Tag Archives: SB 1437

Generically SB 1437 and SB 775 regarding redefining vicarious liability for murder and attempted murder and the process for obtaining relief and resentencing.

Abstracts and Minutes, Amelioration, Elements of crime, Sentencing, Vicarious liability

Case: 000260

Posted on by Gary McCurdy

Error and/or relief

At the defendant’s hearing on his petition filed under section 1172.6 for recall of sentence in light of the changes in homicide law, the trial court denied the defendant’s resentencing petition on the ground the evidence established beyond reasonable doubt he aided and abetted an implied malice murder. The trial court did not conclude that the defendant was the direct perpetrator or an aider and abettor in an express malice murder. The trial court misidentified the relevant life-endangering act and thereby used an incorrect legal standard for determining the defendant’s mens rea for aiding and abetting implied malice murder.

We therefore reverse and remand with directions to the trial court to conduct a new evidentiary hearing using the correct life-endangering act and consistent with this opinion. The trial court did not address the defendant’s convictions on counts 2 through 4 for attempted murder. Sentencing relief under section 1172.6 extends to attempted murder. In conducting a new evidentiary hearing following remand, the court shall make findings and rule on the defendant’s resentencing petition on the attempted murder convictions. The amended abstract of judgment indicates that the defendant pleaded guilty to second degree murder. That is incorrect: He was convicted by a jury, not pursuant to a plea agreement. The abstract of judgment must be corrected accordingly.

First Holding:

The trial court denied the defendant’s resentencing petition on the ground the evidence established beyond reasonable doubt he aided and abetted an implied malice murder. The trial court did not conclude that the defendant was the direct perpetrator or an aider and abettor in an express malice murder.

Murder is committed with implied malice when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. A defendant may directly aid and abet an implied malice murder. Notwithstanding Senate Bill 1437’s elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.

Authority:

People v. Knoller (2007) 41 Cal.4th 139, 143

People v. Reyes (2023) 14 Cal.5th 981, 990

Second Holding:

Direct aiding and abetting is based on the combined actus reus of the participants and the aider and abettor’s own mens rea. In the context of implied malice, the actus reus required of the perpetrator is the commission of a life-endangering act. For the direct aider and abettor, the actus reus includes whatever acts constitute aiding the commission of the life-endangering act. Thus, to be liable for an implied malice murder, the direct aider and abettor must, by words or conduct, aid the commission of the life-endangering act, not the result of that act. The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990-991

Third Holding:

A life-endangering act is the act that proximately causes death. To be considered the proximate cause of the victim’s death, the defendant’s act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. Here, the life-endangering act was the shooting by the co-defendant at the vehicle carrying the victim.

Authority:

People v. Powell (2021) 63 Cal.App.5th 689, 713, fn. 27

People v. Jennings (2010) 50 Cal.4th 616, 643

Fourth Holding:

Although a homicide might have more than one proximate cause, to suffice for implied malice murder, the perpetrator’s act must not merely be dangerous to life in some vague or speculative sense; it must involve a high degree of probability that it will result in death.

Authority:

People v. Garcia (2022) 82 Cal.App.5th 956, 963

People v. Reyes (2023) 14 Cal.5th 981, 989

Fifth Holding:

The co-defendant perpetrator’s act of bringing the gun to the anticipated confrontation with the other gang did not in itself give rise to a high probability that death would result. Rather, that act merely created a dangerous situation in which death was possible depending on how circumstances unfolded. Deeming a life-endangering act to be the act of the co-defendant perpetrator bringing the gun to the fight comes precariously close to a natural and probable consequences theory of liability: Bringing the gun to a gang fight becomes life endangering only because a natural and probable consequence of doing so is the gun is fired and someone is killed. [GARY NOTE: Implicit in that example is that the change in the homicide law eliminated the natural and probable consequences rationale as supporting a murder conviction of the non-killer.]

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 989

Sixth Holding:

By misidentifying the life-endangering act committed by the perpetrator, the trial court used the incorrect legal standard for determining mens rea for aiding and abetting implied malice murder.

Authority:

People v. Reyes (2023) 14 Cal.5th 981, 990–991 [using incorrect life-endangering act constitutes legal error]

Seventh Holding:

We have the ability to order the correction of clerical errors in an abstract of judgment.

