Filed 9/15/20 P. v. Snyder CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B299921
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA012694)
v.
MICHAEL ANTHONY SNYDER,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, George G. Lomeli, Judge. Reversed and
remanded with directions.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Amanda V. Lopez and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________________
A jury found Michael Anthony Snyder guilty of the murder
of James Pickett during a residential burglary, which occurred
after Snyder and another individual forcibly entered Pickett’s
home on January 19, 1990. Snyder was sentenced to an
indeterminate state prison term of 15 years to life for the murder,
plus one year for a firearm enhancement. The sentence for the
burglary conviction was stayed pursuant to Penal Code
section 654.1 This court affirmed Snyder’s convictions on direct
appeal. (People v. Snyder (Apr. 7, 1993, B056621) [nonpub.
opn.].)
On January 4, 2019 Snyder petitioned to vacate his murder
conviction and for resentencing under section 1170.95. The
superior court summarily denied the petition without first
appointing counsel, ruling that, while Snyder may have met
section 1170.95’s requirements for relief, that section is
unconstitutional.
We reverse the postjudgment order and remand for the
superior court to appoint counsel for Snyder and to consider his
petition in accordance with the procedures described in our
opinion in People v. Verdugo (2020) 44 Cal.App.5th 320, review
granted March 18, 2020, S260493 (Verdugo).2
1 Statutory references are to this code unless otherwise
stated.
2 The Supreme Court in Verdugo, supra, S260493 ordered
briefing deferred pending its disposition of People v. Lewis (2020)
43 Cal.App.5th 1128, review granted March 18, 2020, S260598.
The Court limited briefing and argument in People v. Lewis to the
following issues: “(1) May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Snyder’s Conviction for Murder
a. The shooting
As described in our 1993 opinion,3 the evidence at trial
established that, on the afternoon of January 19, 1990, Pickett
arrived home and told his foster sister he had just had an
argument with Snyder, who lived down the street and with whom
Pickett had been friends when they were children.
Approximately 30 minutes later someone knocked on the door of
Pickett’s house. His foster sister asked who was there but got no
response. Looking out the window she saw Snyder standing on
the porch and another man standing on the sidewalk at the
corner of the property. She did not open the door.
Snyder walked to the house’s side door and asked through
the security screen whether Pickett was home. Snyder appeared
angry. While Snyder was at the side door, the other man kicked
down the front door and knocked Pickett’s foster sister to the
floor. The second man then let Snyder into the house through the
side door.
Pickett and Snyder began fighting. While they struggled,
Snyder’s companion fired a revolver one to three times at Pickett,
hitting him in the chest and/or abdomen. At that point a car
section 1170.95? (2) When does the right to appointed counsel
arise under Penal Code section 1170.95, subdivision (c)?”
3 Our 1993 opinion affirming Snyder’s convictions is not in
the record. It is clear from the superior court’s order it consulted
our opinion, but counsel notes the opinion is not available
electronically. We augment the record on our own motion to
include our 1993 opinion. (Cal. Rules of Court, rule 8.340(c).)
3
drove up in front of the house, and the driver honked the horn
multiple times. Snyder and the gunman ran out of the house and
entered the car, which drove away at a high speed. Neither
Snyder nor the gunman spoke during the incident. Pickett died.
b. The trial: instructions and verdict
Snyder was charged in an information with one count of
murder (§ 187, subd. (a)) and one count of residential burglary
(§ 459). The information specially alleged as to both counts that
a principal was armed with a firearm during the commission of
the offense. (§ 12022, subd. (a)(1).)
At trial the prosecution relied on a conspiracy theory of
liability and, in the alternative, an aider and abettor theory of
liability. The exact language of the jury instruction given
regarding conspiracy liability is not in the record, but in our
1993 opinion we recounted, “once a defendant is found to be a
member of a conspiracy, he is not only liable for the crimes
actually contemplated, but is also liable for all the natural and
probable or reasonably foreseeable consequences of the originally
contemplated objective of the conspiracy. (CALJIC No. 6.11.)”4
(People v. Snyder, supra, B056621, at p. 10.) The alleged
alternative objects of the conspiracy in this case were “(1) assault
with a deadly weapon; (2) assault with force likely to produce
4 In 1990 CALJIC No. 6.11 stated, in part, “A member of a
conspiracy is not only guilty of the particular crime that to [his]
[her] knowledge [his] [her] confederates are contemplating
committing, but is also liable for the natural and probable
consequences of any act of a co-conspirator to further the object of
the conspiracy, even though such an act was not intended as a
part of the original plan and even though [he] [she] was not
present at the time of the commission of such act.”
4
great bodily injury; (3) battery with serious bodily injury; or,
(4) murder.” (Id. at p. 6.)
