denying the section 1170.95 petition for the planner of a robbery who acted with reckless indifference to life. Defendant was the ringleader in a robbery. He was a major participant in a felony who acted with reckless disregard for human life. He did not qualify for resentencing under Penal Code section 1170.95.id: 27058
Updated 2/7/2024Defendant must proceed under section 1170.95 in order to get SB1437 relief. The procedure set forth in Penal Code Section 1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of SB1437 do not apply to nonfinal judgments on direct appeal.id: 27142
Updated 2/4/2024SB 1437 was an act of lenity not subject to the Sixth
Amendment right to a jury.Defendant argued that he was entitled to a jury trial for his Penal Code section 1170.95 petition. However, SB 1437 was an act of lenity by the Legislature, and is not subject to Sixth Amendment analysis. id: 27296
Updated 2/4/2024Any error in failing to appoint counsel in SB 1437 proceedings was harmless where defendant was found guilty of murder along with a felony-murder special circumstance. Defendant argued the trial court erred in denying his Penal Code section 1170.95 petition without appointing counsel or following other procedures set forth in the provision. However, any error in failing to appoint counsel was harmless because the record showed he was ineligible for resentencing as a matter of law following the true finding on the robbery-murder special circumstance.id: 27356
Updated 2/4/2024SB 1437 does not provide relief for voluntary manslaughter or attempted murder convictions.In 2010, defendant pled guilty to voluntary manslaughter and attempted murder. In 2019, following the passage of SB 1437, he petitioned for resentencing under Penal Code section 1170.95. The trial court properly determined that section 1170.95 provides relief for murder convictions only. There was no equal protection violation by failing to provide relief to those convicted of lesser offenses.id: 27226
Updated 2/4/2024An appellate opinion is part of the record of conviction that a trial judge may rely on when deciding a section 1170.95 petition on the merits.An appellate opinion is part of the record of conviction and may be relied upon in deciding a Penal Code section 1170.95 petition on the merits. The trial judge also sits as a fact finder at a hearing under section 1170.95(d). The defendant’s own testimony about how she recruited the assault on her brother supported the judge’s finding that she committed implied malice second degree murder.id: 27227
Updated 2/4/2024SB 1437 did not eradicate the narrowing function traditionally performed by the felony-murder special circumstance statute.SB 1437 neither repealed the felony murder special circumstance statute in practice nor amended any voter-approved initiative. The trial court erred in striking the resentencing petition on this basis.id: 27457
Updated 2/4/2024Section 1170.95 relief is not available for someone convicted of both murder and conspiracy to commit murder involving the same victim. Penal Code section 1170.95 relief is unavailable to a petitioner concurrently convicted of first degree murder and conspiracy to commit first degree murder where both convictions involve the same victim. Conviction of conspiracy to commit first degree murder shows, as a matter of law, that the target offense was murder rather than some other lesser offense.id: 27447
Updated 2/4/2024SB 1437 relief is not available to those who were charged with murder but pled guilty to voluntary manslaughter. Defendant was charged with murder but pled guilty to voluntary manslaughter. Because he was not convicted of murder he was ineligible for relief under Penal Code section 1170.95. id: 27440
Updated 2/4/2024Not true finding on special circumstance allegation did not entitle defendant to automatic resentencing under section 1170.95 as the prosecution had the chance to prove the peace officer exception applied. Defendant made a prima facie showing of entitlement to relief under Penal Code section 1170.95 where the not true finding on the felony-murder special circumstance allegation showed he was not a major participant who acted with reckless indifference to life. However, he was not entitled to automatic resentencing because the peace officer exception may have applied and the prosecution must be given the opportunity to prove the exception applied. id: 27840
Updated 2/4/2024The trial court lacked jurisdiction to rule on the section 1170.95 petition until after the remittitur from the Court of Appeal had issued. On October 2nd, 2020, the superior court granted relief to the defendant, vacating his 2015 murder conviction and ordering resentencing under Penal Code section 1170.95. However, the issue was also being litigated in an appeal, which remanded the matter to the superior court. But the remittitur was not issued until October 30, 2020. The trial court lacked jurisdiction to rule on the petition until the remittitur had issued. The matter was remanded to the superior court for further proceedings.id: 27360
Updated 2/4/2024Wende review does not apply to petition for resentencing under section 1172.6. When appellate counsel submits notice that an appeal from the denial of a petition for resentencing under Penal Code section 1172.6 lacks arguable merit, the Court of Appeal should provide notice to the defendant that counsel was unable to find any arguable issues; the defendant may file a supplemental brief raising potential issues, and if no such brief is filed, the court may dismiss the appeal as abandoned. The procedures described in People v. Wende (1979) 25 Cal.3d 436, do not apply.id: 27652
Updated 2/4/2024Direct aiding and abetting of implied malice murder is a legally valid theory of murder liability.Direct aiding and abetting of implied malice murder is a legally valid theory of murder liability. The trial court did not err in denying defendant’s Penal Code section 1172.6 petition where defendant remained liable for murder under that theory.id: 27579
Updated 2/3/2024A felony murder special circumstance finding does not bar relief under section 1170.95 as a matter of law. Given the evolving meaning of the terms “major participant” and “reckless indifference to human life,” a felony murder special circumstance finding does not bar resentencing relief under Penal Code section 1170.95 as a matter of law.id: 27516
Updated 2/3/2024The trial court did not err in admitting the parole risk report and parole hearing transcript at the section 1170.95 evidentiary hearing. The trial court did not err in admitting and considering the parole risk assessment report and parole hearing transcript at the Penal Code section 1170.95 evidentiary hearing. Defendant was not entitled to a form of use immunity for her statements and testimony in connection with her suitability for parole.id: 27517
Updated 2/3/2024Defendant convicted under the provocative act murder doctrine was ineligible for SB 1437 relief.Defendant who had been convicted of first degree murder under the provocative act murder doctrine was ineligible for relief under Penal Code section 1170.95.id: 27438
Updated 2/3/2024Defendant failed to make a prima facie case for eligibility under section 1170.95 where the trial evidence showed he was guilty of murder as a direct aider and abettor. Defendant was convicted of murder based on evidence that showed he and other gang members beat a gang rival and defendant directed another defendant to stab the victim repeatedly. Defendant taunted the dying victim. In 2019, he filed a 1170.95 petition seeking resentencing. The trial court properly ruled he was ineligible given the evidence of direct aiding and abetting. He was not entitled to an evidentiary hearing to retry the underlying criminal case against him. id: 27091
