Filed 7/9/21 P. v. Bryant 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Shasta)
----
THE PEOPLE, C090651, C091506
Plaintiff and Respondent, (Super. Ct. No. 99F9303)
v.
JASON RINALDO BRYANT,
Defendant and Appellant.
Defendant Jason Rinaldo Bryant appeals orders denying his petition for
resentencing under Penal Code section 1170.95,1 and denying a request from the
Secretary of the California Department of Corrections and Rehabilitation (CDCR) to
recall defendant’s sentence under section 1170, subdivision (d). Defendant argues the
court erred by denying his section 1170.95 petition after conducting a factual analysis at
the prima facie stage; the People concede the error. We conclude defendant did make a
1 Undesignated statutory references are to the Penal Code.
1
prima facie showing and will reverse for the court to issue an order to show cause under
section 1170.95, subdivision (c). The court did not, however, abuse its discretion in not
recalling defendant’s sentence under section 1170, subdivision (d), and we affirm that
ruling.
LEGAL BACKGROUND
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which became
effective on January 1, 2019, was enacted to amend the felony-murder rule and the
natural and probable consequences doctrine “to ensure that murder liability is not
imposed on a person who [was] 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(f).) To accomplish this, the bill amended
section 188, which defines malice, and section 189, which defines the degrees of murder.
(People v. Anthony (2019) 32 Cal.App.5th 1102, 1148.)
As amended, section 188 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).) By requiring a showing of malice for
murder (other than first degree felony murder), the statute eliminates vicarious murder
liability for aiding and abetting, a lesser offense under the natural and probable
consequences doctrine. (§ 188.) The amendments did not, however, repeal the law
imposing criminal liability for implied malice murder.
New section 189, subdivision (e) limits the circumstances under which a person
may be convicted of first degree felony murder. (§ 189, subd. (e).) Before the enactment
of Senate Bill 1437 (2017-2018 Reg. Sess.), a defendant who intended to commit a
specified felony could be convicted of first degree murder for a killing committed in the
perpetration of (or attempt to perpetrate) specified felonies, without further examination
of his or her mental state. (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th
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270, 275.) Amended section 189, subdivision (e) now 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 . . . .” (§ 189, subd. (e).)
Senate Bill 1437 (2017-2018 Reg. Sess.) also established a procedure for qualified
persons to seek retroactive relief based on these changes in the law. (Stats. 2018, ch.
1015, § 4.) Under section 1170.95, subdivision (a), a person convicted of felony murder
or murder under a natural and probable consequences theory may file a petition to vacate
their conviction and obtain resentencing where specified conditions are met. (§ 1170.95,
subd. (a).) The specified conditions are 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) 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[;] [¶] [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).)
The petitioner has the burden of making a prima facie showing that he or she falls
within the provisions of the statute. (§ 1170.95, subd. (c).) If that burden is met, the
court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder conviction and resentence the petitioner on the remaining counts.
(§ 1170.95, subds. (c), (d).) At any such hearing, the prosecution bears the burden of
proving beyond a reasonable doubt that the defendant is ineligible for resentencing.
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(§ 1170.95, subd. (d)(3).) The prosecution and the petitioner may “rely on the record of
conviction or offer new or additional evidence to meet their respective burdens.”
(§ 1170.95, subd. (d)(3).)
FACTUAL AND PROCEDURAL BACKGROUND
On February 28, 2000, defendant pleaded guilty to first degree felony murder
(§ 187, subd. (a)), four counts of attempted first degree robbery (§§ 664/212.5, subd. (a)),
one count of cruelty to animals (§ 597, subd. (a)), one count of first degree burglary
(§ 459), eight counts of first degree robbery (§ 212, subd. (a)), and admitted being armed
with a firearm in commission of the murder (§ 12022, subd. (a)).
