People v. DeHuff

Filed 4/23/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B305374

Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. PA028453)

v.

CHRISTOPHER DEHUFF,

Defendant and
Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Michael Terrell, Judge. Reversed and
remanded.
Edward H. Schulman, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Senior
Assistant Attorney General, Eric A. Swenson, Supervising
Deputy Attorney General, Michael D. Butera, Deputy
Attorney General, for Plaintiff and Respondent.
__________________________

Defendant and appellant Christopher DeHuff appeals
from the trial court’s postjudgment order denying his
petition for resentencing pursuant to Penal Code section
1170.951 and Senate Bill No. 1437 (Senate Bill 1437).
Section 1170.95 provides for vacatur of a murder conviction
obtained under either the natural and probable
consequences doctrine or, under certain circumstances, the
felony murder theory of liability. (People v. Martinez (2019)
31 Cal.App.5th 719, 723.)
DeHuff contends the trial court erred by denying his
petition at the second stage of section 1170.95 subdivision (c)
analysis when the court ruled that, although the jury was
presented with two theories of liability—one valid (implied
malice) and the other invalid (second degree felony
murder)—substantial evidence supported a jury finding that
DeHuff committed the killing with malice aforethought, and
he was therefore ineligible for relief as a matter of law.
We reverse and remand to the trial court for further
proceedings.

1 All further statutory references are to the Penal Code
unless otherwise indicated.

2
 FACTS AND PROCEDURAL HISTORY2

The Offenses

“On October 13, 1997, Daniel Sylvers’s white 1991
Dodge Caravan was stolen from Foothill Boulevard in Los
Angeles. Sylvers reported the theft to police.
“On October 14, 1997, at about 9:30 p.m., Los Angeles
Police Officers Douglas Gerst and Ron Stringer were on
patrol on their motorcycles when they saw a white van
driven by appellant straddling lane lines as it traveled west
on Van Nuys Boulevard. The van swerved to the left, into
oncoming traffic, then back to the right. The van then drove
through a red light at about 60 miles per hour. The driver of
a vehicle at that intersection braked sharply to avoid a
collision, coming within one or two car lengths of the van.
“When Officers Gerst and Stringer caught up with the
van, they activated their red lights. Appellant slowed down
to about 25 miles per hour, but did not stop. The officers
activated their sirens, but appellant still did not stop.
Appellant then turned the van into a residential area,
accelerated and swerved toward two oncoming cars, causing
the cars to drive off the road. Appellant drove through a
stop sign and a red light and missed colliding with a car by
inches.

2We take judicial notice of this court’s prior
unpublished opinion in People v. DeHuff (Oct. 14, 1999,
B126967) (DeHuff), from which the facts are drawn.

3
 “After a sharp turn on Lassen, appellant accelerated to
about 70 miles per hour. The van’s headlights were not on.
At the intersection of Lassen and Sepulveda, appellant ran a
red light and collided with a van driven by Linda Wageman.
The van hit the center divider, flew four to five feet in the
air, landed on its left side, slid[] to the curb and began
burning. Officers Gerst and Stringer were able to remove a
passenger, Rebecca Wageman, from the van. Fire prevented
the officers from removing Linda Wageman from the van.
She died. Rebecca suffered a concussion, a fractured rib, and
second and third degree burns.
“Subsequent investigation of the accident scene
determined that appellant was travelling at about 77 miles
per hour at the time of the collision.
“Appellant was not a licensed driver.” (DeHuff, supra,
B126967.)