Updated 2/3/2024Evidence supported the finding that defendant was a major participant in the robbery where he knew his cohorts had a weapon, watched them use it on a victim and did nothing to stop it.Evidence supported the finding that defendant was a major participant in the underlying felony who acted with reckless disregard for life even absent evidence that he knew of his cohorts’ intentions where he knew they bought a weapon which they were using, he was present when they used the weapon to injure a victim and he did nothing to diffuse the problem.id: 27554
Updated 2/3/2024SB 1437 did not eliminate implied malice as a valid theory of murder for aiders and abetters.Contrary to defendant’s claim, SB 1437 did not eliminate implied malice as a valid theory of murder for aiders and abetters. Evidence supported implied malice as defendant knew his companions (members of The Mongols motorcycle club) were armed and had planned a coordinated attack. He knew the others had knives and by the time he joined the attack he could have known that life-threatening violence would be used.id: 27621
Updated 2/3/2024As the sole and actual perpetrator of the attempted murder, defendant was ineligible for resentencing as a matter of law.Defendant pled no contest to attempted murder and admitted he personally used and discharged a firearm in the commission of the crime. He later filed a petition for resentencing under Penal Code section 1172.6. However, as the sole and actual perpetrator of the attempted murder, defendant was ineligible for resentencing as a matter of law.id: 27703
Updated 2/3/2024Denial of section 1172.6 petition without appointing counsel was harmless where defendant committed the attempted murder acting alone.The trial court did not appoint counsel, set a briefing schedule or hold a hearing before deciding that defendant did not make a prima facie case for resentencing under Penal Code section 1172.6. Any error in failing to appoint counsel was harmless where defendant was the only person who committed the attempted murder for which the jury found him guilty beyond a reasonable doubt.id: 27706
Updated 2/3/2024Due process requires notice of any request by the prosecutor to redesignate an unadjudicated offense for sentencing under section 1170.95. Defendant was convicted in 2014 of two counts of murder arising out of a home invasion robbery. Because he was not the actual shooter, the murder convictions were reversed in Penal Code section 1170.95 proceedings. Even though he was never charged with the under lying robberies, the court resentenced defendant to a shorter term for the robberies. Defendant was correct that due process required notice and an opportunity to be heard on the unadjudicated offenses. However, under the circumstances he was given the required notice.id: 27732
Updated 2/3/2024The trial court erred in finding SB 1437 was unconstitutional. SB 1437 and Penal Code section 1170.95 (as enacted by SB 1437) did not unconstitutionally amend Propositions 7 or 15. The trial court erred in finding the provision is constitutional. id: 26909
Updated 2/3/2024Section 1170.95 does not implicate a defendant’s right to have essential facts found by a jury beyond a reasonable doubt.Permitting a trial court to make factual findings underpinning a determination of eligibility for Penal Code section 1170.95 relief does not violate a defendant’s right to jury trial under Apprendi.id: 27087
Updated 2/3/2024Defendant’s guilt as an aider and abettor was irrelevant in the section 1172.6 petition where it was established that defendant was guilty of felony murder under the current law.In 1992, defendant was convicted of first degree murder along with a true finding on the prior—murder special circumstance. He argued in a Penal Code section 1172.6 resentencing petition that the special circumstance finding established the requisite intent for a conviction of first degree murder but not for the actus reus necessary for direct aider and abettor liability. However, defendant’s guilt as an aider and abettor was irrelevant because the record established his guilt under the current felony murder rule. The verdict demonstrates the jury found defendant participated in a qualifying felony and acted with the intent to kill.id: 27683
Updated 2/3/2024The trial court erred in refusing to appoint counsel in section 1170.95 case based solely on the earlier jury’s special circumstance finding. A pre-Banks and Clark felony murder circumstance finding does not preclude a defendant from making a prima facie showing of eligibility for resentencing relief under Penal Code section 1170.95. The trial court erred in finding that it did and refusing to appoint counsel for defendant. The error was not harmless where it could not be determined from the record that defendant acted with reckless indifference to human life. id: 27759
Updated 2/3/2024Defendants convicted of murder under the natural and probable consequences doctrine did not qualify for SB 1437 relief. Defendants were convicted of murder under the provocative act murder doctrine. They later sought relief under Penal Code section 1170.95. However, defendants were not eligible for relief under SB 1437 because they were not convicted of murder under the felony-murder rule or the natural consequences doctrine.id: 27094
Updated 2/3/2024The trial court properly denied section 1170.95 relief where evidence showed defendant was the actual killer. The trial court properly denied defendant’s Penal Code section 1170.95 petition where the evidence included defendant’s plea to personally using a firearm and showed he was the actual killer. That the trial court may have applied an incorrect standard of proof in denying the petition was harmless. id: 27765
Updated 2/3/2024The trial court properly denied defendant’s request for relief under section 1172.6 in light of the true finding on the drive-by shooting special circumstance allegation.The jury’s true finding on the drive-by shooting special circumstance allegation, together with the court’s instructions, conclusively demonstrated the jury found defendant acted with the requisite intent and conduct to convict him of first degree murder under the amendments to Penal Code section 188 and 189.id: 27669
Updated 2/3/2024A hung jury on the firearm use enhancement allegation did not preclude a finding at the section 1170.95 hearing that defendant was the actual shooter. A jury’s inability to reach a verdict on the firearm use enhancement did not preclude the trial court in a later Penal Code section 1170.95 petition hearing from finding beyond a reasonable doubt that defendant was the shooter. One witness could not identify defendant as the shooter, but another did, and considerable circumstantial evidence corroborated that identification.id: 27859
Updated 2/3/2024The denial of a section 1172.6 petition is reviewed for substantial evidence rather than de novo, even where there was no live testimony at the hearing.Defendant sought resentencing under Penal Code section 1172.6. The trial court denied the petition after an evidentiary hearing. Defendant argued the appellate court should review the denial of the petition de novo because there was no live testimony. However, the proper standard of review was substantial evidence, and substantial evidence supported the trial court’s conclusion that defendant failed to protect her child and was guilty of second degree murder.id: 27861
Updated 2/2/2024 Evidence showed defendant was a major participant in the crimes acting with reckless indifference where he participated knowing how dangerous and violent his codefendant was.The trial court did not err in denying defendant’s petition to vacate his felony-murder conviction under Penal Code section 1172.6. Evidence supported the finding that he was a major participant in the underlying robbery and sex crimes who acted with reckless indifference to human life. He knew that the codefendant was an armed, explosively violent person who talked about shooting someone earlier in the day. While he may not have planned the crimes or supplied or used the weapons, he was keenly aware of the danger in taking part in the crimes with the codefendant.id: 27865
