California Court of Appeal Explains Procedural Requirements for Vacating Felony-Murder Conviction Via Section 1170.95 Petition
The Court of Appeal of California, Sixth Appellate District has explained the procedural requirements for adjudication of petitions filed pursuant to Penal Code § 1170.95.
In the middle of the night of June 14, 1991, John Lewis Drayton and three other men entered the Wards’ home with the intent of robbing a safe. Drayton and two of the other men were armed. Mr. and Mrs. Ward were awakened in their bedroom. One of the men then brought the Wards’ teenage daughter into the room, placed a firearm in her vagina, and threatened to rape her if Mr. Ward did not reveal the location of the safe. Drayton told the man not to rape the girl. Mr. Ward and two of the men went into a closet where the safe was located. Drayton held Mrs. Ward to the floor with his foot in the middle of her back, and he struck Mrs. Ward with his gun, grazing her head but not injuring her.
A struggle ensued inside the closet, and one of the other men shot and killed Mr. Ward. Drayton told Mrs. Ward to wait 15 minutes before doing anything, and then all four men left the home. Neither Drayton nor any of the other men did anything to seek help for Mr. Ward.
Drayton turned himself into the police the next day. He and the other three men were ultimately charged with nine felonies, including murder. Drayton pleaded guilty to murder in violation of Penal Code § 187 and admitted an enhancement for personal use of a firearm pursuant to Penal Code §§ 1203.06(a)(1) and 12022.5. Drayton admitted that he “entered [the] Ward[s’] [r]esidence with intent to commit theft and a human being was killed,” and that he “had a 32 cal[iber] pistol in his possession.”
The probation report filed prior to sentencing revealed that Drayton’s only prior conviction was for a misdemeanor, and he had no reported history of violence. Drayton told a clinical psychologist prior to sentencing that he did not participate in the planning of the robbery, and when he tried to stop the other men from doing it, one of them pointed a gun at him and told him to “shut up.” In March 1992, Drayton was sentenced to 29 years to life imprisonment.
In January 2019, Drayton filed a pro se petition for resentencing pursuant to Penal Code § 1170.95. He submitted a declaration where he checked preprinted boxes indicating he was eligible for relief, one of which asserted that he “was not a major participant in the felony or [he] did not act with reckless indifference to human life during the course of the crime.”
The trial court appointed counsel for Drayton, and in March 2019, the Monterey County District Attorney’s Office (“Prosecution”) filed an opposition. The Prosecution argued that Drayton was a major participant in the underlying felonies of robbery and murder because he went to the Ward home, participated in the robbery, and pointed a gun at Mrs. Ward. The Prosecution further argued that Drayton acted with reckless indifference to human life because he brought his gun to the crime scene and did not assist Mr. Ward after he had been shot.
Drayton, by counsel, filed a response and requested the trial court issue an order to show cause and conduct a hearing “where the evidence will show whether [Drayton] acted with reckless indifference to human life.” Drayton argued that he had made a prima facie showing that he did not act with reckless indifference to human life because he never fired his gun; he had tried to stop the robbery; he prevented Mrs. Ward from being killed and prevented the rape of the daughter; he had the gun for personal protection due to an unrelated incident that had occurred earlier in the day; and that on the evening of the crime he met the man who killed Mr. Ward and had no prior knowledge of the man’s propensity for violence.
The trial court denied the petition without taking any evidence. The trial court determined Drayton’s statements were not credible and found that “Petitioner has failed to state a prima facie showing for release.” Drayton appealed the summary denial of his petition.
The California Court of Appeal observed that Senate Bill No. 1437 (“SB 1437”) added subdivision (e) to Penal Code § 189 that limits liability for felony murder only to cases where: (1) the defendant was the actual killer; (2) the defendant was not the actual killer, but, with intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or (3) the defendant was a major participant in the underlying felony and acted with reckless indifference to human life, as described in Penal Code § 190.2. People v. Flores, 44 Cal.App.5th 985 (2020).
SB 1437 created a petition process, codified in § 1170.95, for defendants to seek relief if they believe they were convicted of felony murder for an act that no longer qualifies as murder as redefined by SB 1437. To be eligible for relief, the defendant (1) must have been charged with felony murder or murder under the natural and probable consequences doctrine; (2) convicted of first or second degree murder; but (3) cannot any longer be convicted of first or second degree murder due to changes to Penal Code §§ 188 or 189. Penal Code § 1170.95(a). The petitioner must include a declaration that he or she is eligible for relief, provide the case number and year of conviction, and indicate whether appointed counsel is requested. § 1170.95(b)(1). If any of this information is missing, the trial court may deny the petition without prejudice. § 1170.95(b)(2).
“The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section.... The prosecutor shall file and serve a response ... and the petitioner may file and serve a reply.... If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” § 1170.95(c). Once the court issues an order to show cause and schedules a hearing to determine whether the petitioner is entitled to relief, “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges. The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.” § 1170.95(d)(3).
The trial court first reviews the petition under § 1170.95(b)(2) to determine if the petitioner is eligible for relief, i.e., that the petition is facially sufficient in meeting the criteria of §§ 1170.95(a) and (b)(1). People v. Verdugo, 44 Cal.App.5th 320 (2020). If the petitioner has made a prima facie showing that he or she is eligible for relief, the trial court then must determine if the petitioner has made a prima facie showing that he or she is entitled to relief. Id.
But since the statute is silent on the procedure to be employed by the trial court in making this determination, the Court was persuaded by the Second District’s reasoning in Verdugo that looked to habeas corpus procedures for guidance due to the similarities. That is, habeas corpus procedures also allow the Attorney General to file a response in opposition, and then the petitioner is permitted a reply similar to the procedures of § 1170.95(c). And both petitions are collateral attacks seeking relief from an unlawful judgment. In a habeas corpus proceeding, the court initially takes the petitioner’s allegations as true, and if the allegations make a prima facie showing that the petitioner is entitled to relief, the court must issue an order to show cause. People v. Duvall, 9 Cal.4th 464 (1995). If no prima facie showing is made, the petition must be summarily denied. Id. The court must not dismiss the petitioner’s factual allegations on credibility grounds without conducting a hearing. In re Serrano, 10 Cal.4th 447 (1995).
Using the habeas corpus procedures as a guide, the Court concluded that a trial court’s review of a petition under § 1170.95(c) to determine if the petitioner has made a prima facie showing that he or she is entitled to relief requires the trial court to assume that all facts alleged by the petitioner are true, and the trial court is to refrain from making credibility determinations prior to a hearing. If the prima facie showing is made, the trial court is required to issue an order to show cause. At any subsequent hearing on that order, the prosecution must prove beyond a reasonable doubt that the petitioner is not entitled to relief, and it is at this hearing that the trial court may make credibility determinations, the Court explained
In the instant case, Drayton made a prima facie showing that he is entitled to relief. The trial court erred in summarily denying his petition without issuing an order to show cause and conducting the requisite hearing.
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