People v. Mallet CA2/1

Filed 1/28/21 P. v. Mallet CA2/1
Opinion following recall of remittitur
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B301369

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A619834)
v.

JEROME EVAN MALLET,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, John J. Lonergan, Jr., Judge. Reversed and
remanded with directions.
Tracy A. Rogers, 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, Charles S. Lee and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________
 In 1981, a jury convicted Jerome Evan Mallet of first
degree murder and other charges. On January 16, 2019, Mallet
filed a petition for resentencing under Penal Code section
1170.95,1 which the trial court summarily denied. Mallet appeals
from this denial. The appeal centers on a common issue faced by
trial courts in applying section 1170.95, namely, the scope of the
trial court’s prima facie review of the petition. In this case, the
People agree the trial court exceeded the scope of this review by
making factual findings. We agree and reverse with instructions
for the trial court to issue an order to show cause and conduct a
hearing pursuant to section 1170.95, subdivision (d).
BACKGROUND
A. Summary of Facts
This court affirmed the judgment on June 29, 1983. (People
v. Mallet (June 29, 1983, No. 41449) [nonpub. opn.].) The
following summary of the facts is derived from our unpublished
opinion from Mallet’s direct appeal.
On December 27, 1980, between 11:00 p.m. and midnight,
Cora Taylor2 was at home with her daughter Mary, her son
Michael, and Michael’s friend, William Birdsong. According to
Cora’s trial testimony, following a knock at the front door, Mallet
and two other young men entered her apartment and asked to
speak with “Pierre,” a nickname for Michael. As the three men,
Cora, Michael, Mary, and Birdsong gathered in the combined
living room and bedroom, Mallet hit Birdsong in the mouth and a

1 All unspecified statutory references are to the Penal Code.
2Because they share the same last name, we will refer to
Cora Taylor and her children, Mary and Michael, by their first
names, intending no disrespect.

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scuffle ensued. Michael stated he knew Mallet from the local
park. At trial, Mary testified she had seen Mallet twice before in
their neighborhood.
Mallet directed the four occupants to lie on the bed face
down and a coat was thrown over their heads. The assailants
started ransacking the house. Cora observed that Mallet had a
gun. At one point, he aimed a gun at Cora and said, “You old
bitch, I ought to blow your head off.” The assailants asked the
Taylors and Birdsong if there was money in the house and were
told there was none. Birdsong was asked if he had any money; he
said he had five dollars. He was told that if it was discovered
that he had more, his head would be blown off. One of the
assailants went through Birdsong’s pockets, and whispered in
Birdsong’s ear, “You have been invited to your friend’s death.”
Cora’s purse was taken, and the assailants continued ransacking
her home.
At one point, Mallet hit Mary near her left ear. Cora also
was struck. Cora, who was able to catch glimpses of what was
occurring by peeking from under the coat, saw one of the
assailants pull Mary off the bed by her hair. Then, someone also
pulled Birdsong up by his hair. Cora and Michael were told to
stand. Michael was asked about money, and he said there was
some money in the kitchen.
One of the assailants raped Mary in the bathroom. Mallet
attempted to rape Mary. Cora and Birdsong subsequently were
pushed into the bathroom with Mary. While the bathroom door
was closed, they heard gunshots. Cora testified that she peeked
through the bathroom door and saw Michael lying in a puddle of
blood in the living room. He had been shot in the head. Birdsong
testified that one of the assailants said to Michael, “We don’t like