Authority:

People v. Mitchell (2001) 26 Cal.4th 181, 185–187

Amelioration, Sentencing, Standard of review

Case: 000251

Posted on by Gary McCurdy

Error and/or relief

Though the trial court did not err in concluding that the defendant’s bare assertions of eligibility for relief in his petition to recall his sentence under section 1172.6 were belied by the record of conviction, the matter was remanded to the trial court to give the defendant the opportunity to file an amended petition.

First Holding:

Senate Bill No. 1437 amended the statutes defining malice (section 188) and felony murder (section 189, subd. (e)) to eliminate natural and probable consequences liability for murder as it applies to aiding and abetting, and limit the scope of the felony-murder rule. It also added former section 1170.95, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Effective January 1, 2022, Senate Bill No. 775 amended section 1170.95 to extend the resentencing procedures to a person convicted under any other theory under which malice is imputed to a person based solely on that person’s participation in a crime. Former section 1170.95 has since been renumbered as section 1172.6, with no substantive changes.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 957

Second Holding:

If a section 1172.6 petition contains all required information (e.g., declaration of eligibility, case information, any request for appointed counsel), the trial court must review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of section 1172.6. If the petitioner has made this initial prima facie showing, he or she is entitled to appointed counsel, if requested, and the prosecutor must file a response, and the petitioner may file a reply. The court then reviews the petition a second time. If it concludes in light of this briefing that the petitioner has made a prima facie showing of entitlement to relief, it must issue an order to show cause and hold an evidentiary hearing to determine whether to vacate the murder conviction and recall the sentence and resentence the petitioner on any remaining counts.

Authority:

People v. Roldan (2020) 56 Cal.App.5th 997, 1003

Third Holding:

When conducting the prima facie review, the trial court must assume the truth of the petition’s allegations unless they are refuted by the record of conviction. If a petition is supported only by conclusory, checkbox allegations and the preliminary hearing transcript contains unchallenged, relief-foreclosing facts, then the trial court may deny the petition at the prima facie stage. This is because a section 1172.6 petitioner who, despite having access to counsel upon submission of a facially sufficient petition, offers only conclusory allegations of entitlement to relief, in response to a record of conviction that demonstrates the petitioner’s conviction was under a still-valid theory, has not, thereby, made a prima facie showing.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971

People v. Patton (2025) 17 Cal.5th 549, 564-566

Fourth Holding:

However, petitioners need not, at the prima facie stage, meet an evidentiary burden of proof to establish entitlement to relief, such as the burden of proof applicable to the People if trying to defeat relief at the later section 1172.6, subdivision (d)(3) evidentiary hearing. Rather, petitioners confronting a record of conviction that demonstrates relief is unavailable have the burden of coming forward with nonconclusory allegations to alert the prosecution and the court to what issues an evidentiary hearing would entail.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 566-567

Fifth Holding:

We review de novo whether the record of conviction establishes that the petitioner is ineligible for resentencing relief.

Authority:

People v. Lopez (2022) 78 Cal.App.5th 1, 14

Sixth Holding:

The court properly considered the preliminary hearing transcript to make a prima facie determination that defendant was the actual killer and thus ineligible for resentencing.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563

Seventh Holding:

Defendant requests that, if we affirm, we should remand with directions to afford him 30 days to amend his petition to plead additional facts. Because defendant did not have the benefit of Patton’s guidance during the prima facie stage before the trial court, we grant his request.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 569-570

People v. Glass (2025) 110 Cal.App.5th 922, 930

Amelioration, Sentencing

Case: 000239

Posted on by Gary McCurdy

Error and/or relief

Here, where the petition was facially sufficient, it was error to deny the defendant’s petition for recall of sentence under section 1172.6 at the prima facie stage without appointing counsel and without a hearing. The trial court in this case appointed no counsel, conducted no hearing, and did not consider briefing, arguments of either party, or any other portion of the trial record, which necessarily informs the prima facie inquiry. On this record, with multiple participants in the shooting incident, as well as the jury’s instruction on the natural and probable consequences doctrine, a theory of implied malice, we cannot say it would be a waste of judicial resources to send the case back to the trial court to conduct its obligations under section 1172.6.

First Holding:

Effective January 1, 2019, the Legislature eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. It also added section 1170.95, now section 1172.6, to provide a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief. Thereafter, it expanded the path to resentencing under the law to allow relief for those with attempted murder convictions based on the natural and probable consequences doctrine.

