Filed 2/11/21 P. v. Jones CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A159422
v.
DARRELL JONES, (Alameda County
Super. Ct. No. 68930C)
Defendant and Appellant.
Darrell Jones appeals from a trial court decision denying his motion for
vacatur and resentencing under Penal Code section 1170.95 regarding his
1980 first degree murder conviction.1 He contends the trial court erred in
denying relief without first issuing an order to show cause and holding an
evidentiary hearing. Instead the trial court found at the prima facie stage,
based on the record of Jones’s conviction, including the unpublished decision
affirming his conviction on appeal, that Jones was a “major participant” in
the felony that resulted in the murder and that he acted “with reckless
indifference to human life.” The Attorney General concedes the trial court
erred by engaging in factfinding at the prima facie stage of the proceedings
and should have issued an order to show cause and held a hearing. We agree
and reverse for further proceedings.
1 Further statutory references are to the Penal Code.
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BACKGROUND
In February 1979, four armed men entered the cafeteria of a church
and school, where about 200 people were assembled for a weekly bingo game.
One yelled “Freeze. THIS IS A STICK-UP,” and the four began shooting
toward the ceiling. A bullet hit and killed one of the bingo participants.
Three of the men, one of whom was Jones, were tried jointly to a jury,
which was instructed on the felony murder rule. There was evidence that
some of the defendants, including Jones, did not intend to shoot or kill
anyone. In May 1980, the jury found Jones and his two co-defendants guilty
of murder, assault with a deadly weapon, burglary and attempted robbery, all
with arming allegations, and each was sentenced to 25 years to life.
In January 2019, Jones filed a petition in Alameda County Superior
Court under section 1170.95. He alleged that, although he was convicted of
first degree murder, he was not the actual killer, did not intentionally aid
and abet the murder, was not a major participant in the underlying felony
and did not act with reckless indifference to human life, and that the murder
victim was not a peace officer engaged in his or her duties.
The trial court appointed counsel and ordered the district attorney to
respond to the petition. The prosecutor subsequently argued, based in part
on the unpublished opinion of this court affirming the 1980 judgment and in
part on transcripts of the trial,2 that the facts showed Jones was a major
participant acting with reckless disregard to human life.
At the initial hearing on Jones’s petition, the trial court found, based on
facts derived from trial transcripts and the appellate opinion, that Jones was
“a major participant who acted with [reckless indifference to human life]” and
2 The trial transcripts are cited in the prosecutor’s brief in the trial
court but not included in the record on appeal.
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“that he has not made a prima facie showing.” The court stated, “These facts
would survive changes to Penal Code Section 188 and 189. If this case
occurred today, the prosecution could proceed on these facts and would
certainly survive those changes to those statutes. [¶] So I find that no prima
facie case has been made, and I’m denying the petition on that basis.”
Jones timely appealed.
DISCUSSION
In 2018, the Legislature adopted Senate Bill No. 1437 (S.B. 1437) to
amend the felony murder rule and the natural and probable consequences
doctrine as they relate to murder. As we recently explained in People v.
Duchine (Feb. 9, 2021, A157980) __ Cal.App.5th __ [2021 Cal.App. Lexis
114].) (Duchine), “S.B. 1437 changed California’s murder laws in three
specific ways. “ ‘First, to amend the felony-murder rule, [S.B.] 1437 added
section 189, subdivision (e): “A participant in the perpetration or attempted
perpetration of [qualifying felonies] in which a death occurs 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.” ’ ([People v.] Gentile [2020] 10 Cal.5th [830,] 842 [Gentile].)
‘Second, to amend the natural and probable consequences doctrine,
[S.B.] 1437 added section 188, subdivision (a)(3) . . . : “Except [for felony-
murder liability] 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 imputed to a person based solely on his or
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her participation in a crime.” ’ (Gentile, supra, at pp. 842-843.) ‘Third,
[S.B.] 1437 added section 1170.95 to provide a procedure for those convicted
of felony murder or murder under the natural and probable consequences
doctrine to seek relief under the two ameliorative provisions above.’ (Id. at
p. 843.)
“Section 1170.95 is the exclusive avenue by which those previously
convicted of murder under now-invalid theories may obtain retroactive relief.
