Filed 2/11/21 P. v. Sims CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B302109
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA046081)
v.
RASHIED SIMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Reversed and remanded
with directions.
Vanessa Place, 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, Senior
Assistant Attorney General, Scott A. Taryle and Nancy Lii
Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Rashied Sims, who was convicted
of first degree murder, appeals from an order denying his petition
for resentencing under newly-enacted Penal Code section
1170.95.1 The trial court appointed counsel for Sims and set the
matter for a hearing, then denied the petition. On appeal, Sims
argues, respondent concedes, and we agree the trial court erred
in concluding Sims had not stated a prima facie case for relief.
We reverse.
FACTUAL AND PROCEDURAL HISTORY
In 1991, Sims was charged with first degree murder,
robbery, and assault with a deadly weapon. The evidence at trial
showed that Sims and two friends robbed a man at gunpoint.
While Sims and codefendant John Horton snatched chains from
the victim’s neck, their other friend, Byone Woods III, held a gun
to the victim’s head. When the victim attacked the gunman,
Sims separated the men. The victim struggled again with the
gunman, who then shot him. The jury was instructed on felony
murder. In 1993, Sims was found guilty of all charges, and
sentenced to a total of 35 years to life.
In 2019, Sims filed a section 1170.95 petition for
resentencing of his murder conviction.2 The District Attorney
1 All undesignated statutory references are to the Penal
Code.
2 Sims and Horton were codefendants at the murder trial. In
1995, a prior panel of this division filed a single opinion
upholding both convictions. In 2019, Sims and Horton filed
section 1170.95 petitions which were heard and denied by the
same trial judge (BA046081). Sims and Horton filed separate
appeals from the denial of the resentencing petitions.
Concurrently with the filing of this opinion, we also are filing an
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filed an opposition, arguing that Sims was a major participant in
the underlying crime who had acted with reckless indifference to
human life. Sims was appointed counsel and filed a reply
arguing there was no evidence Sims acted with reckless
indifference to human life.
The court held a hearing on whether Sims made a prima
facie showing of relief. At the hearing, the court found it was “the
defendant’s burden to establish a prima facie case . . . that he
could not be convicted of first or second degree murder.” The
court concluded that, “as a matter of law, [Sims] could have been
convicted under the law as it now stands; and therefore, has
failed to establish a prima facie case for relief.” The petition was
denied, and Sims appealed.
DISCUSSION
Senate Bill No. 1437 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.” (Sen. Bill No. 1437 (2017–2018 Reg. Sess.) § 1; see People v.
Verdugo (2020) 44 Cal.App.5th 320, 325 (Verdugo), review
granted Mar. 18, 2020, S260493.) Senate Bill No. 1437 also
created section 1170.95 which allows defendants convicted of
murder under the old law to seek resentencing if their convictions
do not satisfy the requirements of the amended law.
opinion in Horton’s resentencing appeal affording him the same
relief as Sims (B303337). The record does not reveal the
resolution of the charges against Byone Woods III.
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Section 1170.95, subdivision (c) requires the trial court to
conduct a two-step prima facie analysis. Step one is a screening
of the petition by the court. If the court determines at this first
stage the petitioner is ineligible for relief as a matter of law, the
petition is denied; if not, the court proceeds to the next step.
(People v. Torres (2020) 46 Cal.App.5th 1168, 1178, review
granted June 24, 2020, S262011.) Step two requires the court to
appoint counsel for the defendant, if requested, and permit
briefing on the issue of the defendant’s entitlement to relief under
the statute. (Verdugo, supra, 44 Cal.App.5th at p. 330.) As in
step one, a petitioner fails to satisfy step two if he is not entitled
to relief as a matter of law, but step two differs in that the parties
may present materials from the record of conviction to aid the
court. (Id. at p. 330, fn. 9.) The trial court may not engage in
“fact finding” at this stage; rather, step two is concerned with
examining the record of conviction to determine whether the
defendant is ineligible for relief as a matter of law. (People v.
Drayton (2020) 47 Cal.App.5th 965, 982 (Drayton).) At both step
one and step two, the court makes “all factual inferences in favor
of the petitioner.” (Verdugo, supra, 44 Cal.App.5th at p. 329.) At
the second stage, unless defendant is not entitled to relief as a
matter of law, the court must issue an order to show cause and
proceed to the third stage. At the third stage, the court holds a
hearing where the People have the burden of proving beyond a
reasonable doubt that the defendant is ineligible for
resentencing. (§ 1170.95, subds. (c) & (d)(1); Verdugo, supra,
44 Cal.App.5th at p. 328.)
Here, the record showed that Sims could have been
convicted based on a felony murder theory. Under the amended
felony murder law, that conviction cannot stand unless he was a
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major participant in the underlying felony who acted with
reckless indifference to human life. At the prima facie stages, the
trial court may not resolve disputed facts and must make all
factual inferences in favor of the petitioner. (Drayton, supra,
47 Cal.App.5th at p. 982; Verdugo, supra, 44 Cal.App.5th at
p. 329.) Here, the trial court erred in placing the burden on Sims
to prove he could not be convicted of murder, and drawing all
inferences in favor of the conviction. The record did not establish
that Sims was necessarily convicted of murder based on a finding
that he was a major participant in the robbery who acted with
reckless indifference to human life. (See People v. Chun (2009) 45
Cal.4th 1172, 1184 [before Senate Bill No. 1437, section 189
permitted a conviction for felony murder based on simply
imputing malice to those who committed a felony inherently
dangerous to human life which resulted in homicide].) As the
Attorney General acknowledges in his respondent’s brief, the
record did not show Sims was not entitled to section 1170.95
relief as a matter of law, and the trial court should have issued
an order to show cause (§ 1170.95, subds. (c) & (d)(1)).
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DISPOSITION
The order denying Sims’ section 1170.95 petition is
reversed and the matter remanded with directions for the trial
court to issue an order to show cause and hold a hearing on
whether Sims’ murder conviction should be vacated.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
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