Authority:

People v. Antonelli (2025) 17 Cal.5th 719, 723-724

People v. Patton (2025) 17 Cal.5th 549, 558

Second Holding:

A petition under section 1172.6 that includes a declaration by petitioner that the petitioner is eligible for relief , based on all the requirements of section 1172.6, subdivision (a), the case number and year of the petitioner’s conviction, and whether the petitioner seeks counsel is facially sufficient and entitles the petitioner to counsel.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 558-559

Third Holding:

The prima facie inquiry is limited A petitioner’s allegations should be accepted as true, and the court should not make credibility determinations or engage in factfinding involving the weighing of evidence or the exercise of discretion. The record of conviction will necessarily inform the trial court’s prima facie inquiry, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. Indeed, in assessing petitions from individuals convicted after a jury trial, the jury instructions will be critical. The record of conviction also includes documents such as verdict forms. If the record [of conviction, 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. The court may deny the petition at the prima facie stage only if the record of conviction conclusively establishes that the petitioner is ineligible for relief as a matter of law.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 971, 974

People v. Strong (2022) 13 Cal.5th 698, 720 [factfinding is prohibited at the prima facie stage]

People v. Antonelli (2025) 17 Cal.5th 719, 731

People v. Patton (2025) 17 Cal.5th 549, 563

People v. Gallardo (2024) 105 Cal.App.5th 296, 301

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

People v. Hickman (2025) 110 Cal.App.5th 1262, 1268

Amelioration, Standard of review, Vicarious liability

Case: 000211

Posted on by Gary McCurdy

Error and/or relief

Earlier, the defendant pleaded guilty to the first degree murder and admitted a firearm enhancement, admitting that he personally and intentionally discharged a firearm and proximately caused great bodily injury and death to another person, who is not an accomplice. The trial court denied his petition for resentencing under section 1172.6 at the prima facie stage. He has not, at this juncture, made a prima facie case for relief under section 1172.6 in light of the record of conviction. Out of an abundance of caution, we remand the matter to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

First Holding:

In 2018, the Legislature enacted SB 1437 to modify accomplice liability for murder and the felony-murder rule. It eliminated natural and probable consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony-murder rule. Section 1172.6 is the new law’s procedure allowing people convicted of murder under the old law to petition for an order vacating their convictions and resentencing them on remaining counts if they could not now be convicted because of the changes made to sections 188 and 189 by SB 1437.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563, 569–570

People v. Mares (2024) 99 Cal.App.5th 1158, 1164

Second Holding:

Regarding the prima facie 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 the factual allegations were proved. If so, the court must issue an order to show cause. A court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing. 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.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 563

Third Holding:

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. The preliminary hearing transcript preceding a guilty plea is part of the record of conviction that may be consulted at the prima facie stage. When, as here, the petitioner’s conviction resulted from a guilty plea rather than a trial, the record of conviction includes the facts the defendant admitted as the factual basis for a guilty plea. It also includes the petitioner’s express admissions at the plea colloquy.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 564, 568-569

People v. Glass (2025) 110 Cal.App.5th 922, 927

Fourth Holding:

We review the denial of a petition at the prima facie stage de novo.

Authority:

People v. Saavedra (2023) 96 Cal.App.5th 444, 447

Fifth Holding:

As in Patton, and out of an abundance of caution, we will grant the defendant’s request to remand the matter to permit him to plead additional facts. We therefore will order a remand to the trial court with directions for that court to consider an amended petition should the defendant, within 30 days of that remand, seek to file one.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 569-570

Amelioration, Sentencing

Case: 000186

Posted on by Gary McCurdy

Error and/or relief

The defendant—whom a jury convicted of first degree murder in 1992—appeals the trial court’s order denying his Penal Code section 1172.6 resentencing petition at the prima facie stage. He contends he is entitled to an evidentiary hearing on his petition because the jury might have convicted him as a mere participant—rather than as the actual killer—under a felony murder theory of liability. The record of conviction, however, reveals no path permitting the jury to convict him as anything other than the actual killer. And he puts forth no specific facts that identify someone else as the direct perpetrator. Nor does he challenge any other elements of his conviction. We therefore conclude the court properly denied the petition, but we remand to give the defendant the opportunity to file an amended petition to address its current deficiencies.