The presentence/probation report2 stated that in November 1999, defendant and
Theodore Gray burglarized the home of Joe Fontecchio while no one was home and stole
some drugs and guns. On December 2, 1999, the two, along with Jeffrey Dumont,
learned Fontecchio was going to be at a bar that night with his sons, had recently sold
some cannabis, and had a large amount of cash at his residence. They also learned he had
gotten a dog for security since the last burglary. That night, the three snuck onto
Fontecchio’s property armed with firearms and knives. As they were preparing to enter
the residence, Fontecchio, his two sons, and a roommate returned.
Gray later told sheriff’s deputies that defendant “did not want to follow through
since the residents were home,” but after an hour-long discussion they all agreed to
continue. Defendant also later told deputies he argued with Gray and Dumont for 45
minutes and only relented after Gray convinced him nobody inside would resist.
2 The records from defendant’s change of plea hearing were destroyed because they
are older than 10 years. (Gov. Code, § 69955, subd. (e).) As such, we do not have in the
record what the stipulated factual basis was for defendant’s plea. We summarize the
facts from the police reports and interviews detailed in the presentence/probation report
because the parties and the trial court have relied on these facts at all relevant stages.
4
Defendant also said they all agreed defendant would not draw his gun because the gun
had been seen recently in the possession of one of Fontecchio’s sons.
After deciding to continue, defendant smashed the back-door window so that Gray
and Dumont could enter the residence first. Fontecchio awoke from the couch and fired
several shots from a gun, striking Gray. Gray and Dumont returned fire and also shot two
attacking dogs. Gray said he never saw defendant pull out his firearm, “but assumed he
might have as he was responsible for securing anyone who came out of the bedrooms.”
The three then fled the residence to defendant’s car and defendant drove away.
Defendant believed the entire incident lasted about five seconds.
Later that night, a sheriff’s deputy attempted to pull over defendant but when the
officer got out of his car, defendant drove off. After being chased, defendant drove his
car into a ditch and all three ran away. Defendant was arrested on December 3 and Gray
and Dumont turned themselves in to the Shasta County Sheriff’s Department the
following day.
On April 18, 2000, defendant was sentenced in accordance with the plea to a total
term of 26 years to life.3
Section 1170.95 petition
On January 3, 2019, counsel for defendant filed a petition for resentencing under
section 1170.95. The petition contended that, relying on the facts in the
presentence/probation report, defendant was not the actual killer, did not aid and abet the
actual killer with the intent to kill, and was not a major participant in the felony who
3 On March 27, 2020, the Governor commuted defendant’s sentence and ordered
him released on parole based on “the work he has done since [his crimes] to transform
himself.” Defendant still seeks relief, however, arguing that he still stands to benefit
from resentencing under sections 1170.95 and 1170, subdivision (d), as it could lead to
the vacation of his murder conviction and gives the trial court authority to, among other
things, strike his firearm enhancements.
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acted with reckless indifference to human life. The prosecutor conceded in briefing that
defendant was not the actual killer and did not act with the intent to kill, but argued
defendant was a major participant who acted with reckless indifference to human life;
defendant’s counsel filed a reply brief.
On September 9, 2019, the trial court denied defendant’s petition for relief.
Defendant’s counsel asked that defendant be allowed to personally attend the hearing;
that request was denied. The court then found Senate Bill 1437 (2017-2018 Reg. Sess.)
unconstitutional because it impermissibly amends Proposition 7 (Prop. 7, as approved by
voters, Gen. Elec. (Nov. 7, 1978); Proposition 7) and Proposition 115 (Prop. 115, as
approved by voters, Primary Elec. (June 5, 1990); Proposition 115). Finally, even if it
was constitutional, the trial court said it would deny the petition because it found
defendant was a major participant who acted with reckless indifference towards human
life. Relying on the facts from the presentence/probation report, the court described
defendant’s involvement in the crime, including that he knew that he and the other two
perpetrators were armed; knew there were people inside the residence; helped the others
enter the residence; was part of the plan to secure the occupants of the residence; and
drove the getaway car. In finding reckless indifference, the court reiterated these facts
and noted defendant’s “initial reluctance prior to the entry indicated his awareness of the
dangerousness of the situation. His decision to move forward with the plan demonstrated
a reckless indifference to human life.”