The Trial

At trial, the jury was instructed on two theories of
murder: (1) second degree implied malice murder; and (2)
second degree felony murder based upon the offense of
evading an officer while driving with willful and wanton
disregard for the safety of persons or property (§ 2800.2,
subd. (a)).
The jury found DeHuff guilty of second degree murder
(§ 187, subd. (a) [count 1]), evading an officer while operating
a motor vehicle with willful disregard (§ 2800.2, subd. (a)

4
[count 3]), unlawful driving or taking of a vehicle (Veh. Code,
§ 10851, subd. (a) [count 4]), receiving stolen property (§ 496,
subd. (a) [count 5]), and misdemeanor unlicensed driver
(Veh. Code, § 12500, subd. (a) [count 7]).3 As to counts 3 and
4, the jury found true the allegations that DeHuff personally
inflicted great bodily injury upon Rebecca Wageman in the
commission of the crimes (§ 12022.7, subd. (a)).
The trial court sentenced DeHuff to 15 years to life in
count 1, plus a consecutive determinate term of 3 years in
count 4 (the high term), plus 3 years for the infliction of
great bodily injury enhancement in count 4. Counts 3 and 5
were stayed pursuant to section 654. DeHuff was sentenced
to six months for the misdemeanor in count 7.

The Appeal

On appeal, DeHuff argued that (1) the trial court
erroneously limited the order in which the jury could
consider the charges against him, and (2) his conviction for
second degree felony murder violated his constitutional
rights to due process of law because that crime was not
defined by statute. (DeHuff, supra, B126967.) The People
argued that the trial court failed to impose certain
mandatory fines and assessments. (Ibid.) Another panel of
this court imposed a parole revocation fine of $10,000
pursuant to section 1202.45, but otherwise affirmed the
judgment. (Ibid.)

3 Counts 2 and 6 were dismissed.

5
Motion to Recall the Remittitur

On March 10, 2005, DeHuff filed a motion to recall
remittitur with the Court of Appeal, based on the Supreme
Court’s decision in People v. Howard (2005) 34 Cal.4th 1129
(Howard). Howard held that “a violation of section 2800.2 is
not, in the abstract, inherently dangerous to human life.
Therefore, the second degree felony-murder rule does not
apply when a killing occurs during a violation of section
2800.2.” (Id. at pp. 1138–1139.) DeHuff argued that
Howard should apply retroactively in his case. The Court of
Appeal denied the motion.

Petition for Resentencing, Opposition & Reply

On January 10, 2019, DeHuff filed a petition for
vacatur of the murder conviction and resentencing under
section 1170.95. He utilized a standardized form, and
indicated that he was convicted of second degree murder
under the natural and probable consequences doctrine or the
second degree felony murder doctrine and could not now be
convicted of murder due to the changes to section 188,
effective January 1, 2019. He requested that counsel be
appointed to him.
The People filed a response on October 15, 2019,
contending that DeHuff was ineligible for relief because the
record of conviction supported the conclusion that he had
been convicted for second degree murder with malice

6
aforethought and could still be convicted of second degree
murder despite the changes to section 188. The People
additionally filed a response arguing that section 1170.95
was unconstitutional.
Defense counsel filed a reply on November 18, 2019.
The reply argued that the prosecution’s interpretation of
implied malice was so broad as to render section 1170.95
meaningless, and asserted that the People sought to avoid
an evidentiary hearing where the burden of proof would fall
to them. The reply argued that, at the stage of the
proceedings then pending before the trial court, the question
was whether DeHuff had made a prima facie showing of
eligibility. If an inquiry into the facts was necessary to
resolve DeHuff’s eligibility, the trial court was obligated to
issue an order to show cause and hold an evidentiary
hearing. The reply also argued that section 1170.95 was
constitutional.

Hearing and Supplemental Briefing

At a hearing on December 16, 2019, the trial court
ruled that section 1170.95 was constitutional, and permitted
further argument on the issue of eligibility.
The prosecution argued that there was “ample evidence
in the record of conviction to support a conclusion that a
reasonable jury could find beyond a reasonable doubt that
the defendant acted with implied malice.” (Italics added.)

