Filed 7/20/21 P. v. Dietzman CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080382
Plaintiff and Respondent,
(Super. Ct. No. CR-19-002421)
v.
JONIE DIETZMAN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Nancy A.
Leo, Judge.
Kendall Dawson Wasley, 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, Catherine Chatman and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Before Detjen, Acting P.J., Peña, J. and Snauffer, J.
INTRODUCTION
Defendant Jonie Dietzman pleaded no contest to first degree felony murder in
1994. After the passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
1437), defendant filed a Penal Code section 1170.95 petition for resentencing.
(Undesignated statutory references are to the Penal Code.) The court denied the petition,
noting it did not believe defendant had established a prima face case there was a
reasonable likelihood she would be entitled to relief; rather, “she clearly acted as a
principal and aided and abetted.” Defendant now challenges the denial of her petition
and the People concede remand is necessary for the court to issue a show cause order and
to hold an evidentiary hearing because the record of conviction did not establish
defendant was categorically ineligible for relief.
We agree with the parties, reverse the court’s order denying the petition, and
remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged, in part, with willfully, unlawfully, and feloniously
committing and attempting to commit a robbery and burglary, during the commission of
which a human being was killed (count I). Her case proceeded to a jury trial in 1994 and,
while the jury was deliberating on the charges filed against her, defendant pleaded no
contest to count I, first degree felony murder committed during a robbery and burglary.
She also pleaded no contest to an enhancement allegation that she was armed with a
firearm during the commission of the crime within the meaning of section 12022,
subdivision (a). The court sentenced defendant to a term of 25 years to life plus one year
for the firearm enhancement. The parties stipulated the evidence presented during the
trial provided a factual basis for defendant’s plea.
Petition For Resentencing
In 2018, defendant submitted a petition for resentencing pursuant to section
1170.95 using a preprinted form. She checked boxes stating she pled no contest to first
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or second degree murder in lieu of going to trial because she believed she could be
convicted of first or second degree murder at trial pursuant to the felony-murder rule or
the natural and probable consequences doctrine; and she could not now be convicted of
first or second degree murder in light of changes made to sections 188 and 189, effective
January 1, 2019 (pursuant to Senate Bill 1437).
The People responded to the petition, arguing defendant was not entitled to relief
because the facts of the case established she was a major participant in the robbery who
acted with reckless indifference to human life. They argued defendant went to the
victim’s home “fully knowing [her coperpetrator] was armed with a loaded sawed-off
shotgun.” She brought materials to tie up the victims and “helped prevent escape by
standing guard after closing the door while [the coperpetrator] threatened violence with
the sawed-off shotgun, in close proximity to the killing.” Once defendant’s coperpetrator
killed the victim, defendant searched the victim for money, “and then went from victim to
victim taking their money.” She tried to tie up the victims and “took a portion of the
proceeds as per their plan.” The People also moved to dismiss the petition on the
grounds that Senate Bill 1437 was unconstitutional.
Defendant filed a reply, arguing she made a prima facie showing she is entitled to
relief. She noted the People conceded she was not the actual killer and the jury
instructions did not charge her with directly committing or aiding and abetting a murder.
Rather, they charged defendant with committing a robbery during the commission of
which a human being was killed. Defendant asserted her entitlement to relief depended
on the resolution of an issue of fact: whether she was a major participant in the
underlying robbery who acted with reckless indifference to human life. She further
argued Senate Bill 1437 was constitutional.
The People filed a response to defendant’s reply in which they denied defendant
made a prima facie showing of entitlement to relief and argued she was ineligible for
relief as a major participant who acted with reckless indifference to human life. They
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also argued she was barred from relief because she aided and abetted the actual killer.
They asserted the prosecution’s burden at the prima facie stage is “simply to show that
there is enough evidence, notwithstanding the changes to sections 188 and 189, from
which a reasonable jury potentially could find [defendant] guilty of murder beyond a
reasonable doubt.”
The court held a hearing at which it denied defendant’s petition. At the hearing,
defendant was present and represented by counsel. The People argued the following facts
of the case were not in dispute:
“[Defendant] and her codefendant, Stephens, broke into the home of a
known drug dealer, Jose Calderon, to rob him. Stephens was armed with a
sawed-off shotgun and demanded money and drugs while [defendant] stood
nearby, guarding the front door. And in this home where Calderon lived,
there were a number of other people. Stephens ended up shooting
Calderon. And while he was on the floor dying, [defendant] removed the
money from his pockets and took the money from the other five men that
were in the room. She began tying people up with a telephone cord that she
carried into the home when she broke into it with Mr. Stephens. She helped
Stephens then leave before the police arrived and split the proceeds of the
robbery with Stephens.”
