Filed 5/27/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080005
Plaintiff and Respondent,
(Super. Ct. No. CR19002757)
v.
FRANK JOSEPH ALEO, OPINION
Defendant and Appellant.
APPEAL from an order of the Superior Court of Stanislaus County. Joseph R.
Distaso, Judge.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Eric
Christoffersen, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
A jury convicted defendant Frank Joseph Aleo of first degree murder in 1983 after
he drove three companions to and from an armed robbery and burglary. After the
passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), Aleo filed a
Penal Code section 1170.95 petition for resentencing, and the superior court appointed
the public defender’s office to represent him. (Undesignated statutory references are to
the Penal Code.) The People responded to Aleo’s petition, contending Aleo was a major
participant in the underlying crimes and he acted with reckless indifference to human life.
Defense counsel did not file a reply, but Aleo filed one on his own behalf, arguing he did
not act with reckless indifference to human life. At the hearing on the petition, defense
counsel conceded Aleo did not make a prima facie case and submitted that he was a
major participant. The court denied the petition without issuing an order to show cause,
concluding Aleo was a major participant. Aleo now challenges the denial of his petition,
and the People concede remand is necessary for the court to issue a show cause order and
to hold an evidentiary hearing.
We agree with the parties, reverse the court’s order denying the petition, and
remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Aleo and Frank Lee Ford were charged with the murder of Dixon Flinders on
June 6, 1982, during the commission of a burglary and robbery (count I). The
information alleged Aleo was armed with a firearm during the commission of the murder
in violation of section 12022, subdivision (a) and that Ford personally used a firearm in
violation of section 12022.5. Both Aleo and Ford were also charged with feloniously and
by means of force and fear taking personal property from the person, possession, and
immediate presence of Sharon Pitts (count II). The information alleged Aleo was armed
with a firearm during the commission of the robbery charged in count II in violation of
section 12022, subdivision (a), and Ford personally used a firearm during the commission
of the robbery in violation of section 12022.5. Finally, Aleo and Ford were charged with
burglarizing Flinders’s and Pitts’s house (count III). Again, the information alleged Aleo
was armed with a firearm during the commission of the burglary and Ford personally
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used a firearm during the commission in violation of section 12022.5. A jury convicted
Aleo and Ford of the charged counts and found true the additional allegations.1
In 2019, Aleo submitted a petition for resentencing pursuant to section 1170.95,
using a form prepared by Re:Store Justice, a cosponsor of Senate Bill 1437. He checked
boxes stating a charging document had been filed against him allowing the prosecution to
proceed under a felony-murder theory or the natural and probable consequences doctrine;
at trial, he was convicted of first or second degree murder under a felony-murder theory
or the natural and probable consequences doctrine; and he could not now be convicted of
murder in light of changes made to sections 188 and 189, effective January 1, 2019
(pursuant to Senate Bill 1437). He also checked a box indicating he was convicted of
first degree murder but could not now be convicted because he was not the actual killer,
he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or
assist the actual killer in the commission of murder in the first degree, and he was not a
major participant in the felony or did not act with reckless indifference to human life
during the course of the crime or felony. He also checked a box stating, “I request that
this court appoint counsel for me during this re-sentencing process.” The court
subsequently appointed the public defender to represent Aleo.
The People responded to the petition, arguing Aleo was not entitled to relief
because the facts of the case established Aleo was a major participant in the robbery and
burglary who acted with reckless indifference to human life. They also argued Senate
Bill 1437 is unconstitutional. They did not challenge Aleo’s assertion the charges against
him allowed the prosecution to proceed under a felony-murder theory or the natural and
probable consequences doctrine. They also did not argue Aleo was categorically
ineligible for relief on any other basis, noting that a person other than Aleo was the actual
killer.
1We grant
Aleo’s request that we take judicial notice of our prior unpublished opinion in
this matter pursuant to Evidence Code sections 452, subdivision (a), and 459, subdivision (a).
3.
Aleo filed a reply in propria persona in which he denied he acted with reckless
indifference to human life or that he, with the intent to kill, aided, abetted, counseled
commanded, induced, solicited, requested or assisted” the actual killer in the commission
of the murder. Aleo noted the People did not argue he was the actual killer. He asserted
the People’s response suggested he “had no participation in the murder and was 20 to 25
feet away when the actual killer committed the murder.” He again requested counsel be
appointed for him.