Holding:

The record of conviction reveals no path permitting the jury to convict the defendant as anything but the actual killer. Out of an abundance of caution, however, we grant his request for an opportunity on remand to plead additional relevant facts in support of his petition. Accordingly, we conditionally affirm.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 567

People v. Curiel (2023) 15 Cal.5th 433, 462

People v. Glass (2025) 110 Cal.App.5th 922, 925

Amelioration, Sentencing, Standard of review

Case: 000183

Posted on by Gary McCurdy

Error and/or relief

The trial court denied the defendant’s petition for recall filed under Penal Code section 1172.6 his attempted murder conviction. His guilty plea did not conclusively establish his ineligibility for resentencing as a matter of law and the court improperly engaged in factfinding to determine his eligibility for relief. We conclude the court erred in denying the petition at the prima facie stage without issuing an order to show cause. Because the record does not conclusively show that the defendant acted with the specific intent to kill, it cannot establish ineligibility for section 1172.6 relief as a matter of law. At minimum, the petition raised a factual question requiring further inquiry, and the trial court was not permitted to resolve that question against him at the prima facie stage.

First Holding:

When evaluating a petition for resentencing under section 1172.6, the trial court must determine at the prima facie stage whether the petitioner made a showing entitling them to relief. Although the court may consult the record of conviction to assess eligibility, it is prohibited from engaging in factfinding, weighing the evidence, or exercising its own discretion. The court generally must accept the petitioner’s factual allegations as true unless they are conclusively refuted by the record of conviction.

A court may deny a petition at the prima facie stage only if the record of conviction demonstrates, incontrovertibly and as a matter of law, that the petitioner is ineligible for relief. Unless the record “conclusively establishes” that the defendant committed the acts and harbored the mental state required for liability under a still-valid theory, the allegations of the petition may not be disregarded. And if the petitioner could, at an evidentiary hearing, present evidence rebutting the record, the matter necessarily involves factual determinations that cannot be resolved at the prima facie stage.

Authority:

PEN 1172.6

People v. Lewis (2021) 11 Cal.5th 952, 971, 972

People v. Ervin (2021) 72 Cal.App.5th 90, 101

People v. Rivera (2021) 62 Cal.App.5th 217, 230

People v. Estrada (2024) 101 Cal.App.5th 328, 339

Second Holding:

Applying these principles, we independently review the trial court’s denial of resentencing. We review factual findings for substantial evidence but evaluate the trial court’s legal conclusions de novo. Under this standard, the record of conviction does not conclusively establish that the defendant is ineligible for relief as a matter of law.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

People v. Arnold (2023) 93 Cal.App.5th 376, 383

Third Holding:

Before SB 1437 and 775, a defendant could be convicted of attempted murder either by directly aiding and abetting with the intent to kill or under the natural and probable consequences doctrine. Following those statutory amendments, liability based on the natural and probable consequences doctrine is no longer valid for attempted murder, but direct aiding and abetting with intent to kill remains a valid theory. A petitioner is therefore eligible for resentencing only if the conviction could have been based on the natural and probable consequences doctrine.

Because the defendant’s plea is fully consistent with both theories—(1) direct aiding and abetting with intent to kill, and (2) aiding another offense whose natural and probable consequence was attempted murder—the record does not foreclose the latter, invalid theory. The absence of any explicit admission of intent to kill is critical. A defendant’s guilty plea to attempted murder does not, by itself, establish that he personally harbored express malice; defendants routinely plead to charges for reasons unrelated to their precise mental state, including the reasonable belief that a jury might convict under an at-the-time valid imputed-malice theory.

Authority:

People v. Rodriguez (2024) 103 Cal.App.5th 451, 456–457

People v. Coley (2022) 77 Cal.App.5th 539, 546, 548

Amelioration, Duty of the court, Sentencing, Standard of review, Vicarious liability

Case: 000181

Posted on by Gary McCurdy

Error and/or relief

The trial court employed an incorrect standard of review for determining whether the defendant’s petition for recall of sentence under Penal Code section 1172.6 should be denied. Reversed and remanded for another new hearing.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life. The legislation amended section 188 to provide that, except in cases of felony murder, in order to be convicted of murder, a principal in a crime shall act with malice aforethought.