Defendant timely appealed the denial of his section 1170.95 petition.
Section 1170 letter
On June 19, 2019, the Secretary of the CDCR wrote the trial court to “provide the
court with the authority to resentence [defendant], pursuant to” section 1170, subdivision
(d)(1). The letter noted a review of defendant’s file “reveals exceptional efforts relative
to Self-Help groups and furthering his education. [Defendant] has earned 85 Laudatory
128B’s from various staff and volunteers as well as a Bachelor of Arts Degree from
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Adams State College in Business Administration and Master of Arts Degree from
California State University, Dominguez Hills in Humanities.” The Secretary
“recommend[ed] [defendant’s] sentence be recalled and that he be resentenced.” The
letter attached documentation from defendant’s prison record to support the Secretary’s
recommendation. On October 2, 2019, defendant filed a pleading in support of the
recommendation for recall and resentencing and attached supporting documents,
including 26 letters from professionals, community members, and family members,
attesting to his rehabilitation and good character. The prosecutor filed a brief opposing it.
On December 19, 2019, the court declined to recall defendant’s sentence. It first
declined to act on the ground that it was “without jurisdiction” because the case was on
appeal from the court’s denial of defendant’s section 1170.95 petition. Even if it did
have jurisdiction, the court stated it would decline to exercise discretion. The court
summarized the facts of the case from “the plea form, probation report, sentencing
minute order, and abstract of judgment,” among other information. From this, it
concluded that defendant was a major participant who acted with reckless indifference to
human life because he helped plan the burglary and had opportunities to not participate,
was armed, and “did nothing to prevent or stop the shooting, and assisted the shooter by
driving the car away from the scene.” Thus, the court found that defendant was
sentenced appropriately for the crimes, reasoning as follows:
“The District Attorney opposes the request by CDCR to resentence Defendant.
Several members of [the victim’s] family were contacted and they also oppose the
request.
“The Court is also mindful of the Cal. Rule of Court 4.410 regarding the general
objectives of sentencing. Those objectives include protection of society and punishment
of the defendant. This is a case that involves the most serious crime with a very severe
penalty. The sentence imposed by the Trial Court intended to simultaneously protect
society and punish Defendant. In addition, the sentence (including incarceration) is
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intended to rehabilitate a defendant. Here, Defendant has productively spent his time
obtaining an education. He also remained virtually offense-free during his period of
incarceration.
“It is also a goal to be uniform in sentencing. The legislature has provided both
the punishment for the offense, as well as the statutory vehicle to recall the sentence at
the request of CDCR. Individuals convicted of first degree murder all face a significantly
serious sentence, and that sentence is consistently imposed throughout the state.
“But, another objective in sentencing is to deter others from criminal conduct by
demonstrating its consequences. Taking into consideration the particular facts and
circumstances of this case (including Defendant’s post-conviction conduct and
accomplishments), this court feels that Defendant should not be resentenced pursuant to
Cal. Pen. Code § 1170(d)(1).”
Defendant appealed this order on February 18, 2020.4
DISCUSSION
I
Section 1170.95 Petition
Defendant makes three arguments relating to his section 1170.95 petition: (1) he
made a prima facie showing for relief; (2) Senate Bill 1437 (2017-2018 Reg. Sess.) and
section 1170.95 are constitutional; and (3) the court erred in denying defendant’s request
to be present for the hearing. For the first argument, defendant asserts the court should
have issued an order to show cause and held a hearing to resolve any factual disputes
because nothing in the record conclusively established his ineligibility.
The People agree Senate Bill 1437 (2017-2018 Reg. Sess.) is constitutional, and
that the trial court engaged in improper factfinding in denying defendant relief at the
4 At defendant’s request we consolidated this appeal with his prior appeal.
8
prima facie stage, and this matter must be remanded with direction to issue an order to
show cause. The People do not concede, however, that defendant will eventually be
entitled to relief.
