People v. Swanson

Filed 11/19/20
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B299638

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA015162)
v.

DERRICK DANTE SWANSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Gary J. Ferrari, Judge. Affirmed.
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, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Peggy Z. Huang, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
 Derrick Swanson was convicted of first degree murder
under the provocative act doctrine. He filed a petition in the
superior court under Penal Code section 1170.95, which permits a
defendant convicted of murder under the felony-murder rule or
natural and probable consequences doctrine to be resentenced.
The court found he was ineligible for relief as a matter of law
because he was convicted neither under the felony murder rule
nor under the natural and probable consequences doctrine. The
court therefore denied the petition without appointing counsel or
holding an evidentiary hearing.
Swanson contends Penal Code section 1170.95 should apply
to his murder conviction, and he should have been appointed
counsel to assist with his petition. We disagree with both
contentions, and thus affirm.
BACKGROUND
We take the facts from our opinion affirming Swanson’s
conviction. “On March 8, 1993, at approximately 8 p.m.,
appellant and Anthony Chapple robbed four individuals at
gunpoint at a Long [B]each gas station. One of the victims,
Ruben Garcia, worked at the gas station. The other victims were
Garcia’s wife Rosa, his brother, and a female customer.
“Appellant and Chapple forced the victims into a storage
room where they took Rosa’s jewelry and purse and several
cartons of cigarettes. Then appellant, who had been told that
Rosa was pregnant, grabbed her by the hair and dragged her into
the front office. He called her a “fucking bitch” and told her he
would kill her if she did not open the safe. After Rosa stated that
she did not have the keys to the safe, appellant shoved her
toward the ground. When Garcia tried to stop appellant, Chapple
threatened to shoot Garcia’s brother. Meanwhile, the two

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assailants emptied the cash register and took all of the money
that Garcia had in his wallet.
“Just before appellant and Chapple left, appellant pointed
his gun at Garcia and Rosa and fired one shot, causing Rosa to
scream. Garcia grabbed his gun from the desk drawer, loaded it,
and gave chase. He testified at trial that he believed Rosa had
been shot and was afraid that appellant and Chapple would
return to the gas station and kill the rest of them. As appellant
and Chapple ran toward an alley, Garcia fired two shots in their
direction. He then saw Chapple stumble, but thereafter lost sight
of both men. However, someone in the alley fired a shot at him,
and he fired back once to frighten the shooter.
“Chapple died as a result of two bullet wounds inflicted by
Garcia.
“In his defense, appellant claimed that Garcia
unreasonably responded to the situation by shooting at him and
Chapple. In support of his claim, appellant offered Garcia’s
initial statement to the defense investigator that he fired at the
robbers because he wanted to retrieve the stolen money.” (People
v. Swanson (July 31, 1995, B085170) [nonpub. opn.].)
Swanson was convicted of first degree murder (Pen. Code,
§ 187, subd. (a)),1 assault with a firearm (§ 245, subd. (a)(2)), and
four counts of second degree robbery (§ 211), and the jury found
that he personally used a firearm to commit the crimes
(§ 12022.5, subd. (a)). He was sentenced to state prison for 32
years to life.
Swanson claimed on appeal that insufficient evidence
sustained the murder conviction under the provocative act

1 All statutory references will be to the Penal Code.

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doctrine, which holds that when an accomplice is killed by a
victim during the commission of a robbery, the principal may be
convicted of murder based on direct liability arising from the
principal’s own acts. (People v. Superior Court (Bennett) (1990)
223 Cal.App.3d 1166, 1172.) In affirming the conviction, we
noted that Swanson not only assaulted Garcia’s pregnant wife,
but also gratuitously shot at the couple, conduct that was
unnecessary to the underlying robbery. Given Swanson’s
apparent willingness to engage in needless acts of violence, the
jury could conclude that Garcia reasonably believed the
assailants might return to kill the victims even though they
appeared to have fled, and killed Chapple in a “reasonable
response to [Swanson’s] provocative conduct.” (People v.
Swanson, supra, B085170, at p. 4.)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (SB 1437), which limited the felony
murder rule and “amend[ed] . . . 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.” (Stats. 2018, ch. 1015, § 1(f).)
SB 1437 added section 1170.95, which establishes a
procedure by which an individual convicted of murder under the
natural and probable consequences doctrine or felony murder
rule can seek vacation of that conviction and resentencing.
(Stats. 2018, ch. 1015, § 4, pp. 6675-6677; see also People v. Lewis
(2020) 43 Cal.App.5th 1128, 1134, review granted Mar. 18, 2020,
S260598.) The provisions of SB 1437 became effective on
January 1, 2019.