It also created, in what is now section 1172.6, a mechanism for individuals convicted of qualifying offenses to petition for resentencing. If the trial court finds that a petitioning defendant has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. At that hearing, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019.

Authority:

PEN 1172.6

PEN 188(a)

People v. Reyes (2023) 14 Cal.5th 981, 986,

Second Holding:

On appeal from the denial of a section 1172.6 petition after an evidentiary hearing, the appellate court reviews the superior court’s factual findings for substantial evidence and the court’s application of the law to those facts de novo.

Authority:

People v. Hill (2024) 100 Cal.App.5th 1055, 1066

Third Holding:

For the trial court to properly conclude, beyond a reasonable doubt, that defendant here was guilty of murder under the law as amended, the People had to prove he was the actual killer, or that he directly aided and abetted the murder and thus possessed malice aforethought. Felony murder is not at issue in this case.

Authority:

People v. Strong (2022) 13 Cal.5th 698, 710 [sec. 1172.6 relief is unavailable if the defendant was the actual killer]

People v. Gentile (2020) 10 Cal.5th 830, 848 [SB 1437 does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought], [abrogated on another ground as stated in People v. Oyler (2025) 17 Cal.5th 756, 836]

Fourth Holding:

It was an error for the trial court to conclude that the court had to determine whether the People could prove they could obtain a conviction of the defendant based on basic accomplice liability or whether he acted with reckless disregard for the life of the victim. The correct standard for the trial court at defendant’s section 1172.6 evidentiary hearing was whether the prosecution has proved, beyond a reasonable doubt, that defendant is guilty of murder under California law as amended.

The trial court’s reference to whether defendant acted with reckless disregard for life is inapposite, because that aspect is relevant only in the context of whether a defendant was a major participant in the commission of a different felony who acted with reckless indifference to human life–i.e., it is relevant only to felony murder, which is not at issue in this case. Further, the trial court found beyond a reasonable doubt that a reasonable jury would convict the defendant as he was charged. But at the section 1172.6 hearing, it is the trial court that is the fact finder tasked with holding the People to the beyond a reasonable doubt standard.

Authority:

People v. Harris (2024) 105 Cal.App.5th 623, 632

Abstracts and Minutes, Amelioration, Sentencing

Case: 000158

Posted on by Gary McCurdy

Error and/or relief

Defendant appeals the trial court’s resentencing order, arguing prejudicial error occurred because he was not present at the resentencing hearing in the 1172.6 proceedings and did not waive his constitutional right to be present. We reverse and remand the matter with directions to hold a new hearing with defendant present or to obtain a valid waiver. The abstract of judgment currently reflects that he waived his presence, but this is incorrect, and it must be corrected if the defendant does not waive his presence on remand.

First Holding:

Penal Code section 1172.6 permits resentencing for a person convicted of murder, attempted murder, or manslaughter under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime. if a prima facie case for relief is made, the statute requires an evidentiary hearing where the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty under the revised law. At this hearing, the court may consider evidence previously admitted at any prior hearing,” and the “prosecutor and the petitioner may offer new or additional evidence.

Authority:

PEN 1172.6

Second Holding:

A defendant has the constitutional right to be personally present in court where necessary to protect the defendant’s opportunity for effective cross-examination, or to allow the defendant to participate at a critical stage and enhance the fairness of the proceeding. This right is guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution, as well as article 1, section 15 of the California Constitution. Because a section 1172.6 hearing allows the court to potentially vacate a murder sentence through the admission of new evidence or by reweighing prior evidence, it is a critical stage and, as such, requires either a defendant’s presence or a valid waiver.

Authority:

People v. Quan (2023) 96 Cal.App.5th 524, 532

People v. Basler (2022) 80 Cal.App.5th 46, 57

People v. Jackson (2025) 110 Cal.App.5th 128, 150-151

Third Holding:

The minute order asserts defendant waived his presence, but this conflicts with the transcript of the hearing and we presume the reporter’s transcript is more accurate.

Authority:

Garner v. BNSF Railway Co. (2024) 98 Cal.App.5th 660, 668

Fourth Holding:

Because a defendant’s absence from a critical stage in criminal proceedings is constitutional error, to be harmless it must be found beyond a reasonable doubt defendant’s absence did not affect the outcome of the proceeding.