7
 Defense counsel responded that this proposed analysis
would “gut” Senate Bill 1437 because the People could claim
implied malice was an available theory of relief in almost
any murder case. At trial in DeHuff’s case, the jury was
instructed on implied malice, but the prosecutor told the jury
it could ignore implied malice and convict on the second
degree felony murder theory. Any comparison of what the
jury would have done with respect to each theory required
an evidentiary hearing. Defense counsel suggested that in
this case he might call an accident reconstructionist.
Counsel asserted that “the burden that the People have that
they need to prove to the court is beyond a reasonable doubt,
so the court will be sitting as the finder of fact for a fact
which was not presented to the jury originally.”
The trial court stated that, in the absence of guidance
from the courts of appeal, in its view the procedure required
the court to first look at the record to determine whether it
could reach a conclusion on the facts already presented. If
the evidence was not sufficient, the parties could present
new evidence. The court believed it would be appropriate to
issue an order to show cause so that the parties could point
to specific portions of the record in support of their
respective positions, and then “take it potentially a step
further after that.”
The prosecution disagreed, arguing that, at this stage,
the trial court had to determine whether DeHuff had made a
prima facie showing of eligibility on the basis of the record of

8
conviction, and that an order to show cause should only be
issued if additional evidence was needed.
Defense counsel reiterated that an order to show cause
should issue whenever there were factual issues to be
determined, whether or not new evidence was needed.
The court decided to conduct further research on the
issue to determine whether it was necessary to issue an
order to show cause, and invited the parties to submit
further briefing.
On January 16, 2020, the People filed a supplemental
opposition. Relying on People v. Lewis (2020) 43 Cal.App.5th
1128 (Lewis), review granted March 18, 2020, S260598, the
People argued that the court could rely on the record of
conviction to make a prima facie determination without
holding an evidentiary hearing. The People asserted that
the trial court’s role was to determine whether the record of
conviction contained sufficient evidence that DeHuff acted
with conscious disregard for life.

Trial Court’s Ruling

On February 7, 2020, the court issued its written
decision, denying DeHuff’s petition for resentencing. The
court ruled that Senate Bill 1437 was constitutional, but
that DeHuff failed to make a prima facie showing and was
not eligible for relief as a matter of law. The court stated
that the question before it was whether DeHuff satisfied the
condition that he “could not be convicted of first or second

9
degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” The court cited to evidence
of DeHuff’s conduct in the record, and concluded that “there
was much more than sufficient evidence to establish that
Defendant acted with conscious disregard for human life and
that he could be found liable for murder under an implied
malice theory.”
DeHuff timely appealed.

DISCUSSION

Section 1170.95

“Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of
murder under a felony murder theory of liability could
petition to have his conviction vacated and be resentenced.”
(People v. Smith (2020) 49 Cal.App.5th 85, 92 (Smith),
review granted July 22, 2020, S262835.) We remain in
agreement with the majority of the courts of appeal as to the
procedure set forth in the statute, which requires that a
petitioner make two separate prima facie showings under
section 1170.95, subdivision (c).4 (See People v. Harris

4The First District of the Court of Appeal, Division
One, disagrees, and has held that a petitioner is entitled to
counsel upon filing a facially sufficient petition for relief, and
that subdivision (c) contemplates a single prima facie review

10
(2021) 60 Cal.App.5th 939, 951, fn. 8 [listing cases favoring
this view].)
In the first stage under subdivision (c), “[t]he 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.” Specifically, the court
determines whether the petitioner has made a prima facie
showing that he has met the requirements set forth in
subdivision (a), including that “‘(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) [t]he 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[,
and] [¶] (3) [t]he petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or
189 made effective January 1, 2019.’ (See § 1170.95, subd.
(c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review
granted Mar. 18, 2020, [S260493 (Verdugo)].)” (Smith,
supra, 49 Cal.App.5th at p. 92.) “If it is clear from the record
of conviction that the petitioner cannot establish eligibility
as a matter of law, the trial court may deny the petition.
(Verdugo, [supra,] at p. 330.) If, however, a determination of
eligibility requires an assessment of the evidence concerning

of the petition. (People v. Cooper (2020) 54 Cal.App.5th 106,
review granted Nov. 10, 2020, S264684.)