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you anyway.” At trial, Cora and Mary identified Mallet as the
gunman.
The suspects fled. A few minutes after midnight, law
enforcement officers near the local park saw a vehicle traveling
without lights. Officers pursued the vehicle, which crashed.
Four young men ran from the vehicle and officers subsequently
found Mallet nearby, hiding in a bush.
Officers recovered a stereo and a .357 Luger pistol from the
getaway vehicle. It was determined that Michael died of a
gunshot wound to the head. Due to the damaged condition of the
bullet removed from his body, it was not possible to correlate the
bullet to the Luger. (People v. Mallet, supra, No. 41449.)
B. The Jury Verdict and Sentencing Hearing
Following a jury trial, Mallet was convicted of one count of
first degree murder under section 187 (count 1), two counts of
rape in concert under section 264.1 (counts 2 & 3), one count of
assault with intent to commit rape under section 220 (count 4),
one count of burglary under section 459 (count 5), and three
counts of robbery under section 211 (counts 6 through 8). The
jury found true the allegations that Mallet personally used a
firearm and that a principal was armed with a firearm in the
commission of all the offenses, except count 4, assault with intent
to commit rape.3
As to count 6, which charged Mallet with robbery of
Michael, the murder victim, it was alleged that Mallet personally
inflicted great bodily injury on Michael. The jury found this
allegation to be not true. The jury deadlocked on the special

3 Thetrial court granted a motion to dismiss the principal
armed allegation with respect to count 4.

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circumstance allegations that the murder was committed during
the commission of a robbery and a burglary—which, prior to the
passage of Proposition 115 in 1990, necessarily would have
required the jury to find that Mallet was the actual killer or
intentionally aided and abetted in first degree murder. (§ 190.2;
see People v. Banks (2015) 61 Cal.4th 788, 798 [“as it stood in
1990, state law made only those felony-murder aiders and
abettors who intended to kill eligible for a death sentence”];
Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 986-987
[discussing amendments to § 190.2 following passage of
Proposition 115].)
The special circumstance allegations were dismissed at the
time of sentencing. At the sentencing hearing, the trial court
commented that based on the jury’s failure to find that Mallet
inflicted great bodily injury on the murder victim, the jury
apparently felt that Mallet was not the actual killer. The trial
court clarified, “for the purpose of the record, I am going to
conclude that [Mallet] was not the actual shooter. Nor did he
actually aid and abet the actual shooter [¶] . . . [¶] [w]ithin the
meaning of [section] 190.[2], because I could see some problems
with respect to the special circumstance, and apparently one or
more of the jurors did too.” “I just want the record to be clear so
that the appellate court won’t think I am sentencing him on the
basis that he actually aided and abetted the actual shooter.” The
trial court predicated its sentencing decision on a finding that the
murder was committed during a robbery. The court sentenced
Mallet to state prison for the term prescribed by law on the
murder count, plus two years for the firearm enhancement, to be
served consecutive to a total term of 21 years and four months on
the remaining counts.

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C. The Direct Appeal
On appeal, Mallet argued, among other things, that the
felony-murder doctrine was unconstitutional because it permitted
a finding of malice aforethought as a matter of law when a killing
occurred during the commission of certain enumerated felonies.
We acknowledged that the issue was under review in the
California Supreme Court. Our decision recited the current state
of the law, as embodied in People v. Johnson (1974) 38
Cal.App.3d 1, 8, which held that the felony-murder rule
“dispenses with premeditation and malice as elements of first
degree murder.”
We noted there was no eyewitness testimony about the
actual shooting of Michael. The prosecution’s theory was that
Mallet shot and killed Michael while perpetrating a robbery. We
found there was some question “of the presence of actual, rather
than artificially presumed, malice.” (People v. Mallet, supra,
No. 41449.) Nonetheless, because malice aforethought was not
an element of felony murder, we upheld the conviction under the
existing law.
D. The Petition for Resentencing
Mallet filed a petition for resentencing under section
1170.95 on January 16, 2019. He alleged that he was convicted of
felony murder under a theory that is now invalid. The trial court
appointed counsel to represent Mallet.
The People filed an opposition to Mallet’s petition. The
opposition attached and cited to the information, a probation
report, the abstract of judgment, the remittitur from the direct
appeal, a comprehensive risk assessment of Mallet, a life prisoner
evaluation, and transcripts of hearings relating to evidence and
jury selection. Mallet, via his counsel, filed a reply.