The court held a hearing on Aleo’s section 1170.95 petition for resentencing. At
the hearing, appointed defense counsel conceded, “[I]t appears that under the new law,
they do not meet the prima facie case, and we submit that they are major participants.”
The court then denied the petition for resentencing, stating it found Aleo “was a major
participant in the crime” and “therefore, not eligible for resentencing.”
DISCUSSION
Aleo challenges the denial of his petition for resentencing and the parties agree, as
do we, the matter must be remanded for the court to issue an order to show cause and to
hold an evidentiary hearing.
1. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[s] 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).) It amends section
188, which defines malice, and section 189, which defines the degrees of murder to
address felony-murder liability, and it adds section 1170.95, providing a procedure by
which those convicted of murder can seek retroactive relief if the changes in the law
would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
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Accordingly, section 188 now provides that, “[e]xcept 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), italics added.) The change reflects the
Legislature’s intent that “[a] person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, “All murder … which 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, 288,
288a, or 289, or any murder which 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.” Senate Bill 1437 amended section 189, in
part, by adding subdivision (e), which provides:
“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.”
Newly enacted section 1170.95 permits those “convicted of felony murder or
murder under a natural and probable consequences theory [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts ….” (Id., subd. (a).) An offender may file a
petition under section 1170.95 where all three of the following conditions are met:
“(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
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be convicted for first degree or second degree murder[;] [¶] [and] (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)(1)–(3).)
A trial court receiving a petition under section 1170.95 “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.” (§ 1170.95, subd. (c).) If the petitioner has made such a
showing, the trial court “shall issue an order to show cause.” (Ibid.) The trial court must
then hold a hearing “to determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the same manner as
if the petitioner had not been previously been [sic] sentenced, provided that the new
sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).)
2. Analysis
Aleo argues the court erred in dismissing his petition for resentencing instead of
issuing an order to show cause because it should have accepted as true his allegations
stating a prima facie case for relief. He argues, by concluding he was a major participant
in the crime, the trial court engaged in a factfinding process that was not permitted unless
and until an order to show cause issued. He also contends the court did not conclude he
acted with reckless indifference to human life as necessary to render him ineligible for
relief. He further asserts his counsel’s concession at the hearing that he was a major
participant violated his Sixth Amendment rights and resulted in structural error or
prejudicial ineffective assistance. He contends he is entitled to a remand for a hearing on
the merits of his petition because his counsel conceded his ineligibility for resentencing
without his consent. Alternatively, he argues the case should be remanded based upon
ineffective assistance of counsel. The People concede Aleo made a prima facie showing
of eligibility for relief, the record does not indisputably establish his ineligibility, and the
case should be remanded for the trial court to issue an order to show cause and to hold a
hearing. They further argue, at this hearing, the People will bear the burden of proving,
beyond a reasonable doubt, that Aleo was a major participant who acted with reckless
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indifference towards human life. They assert it is unnecessary to consider Aleo’s
ineffective assistance of counsel claim. We agree with the parties Aleo established a
prima facie showing he falls within section 1170.95’s provisions and is entitled to a
remand for the court to issue an order to show cause and hold an evidentiary hearing at
which the prosecution will bear the burden of proving, beyond a reasonable doubt, that
Aleo is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
In so holding, we note there is currently disagreement among the Courts of Appeal
regarding how the court should determine whether a petitioner has made the prima facie
showing required under section 1170.95, subdivision (c) and what the petitioner’s prima
facie burden is under section 1170.95, subdivision (a)(3) to show “‘he could not be
convicted of first or second degree murder because of changes to Section 188 or 189’”
enacted by Senate Bill 1437.2 (People v. DeHuff (2021) 63 Cal.App.5th 428, 438–442
(DeHuff); People v. Rivera (2021) 62 Cal.App.5th 217, 229–230; People v. Duchine
(2021) 60 Cal.App.5th 798, 811–814 (Duchine).) In People v. Drayton (2020) 47
Cal.App.5th 965 (Drayton), the Sixth District Court of Appeal described the procedure
for assessing whether a prima facie showing has been made 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 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, subdivision (d) is limited
2Whether a trial court may consider the record of conviction in determining if a prima
facie showing of eligibility of relief under section 1170.95 has been made by a petitioner is
currently pending before the California Supreme Court in People v. Lewis (2020) 43 Cal.App.5th
1128, review granted March 18, 2020, S260598.