A. Constitutionality
We first agree with the parties that the court erroneously found Senate Bill 1437
(2017-2018 Reg. Sess.) unconstitutionally amended Propositions 7 and 115. Several
Courts of Appeal—including this one—have rejected the arguments the trial court relied
upon in finding Senate Bill 1437 unconstitutional. In People v. Superior Court (Gooden),
supra, 42 Cal.App.5th at pages 279 through 289, and People v. Lamoureux (2019) 42
Cal.App.5th 241, 250 through 251, the courts concluded that Senate Bill 1437 does not
unconstitutionally amend Propositions 7 and 115. (Accord, People v. Bucio (2020) 48
Cal.App.5th 300, 311-312; People v. Cruz (2020) 46 Cal.App.5th 740, 747; People v.
Solis (2020) 46 Cal.App.5th 762, 769.) We agreed with the above authorities in People v.
Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 909-917 (Senate Bill 1437 was not
an invalid attempt to amend Prop. 7 or Prop. 115).
Given the lengthy and thoughtful discussions in each of the above published
opinions, we see no need to address these contentions further. It suffices to say that we
agree with those courts concluding Senate Bill 1437 did not unconstitutionally amend
Proposition 7 or Proposition 115.
B. Prima facie analysis
Our Supreme Court is reviewing several issues related to the prima facie process
of section 1170.95, subdivision (c). Relevant here is whether trial courts may “consider
the record of conviction in determining whether a defendant has made a prima facie
showing of eligibility for relief.” (See order granting review of People v. Lewis (2020)
43 Cal.App.5th 1128 [2020 Cal. LEXIS 1946], review granted Mar. 18, 2020, S260598
(Lewis).)
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In the meantime, we agree with our colleagues in other courts that have found a
trial court is not required to accept assertions in a petition when the record refutes them.
(See, e.g., People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165-1166.) As the Lewis
court aptly summarized: “ ‘It would be a gross misuse of judicial resources to require the
issuance of an order to show cause or even appointment of counsel based solely on the
allegations of the petition, which frequently are erroneous, when even a cursory review of
the court file would show as a matter of law that the petitioner is not eligible for relief.’ ”
(Lewis, supra, 43 Cal.App.5th at p. 1138, rev.gr.) In this way, trial courts “perform a
substantive gatekeeping function, screening out clearly ineligible petitioners before
devoting additional resources to the resentencing process” (People v. Verdugo (2020) 44
Cal.App.5th 320, 331, review granted, Mar. 18, 2020, S260493 (Verdugo)), a concept
that the court characterized as a “well-established part of the resentencing process under
Propositions 36 and 47.” (Id. at p. 329.)
Further, in performing this preliminary screening function, courts are not limited
to the allegations of the petition; rather, they may review any “readily ascertainable”
information in the court file or otherwise part of the record of conviction. (Verdugo,
supra, 44 Cal.App.5th at p. 329, rev.gr.); accord, Lewis, supra, 43 Cal.App.5th at pp.
1137-1139, rev.gr.) Thus, if the record of conviction establishes as a matter of law that
the petitioner is ineligible for relief, the trial court may deny the petition without
conducting further proceedings. (Verdugo, at pp. 329-330, 332-333; Lewis, at pp. 1139-
1140; People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020,
S260410.)
However, when assessing a prima facie showing, trial courts must assume the facts
stated in the petition are true and decline to find a prima facie case only where the
defendant is ineligible as a matter of law and there is no contested issue of fact or law.