Authority:

Chapman v. California (1967) 386 U.S. 18, 24

People v. Nieves (2021) 11 Cal.5th 404, 461

People v. Mendoza (2016) 62 Cal.4th 856, 902

Amelioration, Elements of crime, Sentencing, Standard of review

Case: 000145

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals the trial court’s denial of his resentencing petition under Penal Code section 1172.6 for failure to state a prima facie case. Because the record of conviction before us does not conclusively establish that defendant is ineligible for resentencing as a matter of law, we reverse and remand the matter for an evidentiary hearing.

First Holding:

SB 1437 (2017-2018 Reg. Sess.) narrowed the scope of the felony-murder rule and eliminated the natural and probable consequences doctrine as a basis for murder liability. The Legislature did so 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 also added section 1172.6, which allows those convicted of murder, attempted murder, or manslaughter under a now-invalid theory to petition the trial court to vacate the conviction and resentence the defendant. In its current form, section 1172.6 applies to those who pled guilty to manslaughter after being charged with murder and who would have been subject to prosecution for murder under a felony-murder theory, the natural and probable consequences doctrine, or any other theory of imputed malice

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 448-449

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211

Second Holding:

If the trial court finds that a petitioning defendant has made a prima facie showing of entitlement to relief, the court must issue an order to show cause and hold an evidentiary hearing. The prima facie inquiry under section 1172.6(c) is limited. 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. The court may rely on the record of conviction in determining whether defendant has made a prima facie showing, and 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.

Authority:

PC 1172.6(c) and (d)

People v. Lewis (2021) 11 Cal.5th 952, 971

Third Holding:

At the prima facie stage, the record of conviction includes a preliminary hearing transcript preceding a guilty plea. A trial court does not engage in impermissible judicial factfinding and may rely on a preliminary hearing transcript where it is unchallenged and includes relief-foreclosing facts that refute conclusory, checkbox allegations.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 564, 568

Fourth Holding:

We independently review the denial of a section 1172.6 petition at the prima facie stage. If it was correct to deny a defendant’s section 1172.6 petition at the prima facie review stage, we will affirm even if the trial court’s reasoning was erroneous.

Authority:

People v. Ervin (2021) 72 Cal.App.5th 90, 101

People v. Eynon (2021) 68 Cal.App.5th 967, 976

Fifth Holding:

The charging document is insufficient on its own to foreclose a theory of either felony murder or natural and probable consequences murder, where it alleged that defendant unlawfully murdered the victim, willfully and with malice aforethought, in violation of section 187, subdivision (a), does not refer to another defendant, and the only other felonies at issue were related to unlawful firearm possession or activity.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328, 337-338 [because an accusatory pleading need not specify the manner in which a murder was committed, or the theory on which the prosecution will rely at trial, a complaint that only generically charges attempted murder (or murder) is not enough to establish a sec. 1172.6 petitioner is ineligible for relief at the prima facie stage]

Sixth Holding:

In pleading guilty to voluntary manslaughter, defendant admitted every element of voluntary manslaughter, but not to any particular theory, meaning it is possible that defendant could have been convicted under an imputed malice theory. Thus, defendant’s guilty plea to voluntary manslaughter does not make him ineligible for relief under section 1172.6 as a matter of law.

Authority:

People v. Eynon (2021) 68 Cal.App.5th 967, 977-978

People v. Gaillard (2024) 99 Cal.App.5th 1206, 1212 [generic plea of voluntary manslaughter following murder charge does not preclude a natural and probable consequences theory]

Seventh Holding:

Absent additional facts, defendant’s admission of the two firearm enhancements does not establish he is ineligible for resentencing as a matter of law.

Authority:

People v. Estrada (2024) 101 Cal.App.5th 328,at p. 338 [admitting to personally using a deadly weapon does not preclude a theory of imputed malice]

People v. Jones (2003) 30 Cal.4th 1084, 1120 [a finding of personal use of a firearm would not in itself prove the defendant was the actual killer]

Amelioration, Sentencing

Case: 000143

Posted on by Gary McCurdy

Error and/or relief

The defendant appeals from the superior court’s order denying his petition for resentencing under Penal Code section 1172.6 (former section 1170.95) as to his second-degree murder conviction by a no-contest plea. The court denied the petition at the prima facie stage without appointing counsel, concluding the defendant was not entitled to relief as a matter of law. The People concede the court erred and the error was prejudicial. We agree and thus reverse.