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 On September 10, 2019, the trial court summarily denied
Mallet’s section 1170.95 petition. In doing so, the trial court’s
minute order specified that it reviewed Mallet’s petition, the
People’s response, “the court file (if available),” and any appellate
decisions. However, the trial court also stated that it derived the
summary of facts on which it based its ruling on “the appellate
decision, People’s response in opposition to the petition and police
reports.”
The trial court observed that it was not known whether
Mallet was the actual killer. “Assuming he was not the one to
fire the fatal shot,” the court concluded, “Mallet clearly aided and
abetted in the killing. In addition, the facts surrounding this
incident show Mallet had the specific intent to kill Michael.” The
trial court further concluded that Mallet was a major participant
in the crime who acted with reckless indifference to human life
because he initially possessed the firearm, he was the first to
make physical contact with one of the victims “when he grabbed
Birdsong,” he demanded money and drugs from the victims, he
attempted to rape Mary, and he acted with the other assailants
to isolate Michael from the other victims before killing him.
In response to our order for augmentation of the record, the
trial court transmitted the superior court file and exhibits for our
inspection. The clerk of the superior court certified that the
police report was not located. The augmented record contains the
transcript of the sentencing hearing, the abstract of judgment,
and our opinion on direct appeal, among other records not
relevant to our decision. It does not contain the jury instructions,

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jury questions, verdict forms, or transcripts of the trial testimony
and arguments of counsel.4
Mallet timely appealed the September 10, 2019, order.
DISCUSSION
A. Section 1170.95
Mallet argues the trial court erred by denying his petition
for resentencing without issuing an order to show cause or
conducting an evidentiary hearing. The People agree,
acknowledging that the record of conviction does not demonstrate
as a matter of law that Mallet was either the actual killer, acted
with specific intent to kill, or was a major participant who acted
with reckless indifference to human life.
Senate Bill No. 1437 (2017-2018 Reg. Sess.) was enacted “to
amend the felony murder rule and 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, subd. (f);
People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted
Mar. 18, 2020, S260598.) Senate Bill No. 1437 accomplished this

4 Based upon the trial court’s statement that it reviewed
“the court file (if available),” it is unclear whether it had before it
the same documents that were provided in response to our order
for augmentation. The documents contained in the augmented
record are at odds with the trial court’s statement that it
reviewed “the court file (if available),” and “police reports.” Based
on our decision to remand this matter for further proceedings, we
need not consider the effect of this ambiguity.

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by amending section 188, which defines malice, and section 189,
which defines the degrees of murder, and as now amended,
addresses felony murder liability under subdivision (e). (People v.
Verdugo (2020) 44 Cal.App.5th 320, 326, review granted Mar. 18,
2020, S260493.)
Senate Bill No. 1437 also enacted section 1170.95, which
provides a vehicle for persons who were convicted of murder
pursuant to a now invalidated theory to petition to have their
conviction vacated and to be resentenced. (Lewis, supra, 43
Cal.App.5th at p. 1135; see § 1170.95 subd. (a).)
Section 1170.95 requires the trial court to engage in
multiple levels of review. (People v. Drayton (2020) 47
Cal.App.5th 965, 975; People v. Verdugo, supra, 44 Cal.App.5th at
pp. 327-328; People v. Lewis, supra, 43 Cal.App.5th at pp. 1136-
1138.) The trial court first conducts an initial review to
determine the facial sufficiency of the petition. (§ 1170.95,
subd. (b); Drayton, supra, at p. 974; Verdugo, supra, at p. 328.) If
the petition includes the required information, the trial court
then reviews the petition to determine whether the petitioner has
made a prima facie showing of eligibility. (§ 1170.95, subd. (c);
Drayton, supra, at pp. 975-976; Verdugo, supra, at pp. 327-328,
330; Lewis, supra, at p. 1138.) If so, the trial court must then
appoint counsel and order briefing to assist the trial court in
determining whether the petitioner has made a prima facie
showing that he or she is entitled to relief. (§ 1170.95, subd. (c);
Verdugo, supra, at p. 332 [concluding under subd. (c) of § 1170.95,
the petitioner must demonstrate two prima facie showings];
Lewis, supra, at p. 1140 [holding § 1170.95, subd. (c) does not
require appointment of counsel “until the court makes the