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 On May 13, 2019, Swanson filed a petition for writ of
habeas corpus alleging he was eligible for relief pursuant to
section 1170.95 because he was found guilty of first degree
murder under the felony murder rule. The court construed the
filing as a petition for recall and resentencing under section
1170.95, and summarily denied it without appointing counsel,
finding Swanson ineligible for relief because he was convicted
under the provocative act doctrine, not the natural and probable
consequences doctrine or felony murder rule.
DISCUSSION
Swanson contends he made a prima facie showing of
entitlement to relief under section 1170.95, and the court erred
by denying him appointed counsel to support his showing. We
disagree with both contentions.
I. Legal Principles
“A conviction for murder requires the commission of an act
that causes death, done with the mental state of malice
aforethought (malice).” (People v. Gonzalez (2012) 54 Cal.4th
643, 653 (Gonzalez).)
Prior to the enactment of SB 1437, however, the felony-
murder rule provided a theory under which a defendant could be
found guilty of murder when the defendant or an accomplice
killed someone during the commission of an inherently dangerous
felony, whether or not the defendant harbored intent to kill or
malice. (Gonzalez, supra, 54 Cal.4th at p. 654.)
Also before SB 1437, malice could be imputed to an aider
and abettor under the natural and probable consequences
doctrine.
“ ‘ “A person who knowingly aids and abets criminal
conduct is guilty of not only the intended crime [target offense]

5
but also of any other crime the perpetrator actually commits
[nontarget offense] that is a natural and probable consequence of
the intended crime.” ’ [Citation.] ‘Thus, for example, if a person
aids and abets only an intended assault, but a murder results,
that person may be guilty of that murder, even if unintended, if it
is a natural and probable consequence of the intended assault.’
[Citation.] [¶] A nontarget offense is a ‘natural and probable
consequence’ of the target offense if, judged objectively, the
additional offense was reasonably foreseeable. [Citation.] The
inquiry does not depend on whether the aider and abettor
actually foresaw the nontarget offense. [Citation.] Rather,
liability ‘ “is measured by whether a reasonable person in the
defendant’s position would have or should have known that the
charged offense was a reasonably foreseeable consequence of the
act aided and abetted.” ’ ” (People v. Chiu (2014) 59 Cal.4th 155,
161-162.)
Thus, before SB 1437, an aider and abettor who lacked
express malice but merely engaged in activity of which murder
was a natural and probable consequence could have implied
malice imputed to him or her, and could therefore be convicted of
second degree murder. (People v. Chiu, supra, 59 Cal.4th at p.
164.)
On September 11, 2018, Governor Brown signed SB 1437
into law, which eliminated the natural and probable
consequences doctrine for murder and restricted felony murder to
circumstances where the defendant harbored malice or was a
major participant in the underlying felony and acted with
reckless indifference to human life.
A primary purpose of SB 1437 was to align a person’s
culpability for murder with his or her mens rea. (See Stats. 2018,

6
ch. 1015, § 1, subd. (g).) To effectuate that purpose, SB 1437
amended section 188 to state that “[m]alice shall not be imputed
to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
SB 1437 also added section 1170.95, which permits “[a]
person convicted of felony murder or murder under a natural and
probable consequences theory” to petition the sentencing court to
vacate the conviction and resentence on any remaining counts if
the person could not be convicted of murder under the new
section 188. (§ 1170.95, subd. (a).) A petition for relief under
section 1170.95 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).) If any of this information is missing
“and cannot be readily ascertained by the court,” the court may
deny the petition without prejudice. (§ 1170.95, subd. (b)(2).)
If the petition contains the required information, the 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 1170.95].” (§ 1170.95, subd. (c).) 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. (Ibid.)
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