Updated 2/2/2024The trial court properly relied on the 2012 Transcripts at the section 1172.6 evidentiary hearing.The trial court, at the evidentiary hearing on defendant’s Penal Code section 1172.6 petition, properly relied on the 2012 trial transcripts to conclude defendant has been a major participant acting with reckless disregard for human life. The evidence of defendant’s participation in the robbery and the victim’s death (and failure to attempt to prevent it) supported the court’s finding.id: 27881
Updated 2/2/2024SB 1437 claim failed when raised on appeal from penalty phase retrial given evidence that defendant was a major participant who acted with reckless indifference.Defendant on appeal from his penalty phase retrial, argued for reversal of the underlying murder conviction because it may have been based on a felony-murder theory invalidated by SB 1437. Assuming the argument could be raised at this stage, it failed given the evidence that defendant was a major participant in the underlying felony who acted with reckless indifference to human life.id: 27888
Updated 2/1/2024Section 1172.6(d)(2) does not require vacatur of a murder conviction and resentencing when there are viable biases for liability independent of a rejected special circumstance allegation.Following an evidentiary hearing, the trial court denied defendant’s Penal Code section 1172.6 petition on the grounds that defendant was ineligible for relief because he aided and abetted the murder and acted with malice. Defendant argued on appeal that he should have been resentenced without a hearing under the streamlined procedure described in section 1172.6(d)(2), which applies when there was a prior finding that defendant was not a major participant and did not act with reckless indifference to life. He argued the jury’s rejection of the robbery special circumstance constitutes such a finding, regardless of any other viable grounds for his conviction. However, section 1172.6(d)(2) does not mandate vacatur of a murder conviction and resentencing when there are viable biases for murder liability independent of a rejected special circumstance allegation.id: 27917
Updated 2/1/2024Defendant convicted of provocative act murder was not entitled to relief under section 1172.6.Defendant was convicted of first degree murder in 1991 under the provocative act murder doctrine, which required that the defendant personally harbored malice. The trial court did not err in denying him relief under Penal Code section 1172.6.id: 27927
Updated 2/1/2024The true finding on the gang special circumstance allegation did not render defendant ineligible for section 1170.95 relief as a matter of law.The jury’s true finding on the gang special circumstance allegation did not automatically render defendant ineligible for relief under Penal Code section 1170.95. While the gang special circumstance instruction told the jurors they needed to find defendant had the requisite intent to kill (the mens rea), it did not require the jurors to find that he directly aided and abetted the target crime of murder (the actus reus). Without weighing the evidence the true finding on the special circumstance allegation did not conclusively establish murder under current law.id: 27936
Updated 2/1/2024Prior opinion establishing defendant as the actual killer was law-of-the-case and the trial court correctly denied the section 1170.95 without issuing an OSC.Defendant’s first degree murder conviction in 2001 was based on a theory that she was the actual killer. The appellate opinion became law-of-the-case for purposes of the prima facie stage of the Penal Code section 1170.95 proceedings. The trial court therefore correctly denied her petition without issuing an order to show cause.id: 27940
Updated 2/1/2024The trial court erred in finding defendant was ineligible for section 1170.95 relief where the preliminary hearing transcript did not show conclusively that he was the actual killer.The preliminary hearing transcript did not establish that defendant was ineligible for resentencing as a matter of law under Penal Code section 1170.95. The testimony in the transcript did not conclusively establish that defendant was the actual killer or a major participant, and it did not exclude the possibility that he was convicted under the imputed malice theory eliminated by SB 1437.id: 27954
Updated 2/1/2024Any instructional error in murder case that predated SB 1437 was harmless given the state's theory and evidence that defendant was the actual killer.In defendant’s second appeal from a special circumstance murder conviction in 2012, he argued that in light of the recent legislation and Senate Bills 1437 and 775, revising the law of murder, the jury instructions given in his case were prejudicially erroneous. However, any instructional error was harmless where the evidence showed he was the actual killer.id: 27974
Updated 2/1/2024The trial court properly rejected defendant’s Penal Code section 1170.95 petition where the record showed he was an aider and abetter and acted with an intent to kill.The trial court did not err in finding defendant was ineligible for relief under SB 1437 where the record showed that he was convicted of first degree murder as an aider and abetter with the intent to kill.id: 27975
Updated 2/1/2024Defendant’s testimony from his parole suitability hearing was admissible at his section 1170.95 evidentiary hearing.The trial court did not err by admitting in his Penal Code section 1170.95 evidentiary hearing testimony from his parole suitability hearing.id: 27982
Updated 2/1/2024The proper remedy for a violation under SB 775 is to remand and allow the prosecution a chance to retry the attempted murder counts.In light of Senate Bills 1437 and 775, the trial court erred by instructing the jury on the natural and probable consequences doctrine with respect to the attempted murder charges. The matter was remanded to give the prosecution the opportunity to retry the attempted murder counts.id: 27987
Updated 2/1/2024Conviction for conspiracy to commit murder did not show intent to kill for purposes of section 1170.95 petition, and that section could be used to challenge conviction for murder but not conspiracy to commit murder.The trial court erred in denying defendant’s Penal Code section 1170.95 petition as the conviction for conspiracy to commit murder conviction was not a finding of intent to kill. However, section 1170.95 did not provide a mechanism to challenge the conviction for conspiracy to commit murder. The matter was remanded with respect to the murder and attempted murder counts (following SB 775).id: 28004
Updated 1/31/2024Admission that defendant acted intentionally, deliberately and with premeditation rendered him ineligible for resentencing under section 1170.95.Defendant pled no contest to a first degree murder in 2007, and admitted the allegation that he acted intentionally, deliberately and with premeditation. That admission rendered him ineligible for resentencing under his Penal Code section 1170.95 petition filed in 2019.id: 28024
Updated 1/31/2024Defendant did not make a prima facie showing for relief under section 1172.6 where he didn't deny being the actual killer, assert someone else fired the fatal shot, or deny having an intent to kill.The trial court did not err in finding defendant was ineligible for relief under Penal Code section 1172.6. Defendant did not deny being the actual killer, assert that another person fired the fatal shot, or that he lacked the intent to kill. He merely argued that he could not now be convicted of murder due to the changes made in SB 1437.id: 28041
Updated 1/31/2024Defendant forfeited claim regarding court’s sole reliance on appellate opinion facts in section 1172.6 proceedings, and use of lower burden of proof was not automatic reversal.Defendant argued the trial court erred in denying his request for relief under Penal Code section 1172.6 because it considered only the facts stated in the earlier court of appeal opinion. However, defendant’s failure to object to the court’s reliance on those facts forfeited the issue. Moreover, the trial court’s reliance on an unduly low burden of proof was not reversible per se, and defendant made no attempt to argue prejudice.id: 28054