The People then explained defendant pled guilty. They asserted there was sufficient
evidence defendant could be convicted of murder, even under the changes to sections 188
and 189 because she was a “major participant” who acted with malice and reckless
indifference to human life. She was also an “aider and abettor to the actual murder.”
Defense counsel denied the facts in the case were undisputed. He argued “for the
People to be bringing up the details and the particulars on whether or not she was a
reckless participant or acted with extreme indifference to human life, or was a major
participant, or any of these types of details, is not the time and place for it.” He argued
the complaint only charged defendant with felony murder, and she was not the actual
killer.
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In denying defendant’s petition, the court held it agreed “under the premise that—
whether there’s a prima facie showing is whether there’s a reasonable likelihood that she
would be entitled to relief. But based on the facts of this case, I don’t find that to be true
at all. Certainly, from the facts of this case, she clearly acted as a principal and aided and
abetted. So I don’t think that there is a prima facie showing in this matter at all. So that
petition will be denied.”
DISCUSSION
Defendant challenges the denial of her petition for resentencing and the parties
agree the matter must be remanded for the court to issue an order to show cause and to
hold an evidentiary hearing. We agree with the parties, reverse the court’s order, and
remand for further proceedings.
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, which provides 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.)
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
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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
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).)
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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).)
If a hearing is held, “[t]he prosecutor 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).) “[T]he burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Ibid.) “If
the prosecution fails to sustain its burden of proof, the prior conviction, and any
allegations and enhancements attached to the conviction, shall be vacated and the
petitioner shall be resentenced on the remaining charges.” (Ibid.)
2. Analysis
Defendant argues there were no facts in the record of conviction that rendered her
categorically ineligible for relief as a matter of law. She asserts both the prosecutor’s
argument and the court’s holding denying her petition “rested on judging and analyzing
the underlying facts as relevant to a major participant and reckless indifference analysis,
which [was] improper at [that] stage of the proceedings.” She argues the court erred in
requiring her to prove “there’s a reasonable likelihood that she would be entitled to
relief” and in weighing and judging facts to conclude she had not set forth a prima facie
case. The People concede the major participant and reckless indifference to human life
inquiries are fact-intensive and not properly conducted at the prima facie stage. They
agree the matter should be remanded for further proceedings after the issuance of an
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order to show cause. We, too, agree defendant 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 defendant is ineligible
for resentencing. (§ 1170.95, subd. (d)(3).)
Here, the parties agree defendant’s petition established a prima facie showing she
is entitled to relief. (§ 1170.95, subd. (c).) Her petition, the related briefing, and the
attachments established a complaint, information, or indictment was filed against her that
allowed the prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine. She further alleged she pleaded no contest
to first degree murder in lieu of going to trial because she believed she could be convicted
of first or second degree murder at trial; and she could not now 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,
defendant was categorically ineligible for relief as a matter of law. Rather, the court had
to weigh evidence and facts to conclude defendant was a major participant who acted
with reckless indifference to human life or a direct aider and abettor, which was
inappropriate at this stage of the petitioning process. (See People v. Drayton (2020) 47
Cal.App.5th 965, 980–981 [“[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 …. [I]f 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 to readily ascertainable facts from the record (such as
the crime of conviction), rather than factfinding involving the weighing of evidence or
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the exercise of discretion (such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime)”]; accord, People v. Duchine
(2021) 60 Cal.App.5th 798, 815 [“prima facie showing the [petitioner] must make is that
he [or she] did not, in fact, act [as required] or harbor the mental state required, for a
murder conviction under current law” and “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.
Thus, absent a record of conviction that conclusively establishes that the petitioner
engaged in the requisite acts and had the requisite intent, the trial court should not
question [the petitioner’s] evidence”]; but see People v. Garcia (2020) 57 Cal.App.5th
100, 114–116, review granted Feb. 10, 2021, S265692 [trial court should determine
whether substantial evidence supports the conclusion the petitioner could still be
convicted of murder following the amendments to §§ 188 and 189 in determining if
petitioner made prima facie showing of eligibility for relief].)
Because defendant made a prima facie showing of entitlement to relief and the
record does not support a conclusion she was categorically ineligible for relief as a matter
of law, the court was 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
defendant is ineligible for resentencing. (§ 1170.95, subd. (c).) Accordingly, we reverse
the court’s order denying the petition and remand for further proceedings.
DISPOSITION
The court’s order denying the petition is reversed. The court is directed to issue an
order to show cause and to hold a hearing during which the prosecution bears the burden
of proving beyond a reasonable doubt that defendant is ineligible for resentencing.
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