11
the commission of the petitioner’s offense, the trial court
must appoint counsel and [order briefing]. (Verdugo,
[supra,] at p. 332; Lewis, supra, 43 Cal.App.5th at p. 1140.)”
(Smith, supra, at p. 92, fn. omitted.)
In the second stage proscribed under section 1170.95,
subdivision (c), the petitioner must make “a prima facie
showing that he or she is entitled to relief.” (§ 1170.95, subd.
(c); People v. York (2020) 54 Cal.App.5th 250, 262–263,
review granted Nov. 18, 2020, S264954.)
“‘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.’ [¶] Once the order to show cause issues, the
court must hold a hearing to determine whether to vacate
the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts.
(§ 1170.95, subd. (d)(1).) If the prosecutor does not stipulate
to vacating the conviction and resentencing the petitioner
(§ 1170.95, subd. (d)(2)), the People have the opportunity to
present new and additional evidence at the hearing to
demonstrate the petitioner is not entitled to resentencing.
(§ 1170.95, subd. (d)(3).) The petitioner also has the
opportunity to present new or additional evidence in support
of the resentencing request. (Ibid.)” (Verdugo, supra, 44
Cal.App.5th at p. 327.)

12
Analysis

This appeal presents the question of what a stage two
analysis under section 1170.95, subdivision (c)—whether
petitioner has made a prima facie showing that he or she is
entitled to relief—entails. While the parties agree that the
trial court erred in finding that DeHuff failed to make a
prima facie showing of entitlement, they disagree as to how
the trial court is to make such an evaluation, and as to the
result that we should reach in DeHuff’s case as a
consequence.
DeHuff argues that he is entitled to resentencing,
because the jury was presented with alternative legal
theories of liability for murder—one valid (implied malice
murder), and one invalid (second degree felony murder). He
reasons that, because there is no special verdict reflecting
which theory the jury based its finding of guilt upon, and the
jury was not instructed that it must unanimously agree
regarding the theory of liability for murder, there is no way
to ascertain whether the jury relied on the invalid theory of
second degree felony murder based on his violation of section
2800.2, subdivision (a). DeHuff contends that the standard
for evaluating “alternative theory error” of this sort is that
the error must be harmless beyond a reasonable doubt as
articulated in Chapman v. California (1967) 386 U.S. 18, 24
(Chapman). He asserts that application of the Chapman
standard in this case “must necessarily lead to the granting
of relief . . . this Court’s [sic] should order the trial court do

13
so without further hearing.” Alternatively, DeHuff urges us
to vacate his second degree murder conviction and remand to
the trial court, giving the prosecution the option to either
retry him on the charge of murder under the valid implied
malice theory, or accept a conviction for evading an officer in
violation of section 2800.2, subdivision (a).
The People agree that DeHuff has made a prima facie
showing that he is entitled to relief under stage two of the
section 1170.95, subdivision (c) inquiry, but argue that the
appropriate remedy is remand to the trial court with
directions to issue an order to show cause and hold a hearing
at which the burden is on the People to prove that DeHuff is
ineligible for relief beyond a reasonable doubt. (§ 1170.95,
subd. (d)(3).) The People contend that at the entitlement
stage of the inquiry under section 1170.95, subdivision (c),
the trial court may only deny the petitioner relief if he is
ineligible as a matter of law, and that the trial court erred in
reviewing the record for substantial evidence that DeHuff
could still be convicted under a valid theory of murder. We
agree with the People.
We begin by rejecting DeHuff’s contention that the
trial court must evaluate his murder conviction as the court
of appeal would evaluate alternative legal theory error, and
find that he is entitled to resentencing unless the error is
harmless beyond a reasonable doubt. DeHuff
misapprehends the procedures set forth in section 1170.95.
This is not a direct appeal. Under section 1170.95, DeHuff is
entitled to resentencing only if he is able to make prima facie

14
showing that he “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)(3).)
The statute does not permit a petitioner to establish
eligibility on the basis of alleged trial error.5 (§ 1170.95,
subd. (a).) As we will discuss, DeHuff has made a prima
facie showing of entitlement because he could no longer be
prosecuted under a second degree felony murder theory, not
because the jury was improperly instructed at trial.6

