In January 2019, Senate Bill 1437 became law. This bill ended the practice of sentencing participants in a felony resulting in a death as if they were the actual killer. Now, co-defendants who were NOT the actual killers, who did not aid and abet in the killing, or who did not act with reckless indifference to human life will now be sentenced for what they did. The new law is retroactive. Senate Bill 775, effective January 2022, expanded this resentencing to include attempted murder and manslaughter as well as allow relief for prosecutions under any “other theory under which malice is imputed.”

What does this mean for people currently incarcerated under the felony murder rule or other applicable imputed malice theories? If you were not the actual killer or attempted killer, not a major participant, did not act with reckless indifference to human life, and the victim is not a member of law enforcement, you can be resentenced under California law based on what you did. This means that a person involved in a drug deal that results in death can now be resentenced on the drug charges.

The point of SB 1437 is more proportional and equitable sentencing in California. To that end, people convicted under the old law may file a petition under Cal. Pen. Code 1170.95 for resentencing. This applies whether you took a plea or were convicted after a trial. This applies to convictions for murder, attempted murder, and manslaughter.

THE PROCESS
Once the petition for resentencing is accepted by the court, the district attorney will respond, and a hearing or hearings will be held, in order to determine eligibility.

Initially, district attorney’s offices were objecting to the resentencing petitions on the grounds that the passage of SB 1437 was unconstitutional. This issue has been resolved by the California Supreme Court in a number of cases.

THE PRIMA FACIE STAGE
Prima facie means “at first sight.” Essentially, as long as you declare the qualifying criteria, the petition should advance to a hearing. At this stage, the judge is not supposed to engage in fact finding. The California Supreme Court clarified in People v. Lewis (2021) that if the declarations in the petition satisfy the criterion, counsel should be appointed (if requested) and a hearing be held on the prima facie showing.

From the Lewis ruling:
“While the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings, ‘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.'” (People v. Lewis (2021) 11 Cal.5th 952, 971.)

The petition contains a declaration from the convicted person that swears under penalty of perjury that the following is true:

• The prosecution proceeded under a theory of felony murder or murder under natural and probable consequences (NPC) doctrine.
• A sentence that explains the nature of the conviction (trial or plea) and prosecution theory (felony murder rule or NPC).
• I could not now be convicted of 1st or 2nd degree murder because of changes made to Cal. Pen. Code § § 188 and 189, effective January 1, 2019.
• Request the appointment of counsel, if applicable, or declare who is your private counsel.
• If the conviction is for first degree felony murder prior to the changes in Cal. Pen. Code § 189, you include all applicable statements from the following list:
  1. I was not the actual killer.
  2. I did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree.
  3. I was not a major participant in the felony or I did not act with reckless indifference to human life during hte course of the crime or felony.
  4. The victim of the murder was not a peace officer in the performance of his or her duties, or I was not aware the victim was a peace officer in the performance of his or her duties and the circumstances were such the I should not reasonably have been aware that the victim was a peace officer in the performance of his or duties.
• For 2nd degree murder under NPC or felony murder, you would include this statement: I was convicted of 2nd degree murder under the NPC doctrine or under the 2nd degree felony murder doctrine and I could not now be convicted of murder because of changes to Cal. Pen. Code § 188, effective January 1, 2019.
• Did the court find that you were not a major participant and / or did not act with reckless indifference to human life? If the answer is yes, you would include this statement: There has been a prior determination by a court or jury that I was not a major participant and / or did not act with reckless indifference to human life under Cal. Pen. Code § 190.2(d). Therefore, I am entitled to be resentenced pursuant to § 1170.95(d)(2).

Once the petition is served, the prosecution has 60 days to file and serve a response. The petitioner may file and serve a response within 30 days.

THE ORDER TO SHOW CAUSE
“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 petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.” &emdash; Cal. Pen. Code, § 1172.6, subd. (c)

Most petitioner’s are entitled to a hearing on the prima facie issue. Once the judge has determined that a prima facie showing is made, the next step is for the judge to issue the order to show cause. This may occur after a hearing at which the prima facie merits are debated and briefings are filed.

Once the order to show cause issues, the evidentiary hearing must be held in 60 days (unless the petitioner enters into a time waiver).

THE EVIDENTIARY HEARING
Cal. Pen. Code § 1172.6(d)(3) is the crowning jewel of this new relief process. In felony murder cases, the original prosecution only needed to prove that the defendant was involved in the underlying felony. Oftentimes, these cases do not even attempt to identify the actual killer. Now, the burden of proof is on the district attorney to prove beyond reasonable doubt that the petitioner is the actual killer or any of the other imputed malice factors. Whereas, the original proceedings only needed to prove participation in the underlying felony.

This evidentiary hearing is subject to the rules of evidence governing a trial. While both parties rely heavily on the trial transcripts, they may also introduce evidence. For instance, in a recent 1437 / 775 proceedings, I have gotten funding from the court for experts on a wide variety of issues from the trial, like private investigators, ballistic expert, witness identification expert, black men’s mental health expert (Dr. Wizdom Powell, PhD, I cannot recommend her highly enough), psychiatrist to address youth factors, family members, and other witnesses. This is the time to bring the defense that your client may not have originally gotten. I have a number of cases where the defense did not put on evidence because there was so much reasonable doubt or the evidence was so flimsy, yet the jury found the person guilty.

The Cal. Pen. Code § 1172.6(d)(3) hearing gives the petitioner an amazing opportunity to present a clearer picture of what was happening at the time of the offense (i.e., drug addiction, mental health issues, youth factors). Additionally, many strides have been made in forensics (i.e., DNA) as well as strides in the junk science that convicted many in the past (i.e., hair analysis and bite mark analysis). All of this can be reevaluated and presented by an expert.

OTHER BENEFITS OF RESENTENCING
Once, your case is on for resentencing, you are entitled to a FULL resentencing. That means, new sentencing reforms that are NOT retroactive are applicable. Even if the court finds beyond a reasonable doubt that petitioner was a major participant and / or acted with reckless indifference to human life, the court can resentence the petitioner. For instance, new laws give judges more discretion when it comes to gun enhancements (from 10 years to 1 year).

Also, the Racial Justice Act can be used to show that a petitioner of color received a harsher sentence as a result of implicit bias. This could take a life without the possibility of parole (LWOP) sentence down to 20-to-25 to life.

A petitioner who was under 26 at the time of the original conviction can also assert factors in mitigation relating to youth. There is good case law that helps one argue that the petitioner’s youth should be considered when considering reckless indifference to human life as the youthful brain perceives danger and risk differently. Further, youth offenders may request a Franklin Hearing. The Franklin Hearing is a supplemental hearing. It does not result in resentencing, but it asserts youth factors in mitigation that can be used at a youth offender parole hearing in the future.

If you have a conviction that you think qualifies you for resentencing under Cal. Pen. Code 1170.95, contact Wentworth Law Firm for a free consultation.

The information provided herein does not constitute legal advice, nor is it a substitute for your own legal research. If you have questions, Wentworth Law Firm offers free consultations.