As to aider and abettor liability, using CALJIC No. 3.02,5
the court instructed the jury criminal liability of an aider and
abettor extends to “‘the reasonably foreseeable consequences of
any criminal act he knowingly and intentionally aided and
abetted.’” (People v. Snyder, supra, B056621, at pp. 11-12.)
The jury found Snyder guilty of second degree murder and
residential burglary and found the firearm allegations true.
These convictions were affirmed on appeal.
2. Senate Bill No. 1437 and Snyder’s Petition for
Resentencing
a. Senate Bill No. 1437 and the section 1170.95 petition
procedure
Senate Bill No. 1437 (2017- 2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019, amended
the felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder through
amendments to sections 188 and 189. New section 188,
subdivision (a)(3), provides, “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
5 In 1990 CALJIC No. 3.02 stated, in part, “One who aids
and abets is not only guilty of the particular crime that to [his]
[her] knowledge [his] [her] confederates are contemplating, but
[he] [she] is also liable for the natural and probable consequences
of any criminal act that [he] [she] knowingly and intentionally
aided and abetted.”
5
imputed to a person based solely on his or her participation in a
crime.”
New section 189, subdivision (e), in turn, provides with
respect to a participant in the perpetration or attempted
perpetration of a felony listed in section 189, subdivision (a), in
which a death occurs—that is, as to those crimes that provide the
basis for the charge of first degree felony murder—that an
individual 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 subdivision (d) of
Section 190.2.”
Senate Bill 1437 also permits, through new section 1170.95,
an individual convicted of felony murder or murder under a
natural and probable consequences theory to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime. The petition must include: “(A) A declaration by
the petitioner that he or she is eligible for relief under this
section, based on all the requirements of subdivision (a). [¶]
(B) The superior court case number and year of the petitioner’s
conviction. [¶] (C) Whether the petitioner requests the
appointment of counsel.” (§ 1170.95, subd. (b)(1); see Verdugo,
supra, 44 Cal.App.5th at pp. 326-327.)
6
If any of this required information “is missing and cannot
be readily ascertained by the court, ‘the court may deny the
petition without prejudice to the filing of another petition and
advise the petitioner that the matter cannot be considered
without the missing information.’ (§ 1170.95, subd. (b)(2).)”
(Verdugo, supra, 44 Cal.App.5th at p. 327.) If, however, “the
petition contains all required information, section 1170.95,
subdivision (c), prescribes a two-step process for the court to
determine if an order to show cause should issue: ‘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. If the petitioner has requested counsel,
the court shall appoint counsel to represent the petitioner. 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.’” (Ibid.)
Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra,
44 Cal.App.5th at p. 327.) At the hearing the prosecution has the
burden of proving beyond a reasonable doubt that the petitioner
is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The
prosecutor and petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.
(See People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review
granted Mar. 18, 2020, S260598.)
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b. Snyder’s section 1170.95 petition
In January 2019 Snyder petitioned for resentencing under
newly enacted section 1170.95. In his petition on the Re:Store
Justice form (see Verdugo, supra, 44 Cal.App.5th at p. 324 &
fn. 2), Snyder checked boxes declaring an information had been
filed against him allowing the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine; at trial he had been convicted of
first or second degree murder pursuant to the felony-murder rule
or the natural and probable consequences doctrine; and he could
not now be convicted of first or second degree murder because of
the amendments to sections 188 and 189. He also checked the
box requesting appointment of counsel for the resentencing
process.
3. The Superior Court’s Ruling Denying the Petition
The superior court summarily denied Snyder’s petition.
After briefly summarizing the statement of facts from our opinion
on appeal, the court explained, “The petitioner was ultimately
tried under a conspiracy theory as well as under an aiding and
abetting theory of liability. Specifically, aiding and abetting
and/or conspiracy to commit an assault upon the victim which
ultimately resulting in his death. Although the petitioner was
not tried under a felony murder rule, it appears . . . that a
derivative of the natural and probable consequences theory was
in part relied upon by the prosecution. Seemingly, malice was
imputed upon the petitioner.” Based on this evidence the
superior court concluded, “[i]t appears that the petitioner may be
entitled to relief pursuant to Penal Code 1170/SB 1437 as he was
neither the actual killer nor one who with the intent to kill aided
8
in the killing nor one who was a major participant who acted
with reckless indifference.”
Nonetheless, the superior court denied the petition, ruling
Senate Bill 1437 and section 1170.95 are unconstitutional
because Senate Bill 1437 impermissibly amended two California
initiatives, Propositions 7 (the Death Penalty Act, approved by
the voters in November 1978) and 115 (the Crime Victims Justice
Reform Act, approved by the voters in June 1990); violated the
California Constitution (as amended by Proposition 9 in 2008, the
Victims’ Bill of Rights Act of 2008, commonly known as Marsy’s
Law) insofar as it purported to vacate final judgments in criminal
cases; and violated the separation of powers doctrine by
infringing on core judicial functions.