(People v. Tarkington (2020) 49 Cal.App.5th 892, 909, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 980-982; People v. Smith (2020)
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49 Cal.App.5th 85, 95-96, review granted July 22, 2020, S262835; cf. People v. Law
(2020) 48 Cal.App.5th 811, 826 [analyzing whether facts in record show defendant was
major participant who acted with reckless indifference to human life], review granted
July 8, 2020, S262490.) This stage is not the time for the trial court to engage in
“factfinding involving the weighing of evidence or the exercise of discretion.” (Drayton,
supra, at p. 980; contra, People v. Garcia (2020) 57 Cal.App.5th 100, 116 [disagreeing
with Drayton that petitioner’s assertions must be conclusively refuted as matter of law],
review granted Feb. 10, 2021, S265692.) Where opposing inferences are possible, trial
courts should appoint counsel and permit briefing, and then, if petitioner’s entitlement to
relief still remains unresolved, issue an order to show cause for an evidentiary hearing.
(People v. Duchine (2021) 60 Cal.App.5th 798, 815 [“the time for weighing and
balancing and making findings on the ultimate issues arises at the evidentiary hearing
stage rather than the prima facie stage, at least where the record is not dispositive on the
factual issues”].)
Defendant’s petition pled the facts required by section 1170.95, subdivision (a),
and the record of conviction here does not conclusively establish defendant is ineligible
for relief as a matter of law. There are no jury findings, prior findings by this court, or
any other finding related to defendant’s conviction that necessarily found he was the
actual killer, had the intent to kill and aided and abetted the actual killer, or was a major
participant who acted with reckless indifference to human life. (See, e.g., People v.
Gomez (2020) 52 Cal.App.5th 1, 15 [“the jury necessarily found that [the defendant]
either participated in the alleged robbery and kidnapping with the intent to kill [the
victim], or that she was a major participant in those crimes who acted with reckless
indifference to [the victim’s] life”], review granted Oct. 14, 2020, S264033; Verdugo,
supra, 44 Cal.App.5th at p. 333 [“Based on the language of our opinion, the court
correctly concluded [the defendant’s] murder conviction was necessarily predicated on a
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finding he had acted with express malice and, therefore, he was ineligible for relief under
section 1170.95”], rev.gr.)
Determining defendant’s eligibility instead requires a factual analysis. There are
no facts suggesting defendant was the actual killer or harbored the specific intent to kill,
as the prosecutor conceded. For defendant to be ineligible for relief then, it must be
determined defendant was a major participant acting with reckless indifference to human
life. This is a fact-intensive inquiry not appropriate at the prima facie stage. For
example, whether the defendant acted with reckless indifference to human life relies on
factors such as personal use of any weapons, physical presence at the crime scene and
opportunities to restrain the crime and/or aid the victim, and the duration of the felony.
(People v. Clark (2016) 63 Cal.4th 522, 618-623 (Clark); cf. People v. Banks (2015) 61
Cal.4th 788, 803 [detailing analysis to determine whether a defendant was a major
participant].) No one factor “ ‘is necessary, nor is any one of them necessarily
sufficient.’ ” (Clark, supra, at p. 618.)
This is not established here by the record of conviction as a matter of law.
Defendant’s participation in an armed theft does not automatically render him having
acted with reckless indifference to human life. (See People v. Bascomb (2020) 55
Cal.App.5th 1077, 1088 [“A knowledge of the possible risk of death inherent in certain
felonies like armed robbery does not satisfy the reckless indifference standard”].)
Instead, there must be facts that “elevated the risk to human life beyond” that inherent in
any armed theft. (Clark, supra, 62 Cal.4th at p. 623.)
