Filed 5/13/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B304567
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. 319016,
v. 319060)
PHILLIP CHARLES
FORTMAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James D. Otto, Judge. Reversed and remanded.
Johanna Pirko, 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, Assistant
Attorney General, Scott A. Taryle and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
******
When determining whether to vacate a defendant’s murder
conviction that may rest on a theory of vicarious liability later
invalidated by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB
1437), the conviction must stand if the prosecution proves,
beyond a reasonable doubt, that the conviction is valid under a
still-viable theory of liability. (Pen. Code, § 1170.95, subds. (d)(3)
& (a).)1 Does this require the prosecution to convince the trial
court hearing the petition to conclude that it would convict
defendant on a still-viable theory, or merely to convince that
court that a reasonable jury could convict defendant on a still-
viable theory? The Court of Appeal is split, with a majority
following the former rule and a lone voice following the latter.
(Compare People v. Lopez (2020) 56 Cal.App.5th 936, review
granted Feb. 10, 2021, S265974 (Lopez); People v. Rodriguez
(2020) 58 Cal.App.5th 227, review granted Mar. 10, 2021,
S266652 (Rodriguez); People v. Clements (2021) 60 Cal.App.5th
597 (Clements), review granted Apr. 28, 2021, S267624; People v.
Harris (2021) 60 Cal.App.5th 939 (Harris), review granted Apr.
28, 2021, S267802 with People v. Duke (2020) 55 Cal.App.5th 113,
review granted Jan. 13, 2021, S265309 (Duke).) Our Supreme
Court will resolve this split in Duke, but we join the growing
chorus that requires an independent finding by the trial court,
and we publish because our analysis adds a new harmony.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Because the trial court in this case did not make an independent
finding, we reverse and remand for a new hearing.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The underlying crime
On the last Saturday in January 1966, Phillip Fortman
(defendant) and Tim Hartman (Hartman) used the $4 they had
earned that day soliciting contributions at the Purple Heart
Veteran’s Service to buy themselves cigarettes and cheap wine.
While drunk, they saw an elderly man on the street and decided
to “roll him” (that is, to take what money he had). They viciously
attacked him by repeatedly punching and kicking him, and then
turned out his pockets and discovered he had no money. The
man died from his injuries a few days later.
B. Charging, conviction and appeal
The People charged defendant and Hartman with (1)
murder (§ 187), and (2) attempted second degree robbery (§ 211).
The jury was instructed that each defendant could be liable for
murder (1) as a person who acted with malice (that is, as the
actual killer or a person who, with intent to kill, aided and
abetted the actual killer), or (2) on a felony-murder theory (that
is, on the theory that they jointly committed the felony of robbery
and thus were jointly liable for the murder resulting from that
robbery), or (3) on a natural and probable consequences theory
(that is, on the theory that they aided and abetted one another to
commit robbery and are jointly liable for a murder that is the
“ordinary and probable effect of the pursuit of” the robbery). The
jury convicted defendant (and Hartman) of first degree murder
and attempted second degree robbery. The court sentenced
defendant to life in prison for the murder and imposed a
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suspended sentence on the attempted robbery. We affirmed
defendant’s convictions and sentence in a published decision.
(People v. Fortman (1967) 257 Cal.App.2d 45.)
II. Procedural Background
On January 14, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that his murder conviction would be invalid under
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” The People opposed the petition on the ground
that (1) section 1170.95 is unconstitutional, and (2) defendant is
ineligible for relief as a matter of law because he (a) was the
actual killer, (b) directly, and with the intent to kill, aided and
abetted the actual killer, or (c) was a major participant who acted
with reckless indifference to human life. After receipt of
defendant’s reply, the court convened a “hearing” at which it
ruled that defendant was “ineligible” for relief under section
1170.95 because, “based on the record of conviction,” defendant
“could have been very well . . . convicted under [the] theories of
murder that[ have] continued to exist after the passage of SB
1437.”2
2 Although the trial court hedged on whether the purpose of
the hearing was to determine whether to issue an order to show
cause (OSC) or instead to assess whether defendant was eligible
for resentencing following the entry of an OSC, the court’s
ultimate finding of defendant’s ineligibility for relief indicates
that it was the latter. (Accord, People v. Gentile (2020) 10 Cal.5th
830, 853 (Gentile) [purpose of post-OSC hearing is to “determine
4
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the court erred in denying his
petition for relief under section 1170.95 because the standard it
applied—looking to whether a jury could still convict him on a
viable theory—was incorrect. This argument presents an issue of
statutory construction, which we review independently.