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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.” (Drayton, supra, at pp. 980–981; accord, Duchine, supra, at pp.
811–812.)
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; Duchine, supra, 60 Cal.App.5th at pp. 813–815; People v. Harris (2021) 60
Cal.App.5th 939, 958, review granted Apr. 28, 2021, S267802; People v. Rivera, supra,
62 Cal.App.5th at p. 230; DeHuff, supra, 63 Cal.App.5th at pp. 439–442.)
On the other hand, in People v. Garcia (2020) 57 Cal.App.5th 100, review granted
February 10, 2021, S265692 (Garcia), Division Six of the Second District Court of
Appeal held that when determining if a petitioner has made a prima facie showing of
eligibility for relief, the trial court should determine whether substantial evidence
supports the conclusion the petitioner could still be convicted of murder following the
amendments to sections 188 and 189. (Garcia, at pp. 114–115, 118; DeHuff, supra, 63
Cal.App.5th at p. 439.) Put differently, the Garcia court “interpreted section 1170.95’s
eligibility requirement in subdivision (a)(3) that the petitioner make a prima facie
showing he or she ‘could not be convicted of first or second degree murder because of
changes’ wrought by Senate Bill 1437 as importing a ‘substantial evidence’ standard and
as requiring a court to deny a petition if it concludes substantial evidence exists in the
record on which a jury could have based a murder conviction on a valid theory had it
been instructed on that theory.” (Duchine, supra, 60 Cal.App.5th at p. 812; accord,
Garcia, supra, at pp. 116–118.)
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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.)” (Garcia, supra, 57 Cal.App.5th at p.
114, review granted.) Thus, while under Drayton a petitioner who “asserts he [or she]
lacked the requisite intent or did not act in a manner that would make him [or her] liable
under still-valid murder theories” has made a sufficient prima facie showing “unless the
record of conviction refutes those assertions as a matter of law,” under Garcia such
assertions are insufficient if there is substantial evidence in the record to support the
petitioner’s guilt of murder under a still-valid theory. (Duchine, supra, 60 Cal.App.5th at
pp. 812–813.)
The parties do not dispute that Drayton states the appropriate standard; we agree.
As our sister court reasoned in Duchine:
“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
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proof on the prosecution, at the resentencing hearing. The interpretation
adopted by Garcia would mean the prosecution’s burden 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; accord, DeHuff, supra, 63
Cal.App.5th at pp. 441–442.)
Here, it is also undisputed by the parties that under this standard, Aleo established
a prima facie showing he is entitled to relief such that the court was required to issue an
order to show cause. (§ 1170.95, subd. (c).) Again, we agree. As required, Aleo’s
petition alleged a complaint, information, or indictment was filed against him that
allowed the prosecution to proceed under a theory of felony-murder or murder under the
natural and probable consequences doctrine; he was convicted of first or second degree
murder following a trial; and 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).) And the parties do not argue, nor does the record before us conclusively
establish, Aleo was ineligible for relief as a matter of law. Indeed, even if we were to
accept as true defense counsel’s concession Aleo was a major participant in the crime, the
court also had to conclude Aleo acted with reckless indifference to human life to render
him categorically ineligible for relief. (§ 189, subd. (e)(3).) The record does not reflect
the court made this requisite determination or that such a conclusion is supported by the
record as a matter of law. Rather, Aleo denied he acted with reckless indifference to
human life and the record of conviction does not conclusively establish he acted with the
requisite intent. Thus, our review of the record comports with the parties’
representations; that is, Aleo established a prima facie showing he is entitled to relief and
the record did not rebut Aleo’s allegations as a matter of law. Accordingly, the court was
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required to issue an order to show cause and hold a hearing during which the prosecution
bears the burden of proving, beyond a reasonable doubt, that Aleo is ineligible for
resentencing.
Accordingly, we reverse the court’s order denying the petition and remand for
further proceedings.3
DISPOSITION
The court’s order denying the section 1170.95 petition is reversed. The court is
directed to issue an order to show cause and to hold a hearing during which the
prosecution will bear the burden of proving, beyond a reasonable doubt, that Aleo is
ineligible for resentencing.
PEÑA, J.
WE CONCUR:
HILL, P.J.
DETJEN, J.
3Because we remand on other grounds, we do not address Aleo’s ineffective assistance of
counsel claim.
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