Updated 1/31/2024Absent an objection by trial counsel, the court did not err by denying defendant’s request for relief under section 1172.6 by considering the facts stated in the appellate opinion.The trial court denied defendant’s request for relief under Penal Code section 1172.6. He argued the trial court erred by considering only the facts as stated in the opinion from the direct appeal rather than the facts as shown by the record of conviction. However, trial counsel forfeited the erroneous reliance on the appellate opinion by failing to object, and absent an objection, the prior opinion constituted substantial evidence.id: 28060
Updated 1/31/2024Applying an erroneously low burden of proof in a section 1172.6 proceeding is not reversible per se.In a Penal Code section 1172.6 proceeding, the trial court’s erroneous application of an unduly low burden of proof is not reversible per se. Rather, the defendant has the burden of showing it is reasonably probably that, absent the error, he or she would have enjoyed a better outcome.id: 28061
Updated 1/31/2024Appellate court applies substantial evidence standard of review to denial of section 1172.6 request, and prosecution is not required to produce live testimony.The trial court denied defendant’s request for resentencing under Penal Code section 1172.6. The appellate court reviews that determination under the substantial evidence standard. Moreover, contrary to the defendant’s claim, the prosecution was not required to produce live testimony at the hearing.id: 28070
Updated 1/29/2024Flawed instruction at defendant’s earlier murder trial did not give rise to relief under section 1172.6.Defendant argued that the misleading former version of CALCRIM No. 400, stating that direct perpetrators and aiders and abettors can be “equally guilty” created an “other theory” of implied malice within the meaning of Penal Code section 1172.6. However, that provision does not create a right to a second appeal, and defendant cannot use it to resurrect a claim that should have been raised in his 2013 appeal.id: 28084
Updated 1/29/2024Defendant was ineligible for section 1172.6 relief where he admitted at the change of plea hearing that he entered the apartment and shot and killed the victims.The trial court did not err in finding defendant was ineligible for relief under Penal Code section 1172.6 where defendant pled guilty to murder, and admitted at the change of plea hearing that he entered the apartment and shot and killed the victims.id: 28085
Updated 1/29/2024Denial of section 1172.6 petition was proper where the issues of whether defendant was the shooter and whether counsel had an incentive not to contest the issue were litigated.The trial court erred in considering facts from the appellate opinion and denying defendant’s Penal Code section 1172.6 petition for relief. However, the error was harmless as the record showed defendant was the actual killer. While defendant argued principles of issue preclusion (collateral estoppel) do not apply, the issues of whether defendant was the actual shooter and whether trial counsel had an incentive not to contest whether defendant was the shooter were actually litigated.id: 28087
Updated 1/29/2024Defendant was not entitled to relief under section 1172.6 where the record showed he was the actual killer.The trial court did not err in denying defendant’s request for resentencing under Penal Code section 1172.6 where the record conclusively established that defendant was the actual killer.id: 28092
Updated 1/29/2024The trial court at the section 1172.6(d)(3) evidentiary hearing did not err in considering the preliminary hearing testimony of an eyewitness to the shooting.At an evidentiary hearing under Penal Code section 1172.6(d)(3), trial court found defendant was the actual killer, and thus ineligible for resentencing. Defendant argued the court erred by admitting into evidence the transcript of preliminary hearing testimony from a witness to the shooting because there was no showing that the witness was unavailable. However the statute does not suggest that the evidentiary hearing is a new court trial. Rather, it is a procedure requiring trial courts to decide the factual issues based in some cases on a cold record.id: 28093
Updated 1/29/2024The trial court properly denied defendant’s section 170.6 challenge against the judge as the proceedings on remand addressing the section 1172.6 petition did not constitute a “new trial”.The trial court denied defendant’s Penal Code section 1172.6 petition after an evidentiary hearing. The decision was reversed on appeal and the matter was remanded for new proceedings and assigned to the new judge. Defendant filed a peremptory challenge pursuant to Code of Civil Procedure section 170.6 seeking to disqualify the judge. The motion was properly denied because the new proceedings on remand did not constitute a “new trial” within the meaning of section 170.6(a)(2).id: 28096
Evidence supported the pre-Banks felony murder special circumstance finding where the charged murder occurred during a crime spree. Defendant argued the evidence showed he was sitting in a car outside the tire shop when his confederate went inside and shot the victim in the course of an attempted robbery, and therefore the evidence was insufficient to support the felony murder special circumstance. However, this act took place during part of a larger crime spree in which defendant was a major participant.id: 27384
SB 1437 relief was not available where the jury had found the felony-murder special circumstance allegation to be true.Defendant was convicted of murder after the jury was instructed on felony-murder and the natural consequences theory of aiding and abetting. He sought relief under the newly enacted SB 1437. However, he could not benefit by retroactive application of the provision where the jury found the felony-murder special circumstance allegation to be true.id: 26344
SB 1437 claim could not be raised as part of the appeal.Defendant argued one of the theories the prosecution presented in his murder case has been rendered legally incorrect under SB 1437, which was passed while his appeal was pending, and reversal is now required since it could not be determined which theory the jury relied on. The theories the prosecution argued were valid at the time of his trial. He must seek relief by filing a petition under Penal Code section 1170.95 in the trial court. id: 26785
The trial court should accept the petitioner’s assertions as true when assessing whether he or she has made a prima facie showing for purposes of section 1170.95.SB 1437 and Penal Code section 1170.95 allow an individual who was convicted of felony murder to petition to have the murder conviction vacated and to be resentenced. When assessing whether a petitioner has made a prima facie showing of entitlement to relief under section 1170.95 (c) (such that it must issue an order to show cause) the trial court should accept the assertions in the petition as true unless the facts in the record conclusively refute them as a matter of law. In assessing petitioner’s prima facie showing, the trial court should not weigh evidence or make credibility determinations. id: 26778
SB 1437 does not apply to attempted murder. SB 1437 is not a bar to defendant’s conviction for attempted murder under the natural and probable consequences theory. The legislation reaches the crime of murder but has no application to attempted murder.id: 26773
SB 1437 is not unconstitutional.SB 1437 amended the natural and probable consequences doctrine for murder, and 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 intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. The provision does not amend either Prop 7 or Prop 115, and therefore is not an unconstitutional intrusion into the voters initiative powers.id: 26702