(Christensen v. Lightbourne (2019) 7 Cal.5th 761, 771.)
With one narrow exception,3 SB 1437 effectively eliminates
murder convictions premised on any theory of vicarious
liability—that is, any theory by which a person can be convicted
of murder for a killing committed by someone else (such as the
felony-murder theory or the natural and probable consequences
theory4)—unless the People also prove that the non-killer
defendant personally acted with the intent to kill or was a major
whether to vacate the murder conviction” or whether the
petitioner is “ineligible” for such relief].)
3 A murder conviction premised on vicarious liability is still
permissible if the “victim is a peace officer . . . killed while in the
course of [his or her] duties” and if “the defendant knew or
reasonably should have known” those facts. (§ 189, subd. (f).)
4 Under the felony murder theory, a defendant who
participates in a felony with others may be held liable for a
homicide committed by another “while committing [that felony]”
“without the necessity of further examining the [non-killer]
defendant’s mental state.” (People v. Chun (2009) 45 Cal.4th
1172, 1182). Under the natural and probable consequences
theory, a defendant who aids and abets a felony may be held
liable for a homicide committed by another if that homicide was
“a natural and probable consequence” of the felony he aided and
abetted. (People v. Hardy (2018) 5 Cal.5th 56, 92.)
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participant who acted with reckless disregard to human life. (§§
188, 189, subds. (e), (f), 1170.95.) SB 1437 effectuates this
change prospectively, and does so by modifying the statutes
defining murder. (§§ 188, 189, subds. (e), (f); Clements, supra, 60
Cal.App.5th at p. 610.) SB 1437 also effectuates this change
retroactively, and does so by creating an “exclusive” statutory
procedure—set forth in section 1170.95—by which persons may
seek to invalidate prior murder convictions premised on a theory
of vicarious liability. (§ 1170.95; Gentile, supra, 10 Cal.5th at pp.
852-853; Clements, at p. 611.)
Section 1170.95 sets forth a two-step procedure. In the first
step, the petitioner seeking to vacate a murder conviction must
make a “prima facie showing” of entitlement to relief by
establishing that (1) the conviction was based on a charging
document that “allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences theory,” (2) the petitioner was convicted of first or
second degree murder, and (3) the petitioner “could not be
convicted of first or second degree murder because of the
changes” made by SB 1437 to the statutes defining murder. (§
1170.95, subds. (a), (c).) If this first step is met, the second step
is for the trial court to issue an OSC and convene a hearing “to
determine whether the petitioner is entitled to relief” under
section 1170.95; at that hearing, the prosecution bears “the
burden” of “prov[ing], beyond a reasonable doubt, that the
petitioner is ineligible” for section 1170.95 relief. (Id., subds.
(d)(1) & (d)(3).) At that hearing, the prosecutor and petitioner
may rely on “the record of conviction or offer new or additional
evidence . . . .” (Id., subd. (d)(3).)
6
This appeal presents the question: What showing must the
prosecution make in order to “prove, beyond a reasonable doubt,
that the petitioner is ineligible” for relief under section 1170.95,
subdivision (d)(3)?
The plain text of section 1170.95 does not expressly define
when a petitioner is “ineligible” for section 1170.95 relief under
subdivision (d)(3) and implicitly offers two possible answers.
