Error and/or relief
The court erred in concluding that the defendant was, as a matter of law, ineligible under section 1172.6 to seek recall of the early 2000s murder conviction. The court’s order denying defendant’s petition for resentencing is reversed and the matter is remanded with directions for the trial court to issue an order to show cause and hold further proceedings consistent with section 1172.6(d).
First Holding:
SB 1437, effective on January 1, 2019, amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.
It amended section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it added what is now now section 1172.6, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.
Section 188 now provides that, except as stated in section 189(e), in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.
Authority:
PEN 188
PEN 189
Second Holding:
Under section 189(e), a participant in the perpetration or attempted perpetration of a felony listed in section 189(a) in which a death occurs is liable for murder only if one of the following is proven:
(1) The person was the actual killer.
(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2(d).
Authority:
PEN 189(e)
Third Holding:
SB 775, effective January 1, 2022, extended SB 1437’s application to those convicted of attempted murder under the natural and probable consequences doctrine.
Authority:
PEN 1172.6
Fourth Holding:
Upon receiving a petition, if the petitioner has requested counsel, the court must appoint counsel to represent the petitioner. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.
Authority:
PEN 1172.6(b), (c)
Fifth Holding:
The record of conviction will necessarily inform the trial court’s prima facie inquiry under section 1172.6, allowing the court to distinguish petitions with potential merit from those that are clearly meritless.
At the prima facie inquiry stage, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.
If so, the court must issue an order to show cause. However, if the record, including the court’s own documents, contains facts refuting the allegations made in the petition, then the court is justified in making a credibility determination adverse to the petitioner. In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in factfinding involving the weighing of evidence or the exercise of discretion.
Authority:
People v. Lewis (2021) 11 Cal.5th 952, 971-972
Sixth Holding:
If the petitioner has made a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. Within 60 days after the order to show cause has issued, the trial court must then hold a hearing “to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.
Authority:
PEN 1172.6(c), (d)
Seventh Holding:
In Morris, the Supreme Court construed the language in section 189(e) on the liability of one aiding and abetting first degree murder to require proof the defendant aided or abetted the actual killer in the lethal act itself, and not just the underlying felony.
Authority:
People v. Morris (2026) 19 Cal.5th 671, 678, 681-686
Eighth Holding:
The jury here was instructed that, if the jury determined that the defendant was not the killer, the defendant could be convicted of murder if the jury found that the defendant, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of robbery, kidnapping, and/or carjacking that resulted in the death of the named human being.
Such a finding is insufficient under Morris to establish the requisite actus reus to the extent the defendant was convicted as a nonkiller.
Authority:
People v. Morris (2026) 19 Cal.5th 671, 683