Defendant could not raise his SB 1437 claim on appeal, and had to petition the superior court for relief.Defendant argued that because SB 1437 went into effect after his conviction but before he filed his opening brief on appeal that he was entitled to the retroactive application of the rule. However, defendant could not raise his SB 1437 claim on direct appeal, and instead was required to follow the procedures in section 1170.95 and petition the superior court for relief.id: 26686
SB 1437 relief was not available on appeal and a defendant seeking relief must file a section 1170.95 petition in the sentencing court.Defendant was convicted of first degree murder and home invasion robbery. He argued the felony murder and natural and probable consequences doctrine effected by SB 1437 apply to his case. However, to obtain relief under that provision, defendant must file a Penal Code section 1170.95 petition in the sentencing court.id: 26690
Defendant charged with murder who later pled guilty to voluntary manslaughter was not eligible for SB 1437 relief.Defendant pled guilty to voluntary manslaughter in 2007. In 2019, he filed a petition pursuant to Penal Code section 1170.95, but the trial court summarily denied it on the ground that SB 1437 relief is only available to those convicted of murder. Contrary to defendant’s claim, those charged with murder under a felony-murder or natural and probable consequences theory but plead guilty to manslaughter in order to avoid a trial, are not eligible for SB 1437 relief.id: 26662
A person convicted of voluntary manslaughter, as opposed to murder, cannot invoke the resentencing provision of SB 1437.Defendant was convicted of voluntary manslaughter in 2013. In 2019, he filed a petition for resentencing under SB 1437, codified as Penal Code section 1170.95. However, the plain language of section 1170.95 makes clear that the provision only applies to defendants convicted of felony-murder or murder under a natural and probable consequences theory. Defendant was ineligible.id: 26636
SB 1437 relief applies only to murder convictions, and the defendant with a voluntary manslaughter conviction could not seek relief under the new law. Defendant was convicted of voluntary manslaughter in 2013. In 2019, he moved for resentencing under Penal Code section 1170.95 (SB 1437). However, section 1170.95 only applies to murder convictions and defendant’s exclusion from that process did not violate equal protection.id: 26633
Under SB 1437, the court determines whether the petitioner has made a prima facie showing of eligibility before appointing counsel.Defendant argued the trial court lacked jurisdiction to deny his Penal Code section 1170.95 petition on the merits without first appointing counsel. However, the trial court need not appoint counsel until petitioner has made a prima facie showing of eligibility. The trial court here correctly found defendant’s murder conviction was necessarily predicated on a finding that he acted with express malice, and therefore he was ineligible for relief under SB 1437.id: 26615
The trial court did not err in denying defendant’s request for counsel in relation to his SB 1437 petition where the record showed he was ineligible for relief.Defendant was convicted of second degree murder along with a true finding on a gun enhancement and was sentenced to 40 years-to-life. After the enactment of SB 1437, he filed a petition for resentencing pursuant to section 1170.95, and requested the appointment of counsel. However, the jury implicitly found he was the actual killer and he was therefore ineligible for relief. The trial court did not err in denying his request for counsel where he was undisputedly ineligible for relief.id: 26606
The trial court can consider the record of defendant’s conviction in determining whether he made a prima facie showing under SB 1437.Defendant was convicted of first degree murder in 2012. In January of 2019, he filed a petition for resentencing under SB 1437. Under Penal Code section 1170.95, defendant had to make a prima facie showing that he qualified for relief before further action was required. However, the trial court could, and did, review of the record of conviction (including the prior appellate opinion) in determining that defendant was ineligible for relief. Morever, because the defendant failed to make a prima facie case showing the statute applied, he was not entitled to the appointment of counsel.id: 26602
SB 1437 applies retroactively only through its resentencing procedures, which did not apply in defendant’s habeas proceeding.Defendant was convicted of first degree murder under two theories - felony murder based on attempted robbery, and murder as the natural and probable consequence of assault and battery. Defendant argued both theories are now invalid under SB 1437, and the second theory is invalid under People v. Chiu (2014) 59 Cal.4th 155. The first degree murder conviction is invalid under Chiu and In re Martinez (2017) 3 Cal.5th 1216 and the conviction should be reduced to second degree murder or remanded for retrial. However, SB 1437 is inapplicable as it applies retroactively only through its resentencing provision, which does not apply in defendant’s habeas corpus proceeding.id: 26501
Defendant’s murder conviction was invalid under SB 1437 and he should seek relief under section 1170.95. Defendant was convicted of first degree murder under the natural and probable consequences theory of aiding and abetting. The theory was abolished by SB 1437. Defendant should seek relief under the procedure described in Penal Code section 1170.95. id: 26402
SB 1437 does not apply retroactively to cases pending on appeal. Under SB 1437, a defendant must seek relief via the Penal Code section 1170.95 petitioning procedure, rather than on direct appeal.id: 26389
SB 1437 does not apply to attempted murder convictions. SB 1437 amended the law governing the application of the natural and probable consequences doctrine as it relates to murder. However, the law makes no mention of attempted murder and if the Legislature determines the omission of that offense from SB 1437 is inequitable it can amend the law. id: 26390
SB 1437 did not eliminate aider and abettor liability for attempted murder under the natural and probable consequences doctrine.SB 1437 eliminates aider and abettor liability for murder under the natural and probable consequences doctrine, and defendants were entitled to petition the trial court under Penal Code section 1170.95 in an effort to vacate the convictions. However, SB 1437 did not affect defendant’s convictions for attempted murder under the natural and probable consequences doctrine since that offense was not listed in SB 1437. The Legislature’s decision to limit reform to murder cases did not violate equal protection principles. id: 26375
Defendants cannot raise SB 1437 claim on appeal.Defendants argued for reversal of the murder convictions based on the recently adopted SB 1437, which provides that murder liability should not be 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. However, the claim cannot be raised in the appeal, and instead must be presented in the trial court pursuant to Penal Code section 1170.95.id: 26110
No reasonable juror would have found defendant (the getaway driver) acted with reckless indifference or was a major participant and so the special circumstance finding was vacated.Defendant was convicted in 1997, of murder, along with a true finding on the robbery-murder special circumstance. In 2015, the California Supreme Court decided People v. Banks (2015) 61 Cal.4th 788, and found /explained the issues of whether an aider and abettor is a major participant and acted with reckless indifference to human life — the issues that would allow an aider and abettor to qualify for the special circumstance. Defendant thereafter filed a habeas corpus petition based on Banks. Defendant supplied the others with guns and knew they were going to commit a robbery, but the killing afer the victim resisted was not planned. He was the getaway driver. Under the circumstances, the special circumstance did not apply. Banks was retroactive to defendant’s case that was already final on appeal. Moreover, this was not an improper use of habeas corpus as a second appeal (Waltreus).id: 26080