On the one hand, “ineligibility” for relief under subdivision
(d)(3) could borrow from subdivision (a)’s requirements for when
a petitioner has made a prima facie showing of eligibility for
relief. Because a prima facie showing under subdivision (a) turns
in part on whether the petitioner “could not be convicted” of
murder after SB 1437, ineligibility for relief under subdivision
(d)(3) would mean the opposite—namely, that the petitioner
could be convicted of murder after SB 1437. And because this
standard looks a lot like the standard appellate courts use in
assessing whether a conviction is supported by substantial
evidence (e.g., People v. Ochoa (1993) 6 Cal.4th 1199, 1206
[looking to whether “a rational trier of fact could find the
defendant guilty beyond a reasonable doubt”], italics added),
subdivision (d)(3) could be read to adopt a “substantial evidence”-
like burden that requires the prosecution merely to prove that a
rational jury could still find the defendant guilty of murder on a
still-valid theory of liability. This reading does not entirely align
with “substantial evidence” review, however, because unlike an
appellate court conducting substantial evidence review of a
conviction, the trial court examining the evidence under
subdivision (d)(3) (1) is not required to view the evidence in light
most favorable to the murder conviction (cf. Ochoa, at p. 1206),
and (2) may consider “new or additional evidence” (cf. People v.
7
Hubbard (2016) 63 Cal.4th 378, 392). This is the reading adopted
by Duke, supra, 55 Cal.App.5th at p. 123.
On the other hand, subdivision (d)(3) tasks the prosecution
with proving the petitioner’s “ineligibility” for section 1170.95
relief “beyond a reasonable doubt.” Because the “beyond a
reasonable doubt” language refers to a well-established standard
of proof (see Evid. Code, § 115), and because “‘[t]he function of a
standard of proof . . . is to ‘instruct the factfinder concerning the
degree of confidence our society thinks he [or she] should have in
the correctness of the factual conclusions for a particular type of
adjudication’” (Addington v. Texas (1979) 441 U.S. 418, 423,
quoting In re Winship (1970) 397 U.S. 358, 370 (conc. opn. of
Harlan, J.), italics added), section 1170.95 could be read to assign
the trial court hearing the section 1170.95 petition the task of
serving as an independent factfinder determining whether, in its
view, the evidence set forth in the record of conviction as well as
any other evidence the parties elect to present establishes,
beyond a reasonable doubt, the petitioner’s guilt of murder on a
still-valid theory. This is the reading adopted by Lopez, supra, 56
Cal.App.5th at p. 951, Rodriguez, supra, 58 Cal.App.5th at pp.
230-231, Clements, supra, 60 Cal.App.5th at p. 603, and Harris,
supra, 60 Cal.App.5th at pp. 952-953.
Because the plain text of section 1170.95 is ambiguous on
this point, we look to the purpose animating section 1170.95 as
well as to other canons of statutory construction. (People v.
Cornett (2012) 53 Cal.4th 1261, 1265.) In our view, these sources
convince us that subdivision (d)(3) turns a petitioner’s
entitlement to relief on whether the trial court itself finds,
beyond a reasonable doubt, that defendant is guilty of murder on
a still-valid theory of liability. They do so for two reasons.
8
First, this is the outcome most consistent with our
Legislature’s stated purpose to extend SB 1437’s new rules in an
equitable fashion both prospectively and retroactively. In the
introductory legislative “findings” of SB 1437, our Legislature
declared that its purpose was to more closely align the
punishment for murder with one’s “own level of individual
culpability.” (Stats. 2018, ch. 1015, § 1(d), (e); Gentile, supra, 10
Cal.5th at pp. 845-846 [so noting].) What is more, by
simultaneously amending the statutes defining murder and
creating the procedural mechanism in section 1170.95 to revisit
already existing murder convictions, our Legislature confirmed
that this purpose was designed to benefit “both past and future
offenders.” (Rodriguez, supra, 58 Cal.App.5th at p. 240.) Where,
as here, there is an avowed purpose to grant ameliorative relief
“prospective[ly] and retrospective[ly],” the best way to effectuate
that purpose is to give the requirements for all relief a “parallel
construction.” (People v. Frierson (2018) 4 Cal.5th 225, 236
(Frierson).) In Frierson, for example, our Supreme Court held
that a voter-enacted statute that required the People to prove
eligibility for a “third strike” sentence beyond a reasonable doubt
on a prospective basis should be construed to require the People
to prove past offenders’ ineligibility by the same standard of
proof—namely, beyond a reasonable doubt. (Id. at pp. 230-239.)