DISCUSSION
1. Section 1170.95 Is Constitutional
Snyder contends, and the Attorney General agrees, the
superior court erred in holding that section 1170.95, as enacted
through Senate Bill 1437, was unconstitutional. In a
comprehensive analysis of Propositions 7 and 115 and Senate
Bill 1437, as well as the separation of powers doctrine and
victims’ rights to finality of judgments as protected in Marsy’s
Law, our colleagues in Division Two of the Fourth District in
People v. Johns (2020) 50 Cal.App.5th 46, 63-69 rejected the
reasoning employed by the superior court in this case and held
Senate Bill 1437 is constitutional.
All other courts of appeal that have considered any of these
grounds for a constitutional attack on Senate Bill 1437 have
likewise rejected them. (See, e.g., People v. Prado (2020)
49 Cal.App.5th 489; People v. Smith (2020) 49 Cal.App.5th 85,
9
review granted July 22, 20202, S262835; People v. Bucio (2020)
48 Cal.App.5th 300; People v. Solis (2020) 46 Cal.App.5th 762;
People v. Cruz (2020) 46 Cal.App.5th 740; People v. Lamoureux
(2019) 42 Cal.App.5th 241.) We find the reasoning in these cases
compelling and adopt it as our own.
2. Remand Is Required To Determine Whether Snyder Has
Made a Prima Facie Showing He Is Entitled to Relief
As discussed, section 188, subdivision (a)(3), precludes a
conviction for murder of anyone who did not act with “malice
aforethought” except in cases of felony murder, as specified in
section 189, subdivision (e), and specifically prohibits imputing
malice based solely on participation in a crime. Section 189,
subdivision (e)(3), however, provides an aider and abettor of one
of the felonies listed in section 189, subdivision (a), who is not the
actual killer, may be convicted under the felony-murder rule
without proof of an intent to kill (that is, without proof of
“malice”) if that person was “a major participant in the
underlying felony and acted with reckless indifference to human
life.” This single exception to the prohibition of imputing malice
applies only to cases tried under the felony-murder rule, not the
natural and probable consequences doctrine.
Here, there is no dispute Snyder was not the shooter. The
jury was instructed Snyder could be found guilty of Pickett’s
murder if he was a member of a conspiracy and the murder was
the natural and probable or reasonably foreseeable consequence
of the originally contemplated objective of the conspiracy. (People
v. Snyder, supra, B056621, at p. 10.) Alternatively, the jury was
instructed Snyder could be found guilty of murder if he aided and
abetted a criminal act for which murder was a reasonably
foreseeable consequence. (Id. at pp. 11-12.)
10
As we explained in Verdugo, after receiving a facially
sufficient petition but before appointing counsel for the
petitioner, the superior court may examine the readily available
portions of the record of conviction, including any appellate
opinion affirming the conviction, to determine whether the
petitioner has made a prima facie showing that he or she could
not be convicted of first or second degree murder following the
changes made to sections 188 and 189 and thus falls within the
provisions of section 1170.95. (Verdugo, supra, 44 Cal.App.5th at
pp. 329-330, 332.) We cautioned, however, because at this stage
the court is only evaluating whether there is a prima facie
showing the petition falls within the provisions of the statute, “if
the petitioner’s ineligibility for resentencing under
section 1170.95 is not established as a matter of law by the record
of conviction, the court must direct the prosecutor to file a
response to the petition, permit the petitioner (through appointed
counsel, if requested) to file a reply and then determine, with the
benefit of the parties’ briefing and analysis, whether the
petitioner has made a prima facie showing he or she is entitled to
relief.” (Id. at p. 330.)
Based on his petition and our opinion affirming the
conviction, Snyder has made a prima facie showing he falls
within the provisions of section 1170.95. Even if he was a major
participant in an aggravated assault and acted with reckless
indifference to human life, a conviction for murder under the
natural and probable consequences doctrine is no longer viable.
Accordingly, as the Attorney General concedes, Snyder is entitled
to appointment of counsel and to a determination, after briefing
by both sides, whether he has made a prima facie showing that
11
he is entitled to relief, as provided in section 1170.95,
subdivision (c).6
DISPOSITION
The postjudgment order denying Snyder’s petition for
resentencing is reversed. The cause is remanded with directions
to appoint counsel for Snyder and to conduct further proceedings
pursuant to section 1170.95 with respect to Snyder’s conviction
for second degree murder.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
6 Because we find the superior court erred in summarily
denying Snyder’s petition, we need not address Snyder’s
argument the superior court violated his state and federal
constitutional rights.
12