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resentence the petitioner on any remaining counts. (Id. at subds.
(c) & (d)(1).)
To determine whether a petitioner has made a prima facie
case for relief under section 1170.95, a trial court may look to the
record of conviction, including the court file and the opinion from
the petitioner’s original appeal from his or her conviction. The
contents of the record of conviction defeat a prima facie showing
when the record shows as a matter of law that the petitioner is
not eligible for relief.
We review de novo whether the trial court properly
interpreted and fulfilled its duty under the statute. (See Greene
v. Marin County Flood Control & Water Conservation Dist. (2010)
49 Cal.4th 277, 287.)
II. Analysis
Swanson contends summary denial of his petition was
premature, and denied him a fair opportunity to respond to the
trial court’s erroneous conclusion that he was not convicted under
a natural and probable consequences or felony murder theory.
He argues he is eligible for resentencing under section 1170.95
because provocative act murder is merely a version of the natural
and probable consequences doctrine, and first degree provocative
act murder is “inextricably intertwined” with the felony murder
rule. We disagree.
A. Provocative Act Murder is Not a Natural and
Probable Consequences Theory
The record of conviction in this case demonstrates that
Swanson was convicted of first degree murder not under felony-
murder or natural and probable consequences theories, but under
the provocative act doctrine established by the Supreme Court in
People v. Gilbert (1965) 63 Cal.2d 690 (Gilbert). There, the Court

8
declared: “When the defendant or his accomplice, with a
conscious disregard for life, intentionally commits an act that is
likely to cause death, and his victim or a police officer kills in
reasonable response to such act, the defendant is guilty of
murder.” (Id. at p. 704.) “The provocative act murder doctrine
has traditionally been invoked in cases in which the perpetrator
of the underlying crime instigates a gun battle, either by firing
first or by otherwise engaging in severe, life-threatening, and
usually gun-wielding conduct, and the police, or a victim of the
underlying crime, responds with privileged lethal force by
shooting back and killing the perpetrator’s accomplice or an
innocent bystander.” (People v. Cervantes (2001) 26 Cal.4th 860,
867.)
It is apparent, therefore, that “[a] murder conviction under
the provocative act doctrine . . . requires proof that the defendant
personally harbored the mental state of malice.” (Gonzalez,
supra, 54 Cal.4th at p. 655; see People v. Mejia (2012) 211
Cal.App.4th 586, 603 [“a defendant . . . must personally possess
the requisite mental state of malice aforethought when he . . .
causes the death through his provocative act”].)
This malice requirement for provocative act murder was
well established in 1995 when we affirmed Swanson’s conviction.
(See, e.g., People v. Mai (1994) 22 Cal.App.4th 117, 124 [“an
element of the provocative act doctrine is implied malice”],
disapproved on other grounds in People v. Nguyen (2000) 24
Cal.4th 756, 757; see also Gilbert, supra, 63 Cal.2d at pp. 703-704
[defendant’s murder conviction based on police officer’s killing of
accomplice required proof of malice].)
The malice requirement stands in marked contrast to the
mens rea contemplated by the natural and probable consequences

9
doctrine. As discussed above, liability under that doctrine arose
when “a reasonable person in the defendant’s position would have
or should have known that the charged offense was a reasonably
foreseeable consequence of the act aided and abetted.” (People v.
Chiu, supra, 59 Cal.4th at p. 162, italics added.) The provocative
act doctrine, on the other hand, requires that the perpetrator
exhibit a “conscious disregard for life.” (Gilbert, supra, 63 Cal.2d
at p. 704; see People v. Smith (2018) 4 Cal.5th 1134, 1165
[knowledge of danger and conscious disregard for human life is
essential to a finding of implied malice]; People v. Lee (2020) 49
Cal.App.5th 254, 261 [the natural and probable consequences
doctrine is not an implied malice theory].)
Section 188, as amended, establishes that “in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought.” (§ 188, subd. (a)(3).) Because Swanson was
convicted of provocative act murder, the jury necessarily found he
acted with malice aforethought. He was therefore not convicted
under the natural and probable consequences doctrine. (Nor can
he show that he “could not be convicted of first or second degree
murder because of changes to Section 188 or 189” as required for
relief under section 1170.95, subdivision (a)(3).)
Swanson argues provocative act murder has been
characterized by the courts as one particular subset of the
natural and probable consequences doctrine. He finds this
characterization in several cases discussing the requirement,
under the provocative act doctrine, that the victim’s death result
from the victim’s or a police officer’s “reasonable response” to the
defendant’s actions. (Gilbert, supra, 63 Cal.2d at p. 704.)
Swanson misconstrues the courts’ discussions.

