Filed 4/15/21 P. v. Nelson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
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THE PEOPLE, C090764
Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE-
2010-0004450, SC040989A)
v.
LASCHELL GENISE NELSON,
Defendant and Appellant.
In October 1988, defendant Laschell Genise Nelson pleaded no contest to murder,
stipulating to the preliminary hearing transcript as the factual basis for her plea. In
accordance with her plea, the trial court sentenced defendant to an indeterminate term of
15 years to life in state prison.
In September 2019, defendant filed a petition for resentencing under newly
enacted Penal Code section 1170.95.1 The trial court found defendant ineligible for relief
in a written order, entered without eliciting any response from the People or holding a
hearing.
1 Undesignated statutory references are to the Penal Code.
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Defendant now contends the trial court erred when it engaged in fact-finding
without appointing counsel or affording the parties an opportunity to file additional
briefing. The People agree the matter should be remanded for further proceedings, and
we do too.
BACKGROUND
In September 2019, defendant filed a petition to vacate her conviction pursuant to
section 1170.95 and attached her own declaration. In her declaration, defendant checked
the boxes to indicate (1) a complaint, information, or indictment was filed against her that
allowed the prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine, and she pleaded no contest to first or second
degree murder in lieu of going to trial because she believed she could have been
convicted of either crime “pursuant to the felony murder rule or the natural and probable
consequences doctrine.” Defendant also checked the box to indicate that she “could not
now be convicted of murder because of changes to Penal Code § 188, effective January 1,
2019.” In addition, defendant asked that counsel be appointed for the resentencing
process. The record on appeal does not show that the prosecution responded
substantively to defendant’s petition.
The trial court denied defendant’s petition. In a written decision, the trial court
summarized the evidence adduced at the preliminary hearing, noting that there was
evidence defendant agreed to have sex with the victim while her codefendant stole money
from him. According to the evidence, the victim was killed by blunt force trauma to the
head; some evidence indicated defendant struck the victim with a baseball bat, while
other evidence indicated her codefendant struck the blow. The trial court quoted
testimony from defendant and also from the codefendant, each confessing to killing the
victim. Nevertheless, based on the preliminary hearing transcript, the trial court found
that defendant was “an actual perpetrator and was a major participant in the crime and
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acted with willful indifference to human life.” The trial court concluded defendant is not
entitled to relief under section 1170.95, subdivision (b)(1).
DISCUSSION
Defendant claims the trial court erred when it engaged in fact-finding without
appointing counsel or affording the parties an opportunity to file additional briefing. The
People agree. The People seek remand for immediate appointment of counsel, to be
followed by a briefing order and further proceedings under section 1170.95 that may be
required following consideration of briefing. Defendant argues that this court should
review the prima facie determination de novo and order immediate issuance by the trial
court of an order to show cause. We will remand for immediate appointment of counsel,
followed by briefing and any subsequent proceedings that may be deemed necessary by
the trial court.
A
“Under prior California law, a defendant who aided and abetted a crime, the
natural and probable consequence of which was murder, could be convicted not only of
the target crime but also of the resulting murder. (People v. Chiu (2014) 59 Cal.4th 155,
161.) This was true irrespective of whether the defendant harbored malice aforethought.
Liability was imposed ‘ “for the criminal harms [the defendant] . . . naturally, probably,
and foreseeably put in motion.” [Citations.]’ (Id. at pp. 164-165, italics omitted.)” (In re
R.G. (2019) 35 Cal.App.5th 141, 144.)
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017-2018
Reg. Sess.). 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Effective January 1,
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2019, the legislation amended sections 188 and 189 and added section 1170.95 to the
Penal Code.
Senate Bill No. 1437 “redefined ‘malice’ in section 188. Now, to be convicted of
murder, a principal must act with malice aforethought; malice can no longer ‘be imputed
to a person based solely on [his or her] participation in a crime.’ (§ 188, subd. (a)(3).)”
(In re R.G., supra, 35 Cal.App.5th at p. 144.)
The new section 1170.95 permits those convicted of felony murder or murder
under the natural and probable consequences doctrine to petition the sentencing court to
vacate the conviction and to be resentenced on any remaining counts where:
“(1) A complaint, information, or indictment was filed against the petitioner that allowed
the prosecution to proceed under a theory of felony murder or murder under the natural
and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree
or second degree murder following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could be convicted for first degree or second degree murder. [¶]
(3) The petitioner could not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
Once a complete petition is filed, section 1170.95, subdivision (c) sets forth the
trial court’s responsibilities: “The court 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. If the petitioner has requested counsel, the court shall appoint counsel to
represent the petitioner. The prosecutor shall file and serve a response within 60 days of
service of the petition and the petitioner may file and serve a reply within 30 days after
the prosecutor response is served. . . . If the petitioner makes a prima facie showing that
he or she is entitled to relief, the court shall issue an order to show cause.”