This principle of parallel construction here leads
ineluctably to the conclusion that the People must convince the
trial court, as an independent trier of fact, that the petitioner is
guilty of murder on a still-valid theory beyond a reasonable
doubt. If the People may obtain a murder conviction under the
amended statutes in the future only by proving beyond a
reasonable doubt that the defendant was the actual killer, acted
9
with the intent to kill or was a major participant acting with
reckless indifference to human life, then section 1170.95 should
be read to require the People to preserve a past murder
conviction by proving any of those same facts to the trier of fact
beyond a reasonable doubt. Under this reading, the sole
difference between the two showings is that the showing to
obtain future convictions must be made to a jury, while the
showing to preserve past convictions may be made to the court;
however, that difference is solely and simply because the
constitutional right to a jury trial does not attach in the latter
situation, where what is at issue is a possible entitlement to a
reduced sentence rather than the initial imposition of criminal
liability. (People v. Perez (2018) 4 Cal.5th 1055, 1063-1064;
People v. Anthony (2019) 32 Cal.App.5th 1102, 1156-1157.)
This principle also illustrates why the contrary reading of
section 1170.95 adopted by Duke is inconsistent with the statute’s
purpose. If, as Duke holds, the People may preserve a past
murder conviction merely by showing that a reasonable jury
could find the petitioner guilty on a still-valid theory, parallelism
would dictate that the People should be able to obtain a murder
conviction in the future by convincing a jury beyond a reasonable
doubt that it would be rational for some other jury to find that
the defendant was the actual killer, acted with the intent to kill
or was a major participant acting with reckless indifference to
human life—even if that jury itself would not so find. This
reading would disserve our Legislature’s stated purpose of better
aligning the punishment for murder with individual culpability
both prospectively and retroactively. Although following Duke
would disserve that purpose only retroactively, it disserves it just
the same.
10
Second, construing section 1170.95 to mandate that the
trial court independently find the defendant guilty on a still-valid
theory avoids what we view as the “anomalous or absurd
consequences” flowing from the contrary reading. (Horwich v.
Superior Court (1999) 21 Cal.4th 272, 280.) As noted above, the
contrary reading would require the prosecution to prove beyond a
reasonable doubt that a rational jury—considering the evidence
presented to the prior jury as well as any “new or additional
evidence” no jury has ever considered—could still find the
defendant guilty on a still-valid theory beyond a reasonable
doubt. This standard is a heretofore unseen, Frankenstein-like
construct that cobbles together bits and pieces from the
substantial evidence appellate review standard as well as the
beyond a reasonable doubt standard of proof. While it is
certainly within our Legislature’s purview to breathe life into
such a beast, we are reluctant to do so in the “[a]bsen[ce of] a
clear expression of legislative intent” (e.g., People v. George (1984)
157 Cal.App.3d 1053, 1058-1059), and the circuitous statutory
hopscotch supporting this construction does not in our view
constitute such a clear expression.
For these reasons, we join with Lopez, Rodriguez, Clements
and Harris in holding that, at the hearing contemplated by
section 1170.95, subdivision (d), the People are required to prove
to the trial court beyond a reasonable doubt that the petitioner is
guilty of murder on a theory of murder valid after SB 1437’s
enactment. Because the trial court in this case did not apply this
standard, we reverse its order and remand for a new hearing at
which the People may seek to prove to the trial court beyond a
reasonable doubt that defendant was the actual killer, aided and
11
abetted the actual killer with the intent to kill, or was a major
participant who acted in reckless disregard for human life.
DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed, and the matter remanded for a new evidentiary hearing
pursuant to section 1170.95, subdivision (d).
CERTIFIED FOR PUBLICATION.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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