First Holding:

If a section 1172.6 petition contains all the required information, the sentencing court must appoint counsel to represent the petitioner if requested.

Authority:

PEN 1172.6(b)(1)(A), (3)

People v. Lewis (2021) 11 Cal.5th 952, 962-963

Second Holding:

Failing to appoint counsel for a petitioner at the prima facie review stage is state law error only, tested for prejudice under Watson. Error in failing to appoint counsel is harmless only if we can determine that the record of conviction contain[s] facts refuting the allegations made in the petition.

Authority:

People v. Watson (1956) 46 Cal.2d 818

People v. Mejorado (2022) 73 Cal.App.5th 562, 572, 574 [concluding failure to appoint counsel was not harmless and remanding with instructions to appoint counsel for defendant, issue an order to show cause and hold an evidentiary hearing]

Third Holding:

A trial court must not engage in factfinding involving the weighing of evidence or the exercise of discretion during the prima facie stage.

Authority:

People v. Lewis (2021) 11 Cal.5th 952, 972

People v. Duchine (2021) 60 Cal.App.5th 798, 815 [remand was necessary where a trial court made major participant and reckless indifference findings at the prima facie stage which entailed weighing evidence, drawing inferences, and assessing credibility]

People v. Curiel (2023) 15 Cal.5th 433, 463 [to aid and abet a murder, the aider and abettor must aid in the commission of the fatal act]

Amelioration, Sentencing, Standard of review

Case: 000098

Posted on by Gary McCurdy

Error and/or relief

The petitioner argues the trial court erred by failing to hold a hearing on his PC 1172.6 petition as to whether he has stated a prima facie case for relief or even appoint counsel for him. The People concede error. We agree, and reverse.

First Holding:

Upon receiving a petition with sufficient information or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.

Authority:

PEN 1172.6

Second Holding:

Following appointment of counsel and a briefing period, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. Following this initial hearing, the trial court shall issue an order to show cause, if a prima facie case for relief was made, or shall provide a statement fully setting forth its reasons for declining to issue an order to show cause. If an order to show cause issues, then the court shall hold a hearing to determine whether to vacate the conviction and to recall the sentence and resentence the petitioner on any remaining counts. All of these steps are mandatory, if the conditions are met, and the court has no discretion to refuse to follow these statutory directives.

Authority:

PEN 1172.6

Third Holding:

We review de novo a trial court’s analysis of whether a petitioner under section 1172.6 has made a prima facie showing.

Authority:

People v. Harden (2022) 81 Cal.App.5th 45, 52

Fourth Holding:

Since the decision to appoint counsel is not discretionary, we review that without deference as well.

Authority:

Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, 987–988

Amelioration, Sentencing

Case 000089

Posted on by Gary McCurdy

Error and/or relief

Error and/or relief:
On the defendant’s claim that it was error to deny his petition for recall of his sentence under Penal Code section 1172.6 because the trial court found that he was ineligible as matter of law in considering the preliminary hearing transcript, the cause is remanded with directions to consider an amended petition should defendant seek to file one within 30 days of the issuance of the remittitur. The trial court’s order is otherwise affirmed.

First Holding:

At the prima facie stage, a court must accept as true a petitioner’s allegation that he or she could not currently be convicted of a homicide offense because of changes to sections 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record.

Authority:

People v. Curiel (2023) 15 Cal.5th 433, 463

Second Holding:

After determining the facial validity of a resentencing petition and before ordering an evidentiary hearing, a trial court may properly, at the prima facie stage, reference the record of conviction, which includes the preliminary hearing transcript, to refute conclusory allegations in furtherance of its statutorily required screening function at that juncture of a section 1172.6 proceeding.

Authority:

People v.Lewis (2021) 11 Cal.5th 952, 971

People v. Patton (2025) 17 Cal.5th 549, 569

Third Holding:

Although the defendant has not shown error in connection with the court’s denial of his section 1172.6 petition, following the Supreme Court’s directive to the Court of Appeal in Patton, we will remand the matter to the trial court with directions to consider an amended petition should defendant seek to file one within 30 days of the issuance of the remittitur.

Authority:

People v. Patton (2025) 17 Cal.5th 549, 569 569–570

People v. Glass (2025) 110 Cal.App.5th 922, 930–931