5In the response, the People cite our decisions in
Smith, supra, 49 Cal.App.5th 85, and People v. Torres (2020)
46 Cal.App.5th 1168, 1178–1180, review granted June 24,
2020, S262011, as holding that a petitioner may base a claim
for 1170.95 relief on a challenge to a special circumstance
finding made prior to People v. Banks (2015) 61 Cal.4th 788
and People v. Clark (2016) 63 Cal.4th 522. Such holdings
might undermine the position that an 1170.95 petition is not
a means to attack a murder conviction on a basis other than
the amendments to sections 188 and 189. However, this is
an inaccurate characterization of our holdings in those cases.
Neither Smith nor Torres holds that a petitioner may
challenge a special circumstance true finding in a section
1170.95 petition. Both cases hold that the trial court may
not rule that a petitioner is ineligible for relief as a matter of
law on the basis of a pre-Banks/Clark special circumstance
finding at the first stage of the analysis under section
1170.95, subdivision (c), which takes place prior to briefing.

6It is doubtful that DeHuff’s jury was, in fact,
improperly instructed. Following the issuance of Howard,
supra, 34 Cal.4th 1129, another panel of this court stated in

15
 With respect to how the trial court should determine
whether a petitioner has made a prima facie showing of
entitlement under section 1170.95, subdivision (c), there is
disagreement between the courts of appeal. In People v.
Drayton (2020) 47 Cal.App.5th 965, at pages 980 through
981 (Drayton), the Sixth District of the Court of Appeal
described the procedure as comporting with that of a habeas
corpus proceeding: “[W]hen assessing the prima facie
showing, the trial court should assume all facts stated in the
section 1170.95 petition are true. [Citation.] The trial court
should not evaluate the credibility of the petition’s
assertions, but it need not credit factual assertions that are
untrue as a matter of law—for example, a petitioner’s
assertion that a particular conviction is eligible for relief
where the crime is not listed in subdivision (a) of section

its order denying DeHuff’s motion to recall the remittitur:
“We question whether Howard has any application to
appellant’s case. The Supreme Court’s decision in Howard
was based on a 1998 amendment to section 2800.2, which
broadened the scope of that section. The Court held that the
broadened version of section 2800.2 was not an inherently
dangerous felony because it could be violated in the abstract
without endangering human life. Even assuming that
Howard should be applied retroactively, it could only be so
applied to crimes committed after the effective date of the
amendment. Appellant committed his violation of section
2800.2 in 1997, before the amendment was passed, and was
tried in 1998, before the amendment’s effective date of
January 1, 1999. (Veh. Code, § 2800.2; Stats.1998, c. 472
(A.B.2066); Cal. Const., Art. IV, § 8.)”

16
1170.95 as eligible for resentencing. Just as in habeas
corpus, if the record ‘contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.’
[Citation.] However, this authority to make determinations
without conducting an evidentiary hearing pursuant to
section 1170.95, subd. (d) 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). [¶] 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(a), then the trial court should issue an order to show
cause. (§ 1170.95(c).)”
The majority of the courts of appeal to consider the
question have agreed with Drayton. (People v. Tarkington
(2020) 49 Cal.App.5th 892, 898, review granted Aug. 12,
2020, S263219; People v. Nguyen (2020) 53 Cal.App.5th
1154, 1165–1166; People v. Perez (2020) 54 Cal.App.5th 896,
903–904, review granted Dec. 9, 2020, S265254; People v.
Duchine (2021) 60 Cal.App.5th 798, 813 (Duchine); People v.
Harris (2021) 60 Cal.App.5th 939, 958; People v. Rivera
(2021) 62 Cal.App.5th 217; People v. Secrease (Apr. 19, 2021,
A158342) ___ Cal.App.5th ___ [2021 WL 1538008].)
People v. Garcia (2020) 57 Cal.App.5th 100, review
granted February 10, 2020, S265692 (Garcia) expresses a