Defendants seeking retroactive relief under SB 1437 must proceed by way of a petition under section 1170.95. Defendant appealed his murder conviction and sought relief under the newly enacted Senate Bill 1437, which changes the law on the mental state required to be guilty of murder. It addresses felony murder and the natural and probable consequences doctrine, and adds Penal Code 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief. Defendants must proceed by way of a petition pursuant to section 1170.95 to be filed in the trial court and may not circumvent the process by seeking retroactive relief in the appeal. id: 26053
There was no Chiu error where the jurors were required to find that each defendant acted with the deliberation and premeditation required for murder.Defendant argued the trial court’s instruction on the natural and probable consequences theory of first degree murder violated the court’s holding in People v. Chiu (2014) 59 Cal.4th 155. However, unlike in Chiu, the jury was required to find that each defendant committed the crimes with the required deliberation and premeditation before it could find that defendant guilty of first degree murder.id: 25816
Chiu error was harmless where the record shows the jury relied on a valid theory of first degree murder.The aiding and abetting instruction was erroneous in light of People v. Chiu (2014) 59 Cal.4th 155, where the court found an aider and abettor cannot be held liable for first degree murder under a natural and probable consequences theory. However, the error was harmless where the jury relied on a valid theory of first degree murder as shown by the true finding on the special circumstance allegations.id: 25698
Following a probationary transfer, the original sentencing court is the proper venue for a Prop 47 resentencing petition.If a defendant has been placed on probation in one county but permanently resides in another, the case may be transferred to the county of residence. A defendant whose case has been transferred but seeks to file a Prop 47 petition seeking resentencing, must file the petition in the original sentencing court.id: 25646
People v. Chiu, which negates an aider and abettor’s liability under the natural and probable consequences doctrine for first degree murder does not apply to a torture charge. Defendant was convicted of torture under the natural and probable consequences theory of aiding and abetting. He argued that following People v. Chiu (2015) 59 Cal. 4th 155, that theory was improper because torture is focused on the mind of the perpetrator rather than on the pain inflicted on the victim. However, Chiu is limited to an aider and abettor’s liability on a natural and probable consequences theory for first degree murder.id: 24880
The erroneous inclusion of a reference to the natural and probable consequences theory of aiding and abetting was harmless where the prosecution didn’t rely on that theory.Defendant argued the trial court’s including of bracketed language from CALCRIM No. 400, referring to the natural and probable consequences doctrine required reversal of his convictions because the instruction did not require the prosecution to prove that the nontarget offenses were reasonably foreseeable. However, inclusion of that language was harmless where the prosecution didn’t rely on the natural and probable consequences doctrine, nor was there any evidence that the perpetrator committed another crime that was a natural and probable consequence of the intended offense.id: 24839
Chiu did not change the proposition that an accomplice may be convicted of attempted murder based on the mental state of the principal.An accomplice may be found guilty of attempted premeditated murder based on the mental state of the principal. That proposition remains valid after People v. Chiu (2014) 59 Cal.4th 155, where the court ruled a defendant may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine.id: 25448
The doctrine of natural and probable consequences does not violate the separation of powers.Defendant argued the natural and probable consequences theory of aiding and abetting liability violates the separation of powers because it lacks any statutory basis and only the Legislature can define crimes. However, the doctrine is properly justified under the court’s power to interpret the language of the Penal Code based on common law principles.id: 24382
An aider and abettor can be convicted of first degree lying-in-wait murder under the natural and probable consequences doctrine.Defendant argued that an aider and abettor cannot be convicted of first degree lying-in-wait murder under the natural and probable consequences doctrine unless lying-in-wait was reasonably foreseeable. However, the rule stated in People v. Chiu (2014) 59 Cal.4th 155, that an aider and abettor cannot be convicted of first degree premeditated murder under the natural and probable consequences doctrine, does not apply to lying-in-wait murder. A person can be convicted under his theory without any evidence that he or she personally lay-in-wait or intended the perpetrator to do so. Moreover, the trial court was not required to instruct that the theory only applies where lying-in-wait murder was reasonably foreseeable.id: 24118
Defendant was properly convicted of murder on a natural and probable consequence theory of aiding and abetting even if the identity of the killer was unknown.Defendant was convicted as an aider of the murder of two fellow gang members on the theory that murder was the natural and probable consequences of assault as the victims were being “jumped out” of the gang. Two rival gangs were at the scene, fights broke out and shots were fired. Defendant argued there was insufficient evidence to establish murder because the actual killer was unknown, and therefore there could be no derivative liability. Although the evidence showed Littleton (a member of the rival gang) likely fired the fatal shots, defendant could have been convicted of the murders despite uncertainty about who killed the victims.id: 23873
Simple assault can serve as the target offense for murder under the natural and probable consequence doctrine.Defendant argued that murder cannot be the natural and probable consequence of simple assault unless the assault is committed with a deadly weapon or by means of force likely to produce great bodily injury. However, simple assault can serve as the target offense for murder liability under the natural and probable consequences doctrine.id: 22327
The trial court did not err by instructing on the natural and probable consequences theory of aiding and abetting as to “simple” attempted murder, but not as to premeditated and deliberate attempted murder. Defendant argued the trial court erred by instructing the jury on the natural and probable consequences doctrine as to the nontarget offense of attempted murder but not as to the nontarget offense of attempted willful, deliberate and premeditated murder. However, it was sufficient that the jury was instructed on the elements of attempted murder based on natural and probable consequences, and on the requisite findings for willful, premeditated and deliberate attempted murder. Nothing more was required.id: 21892