B
Section 1170.95, subdivisions (b) and (c) create a three-step process for evaluating
a petitioner’s eligibility for relief. (People v. Verdugo (2020) 44 Cal.App.5th 320, 327-
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330, review granted Mar. 18, 2020, S260493 (Verdugo); accord People v. Torres (2020)
46 Cal.App.5th 1168, 1177, review granted June 24, 2020, S262011.) First, the trial
court determines whether the petition is facially sufficient under section 1170.95,
subdivision (b)(2). (Verdugo, at pp. 327-328.) To do this, the trial court verifies that the
petition contains the information required under section 1170.95, subdivision (b)(1), and
supplies any missing information that can be ascertained from the record of conviction.
(Verdugo, at pp. 328-330.)
If the petition is facially sufficient, then in the second step, the trial court
determines under section 1170.95, subdivision (c) whether the petitioner has made “a
prima facie showing that the petitioner falls within the provisions of this section.”
(§ 1170.95, subd. (c).) The Court of Appeal for the Second District, Division 7, has
described this inquiry as “a preliminary review of statutory eligibility for resentencing, a
concept that is a well-established part of the resentencing process under Propositions 36
and 47.” (Verdugo, supra, 44 Cal.App.5th at p. 329, review granted.) “The court’s role
at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of
law, making all factual inferences in favor of the petitioner.” (Ibid.) In making this
inquiry, the trial court may again examine the record of conviction. (Id. at pp. 322-323,
329-330, 333.)
If the trial court determines that the petitioner is not ineligible for relief as a matter
of law, the evaluation of the petition proceeds to the third step, a “second prima facie
review,” in which “the court must direct the prosecutor to file a response to the petition,
permit the petitioner (through appointed counsel if requested) to file a reply and then
determine, with the benefit of the parties’ briefing and analysis, whether the petitioner
has made a prima facie showing he or she is entitled to relief.” (Verdugo, supra,
44 Cal.App.5th at pp. 328, 330, review granted.) In this second prima facie review, the
trial court must take the petitioner’s factual allegations as true and make a preliminary
assessment whether he or she would be entitled to relief if they were proved. (Id. at
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p. 328; see also People v. Drayton (2020) 47 Cal.App.5th 965, 976 [in the second prima
facie review, “the trial [court] considers whether the petitioner has made a prima facie
showing of entitlement to (rather than eligibility for) relief” (original italics)].)
“If, accepting the facts asserted in the petition as true, the petitioner
would be entitled to relief because he or she has met the requirements of section
1170.95[, subdivision (a)], then the trial court should issue an order to show cause.
[Citation.] Once the trial court issues the order to show cause under section
1170.95[, subdivision (c)], it must then conduct a hearing pursuant to the procedures and
burden of proof set out in section 1170.95, [subdivision] (d) unless the parties waive the
hearing or the petitioner’s entitlement to relief is established as a matter of law by the
record. [Citation.] Notably, following the issuance of an order to show cause, the burden
of proof will shift to the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (People v. Drayton, supra, 47 Cal.App.5th at
pp. 980-981.) Both the prosecution and the defense may rely on the record of conviction
or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).)
C
Here, the trial court denied defendant’s petition after reviewing preliminary
hearing transcripts. But it appears the trial court engaged in fact-finding without
appointing counsel or affording the parties an opportunity for briefing. The trial court
determined the facts presented in the court’s file were sufficient to establish that
defendant “was an actual perpetrator and was a major participant in the crime and acted
with willful indifference to human life . . . .” Given the mixed evidence in the record,
however, the trial court should not have summarily denied her petition. We will remand
the matter for immediate appointment of counsel, followed by briefing and any
subsequent proceedings that may be deemed necessary by the trial court.
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DISPOSITION
The trial court’s postconviction order denying defendant’s resentencing petition
is reversed and the matter is remanded with directions to immediately appoint counsel
for defendant, permit briefing by the parties, and conduct further proceedings that may
be deemed necessary by the trial court consistent with this opinion and section 1170.95.
/S/
MAURO, J.
We concur:
/S/
RAYE, P. J.
/S/
DUARTE, J.
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