(Gentile, supra, 10 Cal.5th at p. 853.) It ‘lays out a process for a person
convicted of felony murder or murder under a natural and probable
consequences theory to seek vacatur of his or her conviction and
resentencing.’ (See ibid.) Further, the relief is fully retroactive, applying not
only to defendants whose convictions are not yet final but to all those
convicted of murder under a natural and probable consequences or felony
murder theory, no matter how long ago they were convicted, if certain
conditions are met. (Ibid. [section 1170.95 ‘ “facially applies to both final and
nonfinal convictions” ’].)” (Duchine, supra, ___ Cal.App.5th __ [2021 Cal.App.
Lexis 114 at pp. 13-15 ], fn. omitted.)
Further, as we explained in People v. Anthony (2019) 32 Cal.App.5th
1102, “ ‘Pursuant to section 1170.95, subdivision (c), the petition shall
include, among other things, a declaration by the petitioner stating he or she
is eligible for relief based on all three aforementioned requirements of
subdivision (a). A trial court that receives a petition under section 1170.95
“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.”
(§ 1170.95, subd. (c).) If the petitioner has made such a showing, the trial
court “shall issue an order to show cause.” (§ 1170.95, subd. (c).)
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“ ‘The trial court must then hold a hearing “to determine whether to
vacate the murder conviction and to recall the sentence and resentence the
petitioner on any remaining counts in the same manner as if the petitioner
had not . . . previously been sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).) . . .
Significantly, if a hearing is held, “[t]he prosecutor and the petitioner may
rely on the record of conviction or offer new or additional evidence to meet
their respective burdens.” (§ 1170.95, subd. (d)(3).) “[T]he 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).) “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.”
(§ 1170.95, subd. (d)(3).)’ ” (Id. at pp. 1148-1149.)
In Duchine, after reviewing the record of conviction, the trial court
denied the petition at the prima facie stage because it found that “ ‘a
reasonable trier of fact could reach a guilty verdict on a charge of murder on
the basis that defendant was a major participant in the underlying felony of
robbery and acted with reckless indifference to human life . . . .’ ” (Duchine,
supra, ___ Cal.App.5th __ [2021 Cal.App. Lexis 114 at pp. 10-11].) We
reversed, holding that “the time for weighing and balancing and making
findings on the ultimate issues arises at the evidentiary hearing stage rather
than the prima facie stage, at least where the record is not dispositive on the
factual issues. Thus, absent a record of conviction that conclusively
establishes that the petitioner engaged in the requisite acts and had the
requisite intent, the trial court should not question his evidence.” (Id. at
pp. 25-26.)
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Here, the trial court made a finding based on the record of conviction
that Jones was a major participant and acted with reckless indifference to
human life.3 As the People concede, and as we concluded in Duchine, this
was based on an erroneous interpretation of section 1170.95. Agreeing with
People v. Drayton (2020) 47 Cal.App.5th 965, we observed that “[t]he major
participant and reckless indifference findings the trial court made based
solely on the record evidence entail the weighing of evidence, drawing of
inferences, and assessment of credibility that should be left to the factfinding
hearing process contemplated by section 1170.95, subdivision (d). (Drayton,
supra, 47 Cal.App.5th at p. 982.)” (Duchine, supra, ___ Cal.App.5th __ [2021
Cal.App. Lexis 114 at p. 27].) The Legislature contemplated that the trial
judge would engage in factfinding, but only after an order to show cause is
issued, an evidentiary hearing held, and an opportunity provided for either
party, at that hearing, to present new evidence in addition to that contained
in the record of conviction. At this factfinding stage of the proceedings, the
prosecutor bears the burden of proof beyond a reasonable doubt to show the
petitioner is guilty of murder under a theory that remains valid after the
enactment of S.B. 1437. (See § 1170.95, subd. (d).) This error requires
reversal and remand so that the required hearing may be held.
DISPOSITION
For the foregoing reasons, we reverse the trial court’s order denying the
petition and remand with directions to vacate its order denying Jones’s
3 This case does not involve a second error and independent basis for
reversal that the trial court committed in Duchine, which was that, instead of
considering whether the petitioner was guilty under a still valid theory of
murder, it answered the very different (and incorrect) question whether the
petitioner “could theoretically have been found guilty under” such a theory.
(See Duchine, supra, ___ Cal.App.5th __ [2021 Cal.App. Lexis 114 at p. 27].)
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petition, issue an order to show cause under section 1170.95, subdivision (c)
and hold a hearing pursuant to section 1170.95, subdivision (d) to determine
whether to vacate Jones’s murder conviction and recall his sentence and
resentence him.
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STEWART, J.
We concur.
KLINE, P.J.
RICHMAN, J.
People v. Jones (A159422)
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