17
contrary, minority view. In Garcia, the Court of Appeal,
Second Appellate District, Division Six took the same
position as the trial court in the present case, and held that,
when determining entitlement in stage two, the trial court
should determine whether substantial evidence supports the
conclusion that the petitioner could still be convicted of
murder following the amendments to sections 188 and 189.
The Garcia court explained: “Section 1170.95 clearly and
unambiguously requires a prima facie showing that the
petitioner ‘could not be convicted of . . . second degree
murder because of changes to Section 188 . . . .’ (Id., subd.
(a)(3), italics added.) ‘Could’ is ‘used . . . as an alternative to
can suggesting less force or certainty.’ (Webster’s 3d New
Internat. Dict. (1981) p. 517.) In view of the evidence that
appellant directed [his co-defendant] to ‘stick’ the victim
with a knife, as a matter of law appellant could be convicted
of second degree murder as a direct aider and abettor despite
the changes to section 188.” (Garcia, supra, at p. 114.) The
court continued, “It is also possible that the jury believed
appellant made this statement but intended only to wound
[the victim], not kill him. But we should not speculate what
the jury might have believed. The jury neither expressly nor
impliedly found that appellant did not harbor the specific
intent to kill when he allegedly told [his codefendant] to stab
[the victim]. In the absence of such a finding, appellant
could be convicted of murder as a direct aider and abettor
because a reasonable trier of fact could find beyond a
reasonable doubt that he said, ‘Stick him. Stick him,’ and

18
that he intended to kill [the victim] when he made this
statement.” (Id. at pp. 114–115.) In the Garcia court’s view,
it was not necessary to “resort . . . to a ‘weighing of facts and
evidence’ to reach this conclusion. If the jury had been
instructed on direct aiding and abetting and had based its
murder conviction on this theory, the conviction would have
been upheld on appeal because it would have been supported
by substantial evidence. [Citation.] . . . No weighing of the
evidence is involved in applying the substantial evidence
test.” (Id. at p. 115.) The Garcia court concluded, “There is
a gatekeeping function to be performed here. . . . [¶] The
gate in the instant matter should remain closed. The
ameliorative statute was not designed to benefit a gang
member who participated in a brutal gang assault upon a
helpless victim ‘green-lighted’ by the gang and who,
according to the trial testimony of percipient witnesses,
directed the actual killer to stab the victim.” (Id. at p. 117.)
It is tempting in cases where the trial record includes
extensive inculpatory evidence supporting the convictions for
horrific crimes to agree with the procedure sanctioned in
Garcia, and we have empathy for the trial courts that
anticipate an evidentiary hearing will have little chance of
leading to a different result. However, we must honor the
Legislature’s words and intent. In doing so, we conclude
that Drayton expresses the better view of the statutory
process and requirements.7

7The People state that this court authored People v.
Duke (2020) 55 Cal.App.5th 113 (Duke), a case upon which

19
 Recently, the Court of Appeal, First District, Division
Two, discussed the differences between Drayton and Garcia
in depth, in Duchine, supra, 60 Cal.App.5th at page 813,
footnote omitted: “Drayton ascribes a meaning to the third
element of section 1170.95, subdivision (a) different from
that espoused in Garcia. If a defendant asserts he lacked
the requisite intent or did not act in a manner that would
make him liable under still-valid murder theories, unless the
record of conviction refutes those assertions as a matter of
law, the defendant has met his prima facie burden.
(Drayton, supra, 47 Cal.App.5th at p. 980.) In that
circumstance, the trial court should take him at his word
and not engage in factfinding on the issues ‘without first
issuing an order to show cause and allowing the parties to
present evidence at a hearing.’ (Id. at pp. 981–982 [where
petitioner denied he was a major participant in the felony or
acted with reckless indifference to human life and record did
not conclusively refute these assertions, trial court should
not have decided these factual issues without issuing order
to show cause and allowing parties to present evidence at
hearing].) Implicit in Drayton’s holding is that the third
element of section 1170.95, subdivision (a) does not require
an absence of sufficient evidence, on the record of conviction,
to support a hypothetical finding that the defendant is guilty
of murder under a currently valid theory.”

Garcia heavily relied for its reasoning. In fact, Duke was
authored by Division One of the Second District of the Court
Appeal.