Evidence supported murder as an aider and abettor under natural and probable consequences doctrine where the planned aggravated assault did not take place before the shooter killed the victim. Defendant argued the evidence was insufficient to support the murder conviction under the natural and probable consequences doctrine. However, the fatal shooting was a natural and probable consequence of a planned physical attack by multiple gang members upon perceived rival gang members even though the shooting occurred at the start of the confrontation and no assault with fists, knives or other weapons preceded the shooting. A defendant may be convicted under the natural and probable consequences doctrine even if the target criminal act (here assault with a baseball bat) was not committed. An aider and abettor may be liable where he aids one criminal act but the perpetrator commits another more serious but foreseeable act. Evidence establishing the gang-related nature of the planned assault showed that escalation of the confrontation to a deadly level was reasonably foreseeable.id: 21406
Defendants who participated in a fistfight where their gang associate eventually shot the victim were properly convicted of a murder as aiders and abettors under the natural and probably consequences
doctrine.Defendants participated in a fistfight that preceded the shooting. While Medina alone shot the victim, defendants were convicted of murder and attempted murder as aiders and abettors under the natural and probable consequences doctrine. There was sufficient evidence to support a finding that Medina’s act of firing the gun was a reasonably foreseeable consequence of the gang attack in which defendant’s
participated. The prosecution’s gang expert testified that defendants’ gang’s initial “Where are you from?” comment to the victim was likely to escalate into a physical confrontation and it should have been reasonably foreseeable to the gang members that the violence would escalate further depending on the victim’s response to the challenge.id: 21042
Evidence supported the murder conviction on an aiding and abetting theory where defendant encouraged his friend to shoot the victim.Evidence was sufficient to show that defendant aided and abetted the premeditated murder of Barajas. Defendant and the victim were members of rival tagging groups. Defendant and others confronted the victim in his front yard following a fight. Defendant encouraged another person to shoot the victim. He then fled the scene and helped dispose of the weapon. The evidence showed he knowingly encouraged the murder, or a firearm assault of which the murder was a natural and probable consequence.id: 20656
Defendant’s attempted premeditated murder conviction was reduced to attempted unpremeditated murder where he was convicted under the natural and probable consequences doctrine and the shooter was convicted of attempted unpremeditated murder.Defendant was convicted of aiding and abetting an assault, and that the natural and probable consequence of the assault was the attempted murder of the victim. However, defendant’s conviction for attempted premeditated murder was reduced to attempted unpremeditated murder because the shooter was convicted of attempted premeditated murder.id: 20613
Defendant who was convicted as an aider and abettor was subject to consecutive sentences for the attempted murder of multiple victims even though he arguably engaged in only a single unlawful act. Defendant was convicted as an aider and abettor of three counts of unpremeditated attempted murder among other things. The naming of separate counts was a circumstance on which the trial court could rely to impose consecutive sentences. Moreover, defendant who was convicted as an aider and abettor under the natural and probable consequences doctrine and arguably engaged in only a single unlawful act was nevertheless subject to consecutive sentences because of the wrongful conduct that resulted in harm to multiple victims. id: 20611
Witness intimidation is not a natural and probable consequence of vehicle burglary or illegal weapon possession.There was insufficient evidence to support defendant's conviction of witness intimidation since that conviction was based on an aiding and abetting theory of liability and witness intimidation was not a natural and probable consequence of either target offense, vehicle burglary or illegal weapon possession.id: 20239
Evidence that defendants left their car with a gun for the purpose of engaging in a fist fight supported the finding that the murder was a natural and probable consequence of the assault.Defendant argued the evidence was insufficient to sustain his conviction for aiding and abetting the murder of Llamas on the natural and probable consequences theory, because there was no evidence that he knew Jimenez was armed or intended to use a firearm in a fistfight. However, the undisputed evidence shows three defendants stopped and exited their car to engage in a fight with the victim. There was substantial evidence that Jimenez was armed with a gun as he ran to the scene, that the men grappled for the gun, and that defendant yelled "shoot him." The standard instructions were facilitated by the jury's determination that, under these circumstances, defendant's murder was a natural and probable consequence of the assault.id: 14837
The court did not err by not giving the CALJIC 3.02 instruction concerning liability for natural and probable consequences for purposes of determining whether a witness was an accomplice.Defendant argued for the first time on appeal, that the trial court should have instructed on its own initiative on the target offense of simple assault as a predicate for a finding that a prosecution witness was an accomplice on a natural and probable consequences aiding and abetting theory. Since the witness could have been viewed as an accomplice under that theory, defendant claimed there was a sua sponte duty to instruct under CALJIC 3.02 and the elements of the target offense of simple assault. However, the sua sponte duty to instruct on target offenses only arises where the prosecution relied on the natural and probable consequences theory. If the prosecutor failed to identify a target crime, then no instruction may be given under CALJIC 3.02 on a natural and probable consequences aiding and abetting theory. This statement which applies to instructions on the liability of a charged offense also applies to instructions which related to possible aiding and abetting liability and cautionary accomplice testimony instructions.id: 16924
A person may be convicted of attempted murder under a natural and probable consequences aiding and abetting theory even if he or she did not personally premeditate the act.Defendant argued the instructions given improperly allowed the jurors to find premeditation for attempted murder, even though she was an aider and abettor who did not share the intent of the principals. However, a person may be convicted of premeditated attempted murder as an aider and abettor even if he or she did not personally act with deliberation and premeditation. This applies in a case involving the natural and probable consequences doctrine. Even if the instructions on premeditation were improper, the error was harmless where the jurors also convicted defendant of conspiracy to commit murder which requires a finding of premeditation and deliberation.id: 20036
The trial court did not err by failing to instruct on the target offense where the CALCRIM instruction which mentioned "natural consequences" had nothing to do with aiding and abetting.Defendant argued the trial court erred in failing to instruct on the need to identify and describe the target offense after the court instructed on "natural consequences" for purposes of CALCRIM No. 520. However, defendant confused "natural consequences" in this implied malice second degree murder case with the aiding and abetting natural and probable consequences theory which did not apply. There was no duty to instruct on
a target offense.id: 19816
The trial court did not err in selecting a target offense for the natural and probable consequences doctrine.Defendant was convicted of attempted murder based on the