10
 In Gonzalez, upon which Swanson relies, the court stated,
“An important question in a provocative act case is whether the
act proximately caused an unlawful death. ‘[T]he defendant is
liable only for those unlawful killings proximately caused by the
acts of the defendant or his accomplice. [Citation.] “In all
homicide cases in which the conduct of an intermediary is the
actual cause of death, the defendant’s liability will depend on
whether it can be demonstrated that [the defendant’s] own
conduct proximately caused the victim’s death . . . .” [Citation.]
“[I]f the eventual victim’s death is not the natural and probable
consequence of a defendant’s act, then liability cannot attach.”
[Citations.]” ’ When the defendant commits an inherently
dangerous felony, the victim’s self-defensive killing is generally
found to be a natural and probable response to the defendant’s
act, and not an independent intervening cause that relieves the
defendant of liability. [Citations.] The question of proximate
cause is ordinarily decided by the jury . . . .” (Gonzalez, supra, 54
Cal.4th at pp. 655-656.)
Thus in any provocative act case, where by definition an
intermediary’s act killed the victim, an important question will
be whether the defendant’s conduct proximately caused the
death. (See In re Aurelio R. (1985) 167 Cal.App.3d 52, 57 [“A
‘provocative act’ murder is yet another breed. Here neither the
defendant nor his accomplices intend to kill the victim. Nor
indeed do any of them pull the trigger”].) The Court’s analysis of
proximate cause in terms of foreseeability of the natural and
probable consequences of the defendant’s malicious conduct does
not somehow bring a provocative act killing within the malice-
free natural and probable consequences doctrine.

11
 The remaining cases upon which Swanson relies for this
point are similarly distinguished. In People v. Fowler (1918) 178
Cal. 657, the Supreme Court upheld a murder conviction where
the death may have resulted not directly from the defendant’s
conduct but from the action of a third party in running over the
defendant’s victim. The Court stated that the defendant’s
criminal liability “would be similar to many that are given in the
books where the defendant was held responsible for the natural
and probable result of his unlawful acts.” (Id. at p. 669.)
In People v. Roberts (1992) 2 Cal.4th 271, an inmate
stabbed by the defendant staggered away and stabbed a guard to
death. In upholding the defendant’s conviction for the guard’s
murder, the Court held “there was sufficient evidence of
proximate cause for the jury to decide that liability attached for
defendant’s acts,” because “the evidence sufficed to permit the
jury to conclude that [the guard’s] death was the natural and
probable consequence of defendant’s act.” (Id. at p. 321.)
In People v. Medina (2009) 46 Cal.4th 913, the Court
explained, “Liability under the natural and probable
consequences doctrine ‘is measured by whether a reasonable
person in the defendant’s position would have or should have
known that the charged offense was a reasonably foreseeable
consequence of the act aided and abetted.’ [Citation.] [¶]
‘[A]lthough variations in phrasing are found in decisions
addressing the doctrine –“probable and natural,” “natural and
reasonable,” and “reasonably foreseeable”– the ultimate factual
question is one of foreseeability.’ [Citation.] Thus, ‘ “[a] natural
and probable consequence is a foreseeable consequence.” ’ ” (Id.
at p. 920.)

12
 In People v. Gardner (1995) 37 Cal.App.4th 473, the court
stated, “the term ‘reasonable response,’ which the Gilbert court
used to delineate the scope of murder liability, was simply a
shorthand way of expressing the principle that the killing must,
on an objective view of the facts, be proximately caused by the
acts of the defendant. . . . [¶] It is, therefore, clear that a
defendant may be liable for murder, as here, for a killing when
his acts were the ‘proximate cause’ of the death of the victim,
even though he did not administer the fatal wound. Our
Supreme Court has also phrased this same requirement of
‘proximate cause’ interchangeably, on the same page, with the
question of ‘natural and probable consequence.’ ” (Id. at p. 479.)
None of these cases held that a provocative act murder falls
under the natural and probable consequences theory of malice-
free murder. They held merely that a provocative act murder
requires a showing that defendant’s act was the proximate cause
of death, which can be shown where the death was a natural and
probable consequence of the act.
B. First Degree Provocative Act Murder does not
Fall Within the Felony Murder Rule
Swanson argues that because first degree provocative act
murder is “inextricably intertwined” with the felony murder rule,
the change in the rule effected by SB 1437 applies to convictions
for provocative act murder. We reject the premise, and thus the
argument.
A “[p]rovocative act murder may be either of the first or
second degree.” (People v. Mejia, supra, 211 Cal.App.4th at p.
604.) Like any other murder, a provocative act murder
committed without deliberation and premeditation is murder of
the second degree. (Ibid.) However, a provocative act murder of

