New First Appellate District Court of Appeal Opinion Discusses the Procedure for Review on a Petition for Resentencing Under Penal Code section 1170.95

On September 30, 2018, Governor Jerry Brown approved Senate Bill No. 1437 which made important amendments to Penal Code sections 188 and 189.^[1] Senate Bill No. 1437 also added Penal Code section 1170.95 to the Penal Code and permits a person convicted of felony murder or murder under a natural and probable consequence theory to file a petition with the court to have the murder conviction vacated and to be resentenced under certain conditions. Newly amended Penal Code sections 188 and 189 and the post-conviction petition procedure outlined in Penal Code section 1170.95 took effect on January 1, 2019.[2]

Since taking effect in 2019, superior courts have been tasked with reviewing and resolving resentencing petitions under Penal Code section 1170.95. Issues such as the constitutionality of Senate Bill No. 1437 have been raised and reviewed by the court of appeals. (See People v. Superior Court (Gooden) (2019) 42 Cal. App. 5th 270 and People v. Lamoureux (2019) 42 Cal. App. 5th 241). The court of appeal has also had to determine at what point in the resentencing proceedings the petitioner is entitled to appointed counsel. (See People v. Verdugo (2020) 44 Cal. App. 5th 320).

In People v. Walter Lafonze Edwards, 2020 S.O.S. 2187, the First Appellate District Court of Appeal recently issued an opinion providing further guidance on the procedure by which a superior court must review a petition brought under Section 1170.95.

In Edwards, the defendant fired an assault weapon into an apartment, killing the victim. The defendant was later found guilty by way of a jury trial in 2011 of second-degree murder and shooting into an inhabited dwelling, and the jury found true related enhancements. The defendant was sentenced to 49 years and eight months to life in state prison. Following the enactment of Section 1170.95, the defendant filed a petition for resentencing using a downloadable form petition prepared by a cosponsor of the Senate Bill No. 1437 legislation. Along with this form petition, the defendant submitted the jury instructions on the murder count and excerpts of the reporter’s transcript of the prosecutor’s closing statements relating to the theory of murder.

The superior court denied the petition without the defendant present, without counsel on behalf of the defendant, and without the People. The court later issued a 10-page order explaining that the petition had been denied because the defendant had failed to make a prima facie showing that he fell within the provisions of Section 1170.95 since he “was not convicted of second degree felony murder or murder under the natural and probable consequences theory applied to aiders and abettors.” The court further determined that he would not be entitled to relief since he had been convicted on a valid theory of murder that had survived the changes made to Section 188 and 189, as amended under Senate Bill No. 1437. The defendant appealed.

According to the court of appeal, Section 1170.95, subdivision (c) provides the process by which the court is to decide a petition brought under this Section. According to this Subdivision, the court must review the petition and determine if the petitioner had made a prima facie showing that he or she falls within the provisions of the Section. Once served with the petition, the prosecutor has 60 days to file and serve a response and, upon receipt, the petitioner then has 30 days to file a reply. If the petitioner has made a prima facie showing of entitlement to relief, then the court shall issue an order to show cause and a hearing is held.

In Edwards, the defendant argued the superior court erred in summarily denying his petition and that the court was limited to reviewing only the facts pled in the petition and could not rely on the record of conviction. The court of appeal disagreed and found that the court is authorized to act as a gatekeeper for relief and is tasked with “screening out” clearly ineligible petitioners, which can be assisted by reviewing relevant documents in the record of conviction. The court of appeal further determined that the superior court’s denial of the petition was not error because the defendant could not meet the statutory prerequisites for even filing a Section 1170.95 petition since “he was not charged or convicted of second degree felony murder or murder under the natural and probable consequences doctrine.” Thus, the court in Edwards determined that the superior court acted well within its authority to deny relief.        

If you need assistance with filing a Penal Code section 1170.95 Petition or you have any questions, please our office at 626-577-7700.

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