natural and probable consequences doctrine. The trial court acted within its discretion when it rejected the prosecution's identification of breach of the peace as a target offense, but stated it intended to allow the target offense of assault with a deadly weapon, and then heard the argument. The trial court's actions complied with its duties under People v. Prettyman (1996)14 Cal.4th 298) and resulted in an increase in the prosecution's burden of proof.id: 19354
The court properly instructed on aider and abettor liability as it was reasonably foreseeable that the victim would die after being stabbed in the heart. Defendant argued the trial court erred when it instructed the jury that an aider and abettor to assault could be
liable for murder if death was a natural and probable consequence of the assault. Contrary to defendant's claim, the evidence showed death was reasonably foreseeable where the assailant stabbed the victim in the heart with a knife. Moreover, the facts did not trigger application of the
Ireland merger doctrine.id: 19127
Evidence supported defendant's second degree murder conviction based on the doctrine of natural and probable consequences where she assisted Stahl in hiring a violent sociopath to kill his wife, and the hit man then killed Stahl after being paid under the murder contract.Evidence supported defendant's second degree murder conviction based on the natural and probable consequence of his wife's murder. Defendant admitted she knew Stahl hired Godley to kill Stahl's wife, and there was ample evidence defendant facilitated the murder by introducing Godley to Stahl and purchasing a gun. Defendant also knew first-hand that Godley was a dangerous, violent paranoid sociopath who associated with hired killers. The jury could reasonably conclude it was foreseeable such a violent individual would have an incentive to eliminate Stahl as a witness after Stahl paid him the entire amount under the murder contract.id: 18674
Trial court did not err in instructing the jury it had to find a premeditated attempted murder was the natural and probable consequence of the carjacking.Defendant was convicted of attempted murder as a natural and probable consequence of the carjacking. He argued the trial court erred in failing to instruct the jury it had to find that a premeditated attempted murder had to be a natural and probable consequence of the carjacking. However, the Legislature could reasonably have determined that an attempted murderer who is guilty as an aider and abettor, but who did not personally act with willfulness, deliberation and premeditation, was sufficiently blameworthy to receive a life term.id: 18424
Attempted murder was a natural and probable consequence of the carjacking even though defendant claimed surprise when his codefendant pushed the victim off the cliff.Defendant was convicted of attempted murder on the theory that it was a natural and probable consequence of the planned carjacking and robbery. He argued the evidence was insufficient to show the attempted murder by codefendant Cummins who pushed the victim off the cliff on an impulse, was a natural and probable consequence of the robbery. However, the two defendants robbed the victim at gunpoint, bound him (later using a taser) and placed him in the trunk of the car. Defendant ordered him to crawl under the fence when he was brought to the cliff area. Defendant was a full participant in the incident and even though Cummins may have pushed the victim, the event was not an unanticipated surprise.id: 18423
Instructions did not permit murder conviction under natural and probable consequences doctrine, based on inaction associated with felony child abuse.Defendants were convicted of murder and felony child abuse involving a seven month-old child. It was unclear which defendant actually struck the child. Defendants argued that aiding and abetting liability - particularly liability under the natural and probable consequences doctrine - requires an affirmative act, whereas felony child abuse can be committed by an omission to act. However, the instructions made clear the defendants could not be convicted of felony child abuse as an aider and abettor based solely on inaction. It follows that defendants could not be convicted of murder, under the natural and probable consequences doctrine, based solely on inaction.id: 15312
The trial court did not err in failing to instruct with CALJIC 3.02 in felony-murder case where it instructed that the target offense was robbery and all elements of the target offense and aiding and abetting liability were fully described.In <i>People v. Prettyman</i> (1996) 14 Cal.4th 248, the court determined CALJIC 3.02 is the appropriate instruction to be given where the prosecution proceeds on the theory that the defendant aided and abetted a felony which resulted in a killing where the killing was a natural and probable consequence of the felony. Defendant argued the trial court prejudicially erred in failing to deliver CALJIC 3.02. However, the instructions given met all of the <i>Prettyman</i> requirements. The target offense was robbery. It was identified and all of the relevant elements of the target crime and aiding and abetting liability were fully described. There was no requirement that CALJIC 3.02 also be read to the jury.id: 15315
Aiding and abetting instructions were not flawed since attempted murder was foreseeable in gang confrontation even though defendant did not know his fellow gang member was armed.Instructing on aiding and abetting, the trial court stated defendant could be convicted of attempted murder if the offense was a natural and probable consequence of simple assault or breach of the peace for fighting in public among other offenses. Defendant argued the listed offenses were improperly included as predicate offenses because there is no evidence that he knew Cuevas was armed. However, under the circumstances, the target offenses of simple assault and breach of the peace were not trivial. They arose in the context of an ongoing rivalry between two street gangs during which the gangs acted violently toward each other. Where it was clear the chain wielding defendant and his gang would overpower the victim's gang, a member of that gang shouted something about a gun which prompted Cuevas to obtain a gun and shoot the victim.id: 15307
There is no requirement that killings which occur during the perpetration of a felony be the natural and probable consequence of the felony aided and abetted.Defendant argued the trial court erred in failing to instruct the jury that an aider and abettor's liability for felony-murder depends upon a finding that the killing was the natural and probable consequence of the felony aided and abetted. However, there is no such requirement and defendant was guilty of felony-murder if he aided and abetted a kidnapping and a person was killed during the kidnapping. Even if the natural and probable consequence modification applied to felony-murder, instructions would need to be requested by defendant.id: 9642
Failure to instruct on the target offenses for aiding and abetting was harmless where the range of potential offenses was clear.Defendant was convicted of second degree murder on an aiding and abetting theory. The trial court erred in failing to instruct sua sponte on the potential target crimes defendant aided and abetted since the prosecution elected to rely on the natural and probable consequences theory and the evidence supported instructions on that theory. However, the error was harmless where the conduct forming the basis for an NPC finding was crystal clear, defendant passed Lucas the gun inside the car just before Lucas shot the victim. The range of potential offenses was in no way mysterious.id: 9631
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
The case of the day summarizes a current case and is viewed by lawyers and judges around the state every day.
Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245