Since there is nothing in the record establishing as a matter of law that defendant
acted with reckless indifference to human life, the court was obligated to perform a
factual inquiry to determine defendant’s eligibility in accordance with the provisions
provided by the Legislature. This it did not do. The Legislature created a mechanism to
conclusively decide eligibility in subdivision (d) of section 1170.95. The trial court
short-circuited these procedures by having a hearing without permitting either party to
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“offer new or additional evidence” or finding the prosecutor proved “beyond a reasonable
doubt” that defendant “is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
The error here was not in the conclusion but in the process. We do not decide
whether defendant is eligible for relief. Instead, we find that defendant is not ineligible
as a matter of law based on the record of conviction and therefore has made a prima facie
showing for relief. We will reverse and remand for the court to issue an order to show
cause and conduct a hearing in accordance with section 1170.95, subdivision (d) to
determine defendant’s eligibility.5
II
Sentence Recall Under Section 1170
Defendant also contends the court had jurisdiction to recall his sentence under
section 1170, subdivision (d), and it abused its discretion in not doing so. The People
agree the court had jurisdiction to recall defendant’s sentence, but argue it properly
exercised that discretion in denying relief.
Section 1170, subdivision (d)(1) provides in pertinent part that “the court may, . . .
at any time upon the recommendation of the secretary . . . , recall the sentence and
commitment previously ordered and resentence the defendant . . . . The court
resentencing under this paragraph may reduce a defendant’s term of imprisonment and
modify the judgment, including a judgment entered after a plea agreement, if it is in the
interest of justice.”
The trial court had jurisdiction to recall defendant’s sentence notwithstanding his
pending appeal. Section 1170, subdivision (d) “is an exception to the common law rule
that the court loses resentencing jurisdiction once execution of sentence has begun.” (Dix
v. Superior Court (1991) 53 Cal.3d 442, 455.) This also is a limited exception to the rule
5 We therefore need not address defendant’s argument regarding his right to be
present at the prima facie hearing stage.
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that “ ‘[t]he filing of a valid notice of appeal vests jurisdiction of the cause in the
appellate court until determination of the appeal and issuance of the remittitur.’ ”
(People v. Scarbrough (2015) 240 Cal.App.4th 916, 923; Portillo v. Superior Court
(1992) 10 Cal.App.4th 1829, 1836 [“We thus conclude a trial court is not divested of its
limited jurisdiction under section 1170, subdivision (d) to recall a sentence for
modification within 120 days of the defendant’s commitment by the filing of an appeal
notice”].)
As for the court’s decision, we review its “order declining to follow the
Secretary’s recommendation for abuse of discretion.” (People v. Frazier (2020) 55
Cal.App.5th 858, 863.) Its decision “ ‘will not be disturbed except on a showing the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd manner that
resulted in a manifest miscarriage of justice.’ ” (People v. Holford (2012) 203
Cal.App.4th 155, 168.)
The reasons given by the trial court for declining to recall defendant’s sentence do
not indicate that it abused its discretion in finding the interests of justice did not justify
relief. The trial court reviewed the entire record, including defendant’s record of
conviction, including the presentence/probation report that provided the factual summary
of defendant’s crimes, and his behavior in prison. The court also detailed defendant’s
involvement in the murder of Fontecchio, including knowing people were inside; he and
his compatriots were armed; Fontecchio may have gotten guard dogs; and that defendant
was apprehensive because of the risk but still knowingly decided to continue.
This is a different analysis than whether to resentence defendant under section
1170.95. As discussed, under that resentencing procedure the parties are permitted to
submit additional evidence and the prosecutor has the burden to establish ineligibility
beyond a reasonable doubt. Conversely, under section 1170, subdivision (d)(1), the trial
court has full discretion whether to recall and resentence defendant in the interest of
justice. Even if defendant is later determined to not have been a major participant who
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acted with reckless indifference to human life at the evidentiary hearing under section
1170.95, the trial court’s finding that defendant was not entitled to resentencing under
section 1170 because he participated in a violent crime with substantial risk of death, and
which did end in death, was not arbitrary or capricious.
We therefore do not find the court abused its discretion in deciding not to recall
defendant’s sentence under section 1170, subdivision (d).
DISPOSITION
For the foregoing reasons, we reverse the trial court’s order denying defendant’s
section 1170.95 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 defendant’s murder conviction and recall
his sentence and resentence him.
KRAUSE , J.
We concur:
MURRAY , Acting P. J.
RENNER , J.
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