20
 The Duchine court concluded: “In view of the
ameliorative purposes of Senate Bill 1437, the Legislature’s
stated concerns about proportionality, fairness and excessive
punishment, and its adoption of a trial court proceeding at
which new evidence may be submitted and a criminal trial
burden of proof beyond a reasonable doubt is applied, we
cannot agree with cases like Garcia that interpret section
1170.95 to allow the trial court at the prima facie stage to
resolve disputed facts or to answer only the question
whether the existing record precludes a conviction on a
murder theory that was never tried. By allowing new
evidence and providing for an evidentiary hearing, the
Legislature plainly intended that the issues concerning
whether the defendant was guilty under theories of murder
not previously or necessarily decided would be resolved
anew, through a factfinding process affording a degree of due
process to the petitioner.
“The standard adopted by Garcia, in which the trial
court focuses on the state of the existing record and applies
an appellate review substantial evidence standard, makes
little sense in this context. If it had intended the process to
be substantial evidence review of the existing record, the
Legislature could simply have provided an appellate remedy,
such as direct appeal for nonfinal convictions and habeas
corpus for final convictions. This is not what it did. Instead,
the Legislature imposed the burden of proof on the
prosecution, at the resentencing hearing. The interpretation
adopted by Garcia would mean the prosecution’s burden

21
would be to prove ‘beyond a reasonable doubt’ that
‘substantial evidence’ exists, which by itself borders on
incomprehensible. The court would then employ these two
widely divergent standards in a combined (and backwards)
fashion to determine, as Garcia suggests, whether a jury
hypothetically could have found a defendant guilty under a
permissible theory had it addressed the issue. In short, the
idea that the prosecution must prove beyond a reasonable
doubt that there is substantial evidence in a prior record to
support a hypothetical finding of guilt on a theory of murder
that may never have been presented to a jury is beyond that
border.” (Duchine, supra, 60 Cal.App.5th at pp. 813–814, fn.
omitted.)
We agree with Duchine and its reasoning. In this case,
DeHuff was prosecuted on two theories of liability—implied
malice and second degree felony murder based on evading an
officer by driving with reckless disregard for the safety of
persons or property (§ 2800.2, subd. (a))—and there is no
way to ascertain from the record upon which theory the jury
based its finding of guilt. Following the amendments to
section 188, the statute now provides: “Except 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 her participation in a crime.” (§ 188, subd.
(a)(3).) The offense of evading an officer while driving with
reckless disregard for the safety of persons or property
(§ 2800.2, subd. (a)), is not among the enumerated crimes in

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section 189, subdivision (a) that may still serve as a basis for
a felony murder conviction under certain circumstances.8
Thus, DeHuff could not be convicted of second degree felony
murder based on a violation of section 2800.2, subdivision (a)
as a result of these amendments.
There is substantial evidence in the record to support a
finding that DeHuff committed second degree murder on an

8 Section 189, subdivision (a) provides: “All murder
that is perpetrated by means of a destructive device or
explosive, a weapon of mass destruction, knowing use of
ammunition designed primarily to penetrate metal or armor,
poison, lying in wait, torture, or by any other kind of willful,
deliberate, and premeditated killing, or that is committed in
the perpetration of, or attempt to perpetrate, arson, rape,
carjacking, robbery, burglary, mayhem, kidnapping, train
wrecking, or any act punishable under Section 206, 286, 287,
288, or 289, or former Section 288a, or murder that is
perpetrated by means of discharging a firearm from a motor
vehicle, intentionally at another person outside of the vehicle
with the intent to inflict death, is murder of the first degree.”
Section 189, subdivision (e) limits such liability to certain
circumstances: “A participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a) 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.”

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implied malice theory, but that is not sufficient to preclude
DeHuff from relief as a matter of law. We therefore reverse
and remand to the trial court to issue an order to show cause
and hold a hearing at which the prosecution has the burden
of establishing that DeHuff is ineligible for relief beyond a
reasonable doubt. (§ 1170.95, subd. (d)(3).)

DISPOSITION

We reverse the trial court’s order denying the petition
and remand with directions to 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 DeHuff’s murder conviction and recall his
sentence and resentence him.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.

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