13
the second degree can be elevated to first degree murder when it
occurs “during the course of a felony enumerated in section 189
that would support a first degree felony-murder conviction.”
(People v. Sanchez (2001) 26 Cal.4th 834, 852.)
Section 189 defines felony murder as a death resulting from
the perpetration of an enumerated felony by a person who “was a
major participant in the underlying felony and acted with
reckless indifference to human life.” When a provocative act
murder is established, “section 189 may properly be invoked to
determine the degree of that murder. Thus, . . . when a murder is
otherwise established, section 189 may be invoked to determine
its degree.” (Gilbert, supra, 63 Cal.2d at p. 705.)
The mere fact that a second degree provocative act murder
may be elevated to first degree murder pursuant to felony murder
principles neither intertwines provocative act murder with felony
murder nor transforms the former into the latter under Gilbert.
On the contrary, our Supreme Court has held that the
provocative act doctrine is “distinguished from the felony murder
rule.” (Gonzalez, supra, 54 Cal.4th at p. 654.)
Felony murder is a “murder . . . that is committed in the
perpetration of, or attempt to perpetrate arson, rape, carjacking,
robbery, burglary, mayhem, kidnapping, train wrecking, or any
act punishable under [specified sections of the Penal Code].”
(§ 189, subd. (a).) “Section 189 requires that the felon or his
accomplice commit the killing, for if he does not, the killing is not
committed to perpetrate the felony. Indeed, in the present case
the killing was committed to thwart a felony. To include such
killings within section 189 would expand the meaning of the
words ‘murder . . . which is committed in the perpetration . . . [of]

14
robbery . . .’ beyond common understanding.” (People v.
Washington (1965) 62 Cal.2d 777, 781.)
The felony-murder rule thus cannot support a murder
conviction when an accomplice is killed by a third party rather
than by the defendant or another accomplice. (Gonzalez, supra,
54 Cal.4th at p. 654.)
Swanson argues that elevation of an otherwise second
degree provocative act murder to first degree murder pursuant to
felony murder principles attaches first degree murder liability
where the mens rea was no different from that required in a
felony murder prosecution, because it is only by felony murder
principles that the mens rea required for first degree murder is
imputed to a provocative act defendant. (See People v. Sanchez,
supra, 26 Cal.4th at p. 852 [“provocative act implied malice
murders are first degree murders when they occur during the
course of a felony enumerated in section 189 that would support a
first degree felony-murder conviction”]; Pizano v. Superior Court
(1978) 21 Cal.3d 128, 139, fn. 4 [“The killing [of the robbery
victim], having been committed by the policeman to thwart the
robbery, cannot be said to have been committed in perpetration of
it. But the act which made the killing a murder attributable to
the robber—[the robber’s] initiating the gun battle [with the
policeman]—was committed in the perpetration of the robbery.
Therefore, . . . section 189 may properly be invoked to determine
that the murder is of the first degree”].)
Perhaps so. But that does not mean the killing was
“committed to perpetrate the felony” (People v. Washington,
supra, 62 Cal.2d at p. 781), nor that Swanson was “[a] person
convicted of felony murder,” as section 1170.95 requires

15
(§ 1170.95, subd. (a)). To hold that a killing perpetrated to
thwart a felony would constitute felony murder for purposes of
section 1170.95 would rewrite the statute. This we may not do.
Swanson argues that his first degree provocative act
murder conviction may signify no more than that the jury found
that the killing occurred during the commission of a robbery. We
disagree. To find Swanson guilty of provocative act murder in
the first instance, the jury necessarily found he acted with
malice. (See Gonzalez, supra, 54 Cal.4th at p. 655 [“A murder
conviction under the provocative act doctrine . . . requires proof
that the defendant personally harbored the mental state of
malice”].)
C. Remand is Not Appropriate
Swanson argues remand is necessary because the trial
court could not determine whether he was entitled to relief
without permitting the statutory process to take place, and he
was denied an opportunity to counter the court’s misconceptions
and establish an appellate record. We disagree.
The right to counsel under section 1170.95 does not attach
until the petitioner makes a prima facie showing of eligibility
under the statute (People v. Lewis, supra, 43 Cal.App.5th at pp.
1139-1140, review granted Mar. 18, 2020, S260598; cf. People v.
Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18,
2020, S260493). Swanson failed to demonstrate eligibility under
the statute. His arguments contesting that failure have all been
fairly presented by his appellate counsel, and an appellate record
preserved.

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 DISPOSITION
The order is affirmed.
CERTIFIED FOR PUBLICATION

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.

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