Filed 2/11/21 P. v. Horton CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B303337
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA046081)
v.
JOHN T. HORTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Reversed and remanded
with directions.
Joshua L. Siegel, 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, Daniel C. Chang and Roberta L.
Davis, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant John Horton, 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 Horton and set
the matter for a hearing, then denied the petition. On appeal,
Horton argues, respondent concedes, and we agree the trial court
erred in concluding Horton had not stated a prima facie case for
relief. We reverse.
FACTUAL AND PROCEDURAL HISTORY
In 1991, Horton was charged with first degree murder,
robbery, and assault with a deadly weapon. The evidence at trial
showed that Horton and two friends, Rashied Sims and Byone
Woods III, robbed a man at gunpoint. While Horton and Sims
snatched chains from the victim’s neck, Woods held a gun to the
victim’s head. When the victim attacked the gunman, Sims
separated the men. The victim then struggled again with Woods,
who shot him. The jury was instructed on felony murder. In
1993, Horton was found guilty of all charges, and sentenced to a
total of 35 years to life.
In 2019, Horton filed a section 1170.95 petition for
resentencing of his murder conviction.2 The trial court appointed
1 All undesignated statutory references are to the Penal
Code.
2 Horton and Sims were codefendants at the murder trial. In
1995, a prior panel of this division filed a single opinion
upholding both convictions. In 2019, Horton and Sims filed
section 1170.95 petitions which were heard and denied by the
same trial judge (BA046081). Horton and Sims filed separate
appeals from the denial of the resentencing petitions.
Concurrently with the filing of this opinion, we also are filing an
2
counsel, both parties filed briefs, and the court held a hearing on
whether Horton made a prima facie showing that he fell within
the provisions of section 1170.95. The court denied the petition,
stating, “Given my reading of the facts of this case, it is my belief
that Mr. Horton, in fact, was a major participant in the crimes
charged in this case, and did act with reckless disregard for
human life. [¶] And as such, cannot make a prima facie case or
has not made a prima facie case for relief pursuant to Penal Code
section 1170.95, because he could be convicted of first degree
murder based upon his conduct in this matter.” The petition was
denied, and Horton 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.
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
opinion in Sims’s resentencing appeal affording him the same
relief as Horton (B302109). The record does not reveal the
resolution of the charges against Byone Woods III.
3
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 Horton could have been
convicted based on a felony murder theory. Under the amended
felony murder law, that conviction cannot stand unless he was a
major participant in the underlying felony who acted with
reckless indifference to human life. At the second stage, the trial
court may not resolve disputed facts and must make all factual
4
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
Horton to prove he could not be convicted of murder under the
amended law, and drawing all inferences in favor of the
conviction. The record did not establish that Horton 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
Horton 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)).
5
DISPOSITION
The order denying Horton’s section 1170.95 petition is
reversed and the matter remanded with directions that the trial
court issue an order to show cause and hold a hearing on whether
Horton’s murder conviction should be vacated.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
6