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threshold determination that [the] petitioner ‘falls within the
provisions’ of the statute”].)
In determining whether a petitioner has demonstrated the
prima facie showings, the trial court may review the record of
conviction. (People v. Lewis, supra, 43 Cal.App.5th at p. 1138.)
The record of conviction may include the complaint, information
or indictment, the verdict forms or the factual basis for a
negotiated plea, the abstract of judgment, and any appellate
decision on direct appeal. (People v. Verdugo, supra, 44
Cal.App.5th at pp. 329-330, 331-333; Lewis, supra, at p. 1138.)
At these initial stages, the trial court’s role is to determine
whether the petitioner is ineligible for relief as a matter of law,
making all factual inferences in favor of the petitioner. (People v.
Drayton, supra, 47 Cal.App.5th at p. 980; People v. Verdugo,
supra, 44 Cal.App.5th at p. 329.) It must not engage in fact-
finding or assess the credibility of the witnesses. (Drayton,
supra, at p. 980.) The court “is limited to readily ascertainable
facts from the record (such as the crime of conviction), rather
than factfinding involving the weighing of evidence or the
exercise of discretion (such as determining whether the petitioner
showed reckless indifference to human life in the commission of
the crime).” (Ibid.)
If the petitioner satisfies both prima facie showings, then
the trial court must issue an order to show cause why
resentencing relief should not be granted. (§ 1170.95, subd. (c);
People v. Verdugo, supra, 44 Cal.App.5th at pp. 328-329.) “At the
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. . . .” (§ 1170.95, subd. (d)(3).) “The prosecutor and

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the petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (Ibid.)
B. The Trial Court Erred in Summarily Denying
Mallet’s Section 1170.95 Petition
In the present case, the jury did not determine that Mallet
was the actual killer, aided and abetted in the first degree
murder with the intent to kill, or was a major participant who
acted with reckless indifference to human life. The jury was
unable to reach a verdict on the special circumstance allegations
and found not true the allegation that Mallet inflicted great
bodily injury on Michael while committing the robbery. In fact,
during sentencing, the trial court went so far as to observe that,
in its view, Mallet was not the actual killer and did not aid or
abet in the killing. Thus, although the jury instructions are not
available, the trial court’s comments at sentencing indicate that
Mallet was convicted on a theory of felony murder based solely on
the commission of the underlying robbery. As we noted on direct
appeal, at the time of Mallet’s trial in 1981, the felony murder
rule did not require proof of premeditation and malice. (See
People v. Chun (2009) 45 Cal.4th 1172, 1182 [under prior law, a
killing committed during an enumerated felony supports a
murder conviction “without the necessity of further examining
the defendant’s mental state”].)
In reaching the conclusions that Mallet aided and abetted
with the specific intent to kill, or that he was a major participant
who acted with reckless indifference to human life, the trial court
engaged in the type of factfinding that is not permissible prior to
the issuance of an order to show cause under section 1170.95,
subdivision (c). (See People v. Drayton, supra, 47 Cal.App.5th at
p. 982.) The record of conviction does not establish as a matter of

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law that Mallet is ineligible for relief under section 1170.95.
Accordingly, the matter must be remanded for an order to show
cause pursuant to section 1170.95, subdivision (c), and a hearing
pursuant to section 1170.95, subdivision (d), during which the
parties may “rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (§ 1170.95,
subd. (d)(3).) We express no opinion on Mallet’s ultimate
entitlement to relief following a hearing.
DISPOSITION
The order denying Mallet’s petition for resentencing under
section 1170.95 is reversed and the matter is remanded to the
superior court. On remand, the superior court shall issue an
order to show cause and conduct a hearing in accordance with
section 1170.95, subdivisions (c) and (d).
NOT TO BE PUBLISHED

FEDERMAN, J.*

We concur:

CHANEY, J.

BENDIX, Acting P. J.

*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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