Filed 8/31/21 P. v. Marsh CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078224
Plaintiff and Respondent,
v. (Super. Ct. No. CR-59191)
DENIS PAUL MARSH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Peter C. Deddeh, Judge. Reversed and remanded with directions.
Rex Adam Williams, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina, Lynne G. McGinnis, and Christine L. Bergman, Deputy Attorneys
General, for Plaintiff and Respondent.
In 1983, Denis Paul Marsh was convicted in a court trial of first degree
murder (Pen. Code,1 § 187); conspiracy to commit burglary (§§ 182.1 and
459); robbery (§ 211); and one count of arson (§ 451, subd. (b)). The court
found Marsh used a deadly weapon (§ 12022, subd. (b)) and that he
personally inflicted great bodily injury on the victim (§ 12022.7). Marsh was
sentenced to an indeterminate term of 26 years to life in prison.
Marsh appealed and this court affirmed the judgment in an
unpublished opinion People v. Marsh (Apr. 9, 1985, D000355).
In 2019, Marsh filed a pro. per. petition for resentencing under
section 1170.95. The trial court appointed counsel, received briefing,
considered the record of conviction, and held a hearing at which both parties
submitted on the briefs. The court found Marsh was an active participant in
the homicide and denied the petition for resentencing.
Marsh appeals contending the court engaged in impermissible
factfinding without issuing an order to show cause (OSC). The Attorney
General originally conceded error. After briefing was completed, the
Supreme Court issued its opinion in People v. Lewis (2021) 11 Cal.5th 952
(Lewis). There, the court held that a trial judge considering whether a
petition filed under section 1170.95 stated a prima facie case for relief, could
review the record of conviction, including any prior appellate opinion. The
court concluded a trial court could rely on that record and deny a petition
without an OSC, if the record demonstrated the petitioner is not eligible for
relief as a matter of law. The limitation on such authority is the court may
not engage in finding facts. Evidentiary evaluation must await the issuance
of an OSC and an appropriate evidentiary hearing. (Lewis, at pp. 970-973.)
1 All further statutory references are to the Penal Code.
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After the issuance of the Lewis opinion, we requested supplemental
briefing. In the briefing, the Attorney General argues the court’s conclusion
Marsh was an active participant in the crime was based on impermissible
factfinding.
STATEMENT OF FACTS
The following summary of facts is taken from our prior opinion. (People
v. Marsh, supra, D000355.)
“Marsh, 16, Jeffrey Inglett, 17, and Paul Webber, 18, planned to
burglarize the home of Anna Weerts, 86, a lifetime resident of North Park. In
preparation for the burglary Marsh and Inglett went to Weerts’ home early
one morning. They were high on alcohol and drugs. Once there, the two
decided to proceed immediately with the burglary. They broke into the house
and found Weerts asleep on the couch. Some money lay next to her. Marsh
and Inglett approached the couch, awakening Weerts. A brief struggle for the
money ensued whereupon Inglett cut Weerts’ throat and stabbed her in the
chest. Marsh took the knife and also stabbed Weerts. Marsh and Inglett
piled some flammable materials on Weerts’ body and torched the corpse.
They departed with four to five thousand dollars cash and some gold coins,
returning to the house twice in a vain attempt to extinguish the fire. Marsh,
Inglett and Webber later divided the money. The fire destroyed the house.
Weerts died of multiple stab wounds; she had been stabbed over 90 times.”
DISCUSSION
The question of whether the court could rely on our prior opinion,
which declared Marsh planned the burglary, actively participated, stabbed
the victim, and set her on fire is a close one. Is relying on the opinion
factfinding? Here, the People’s appellate representative continues to
advocate for remand and an evidentiary hearing. We think the prudent
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course is to accept the concession in this case and remand for an evidentiary
hearing. Marsh will get the benefit of the statutory procedure and the
District Attorney will have the opportunity to make an evidentiary showing.
We take this course in the face of the Attorney General’s arguments to avoid
appearing to be an advocate for any party to this appeal. We express no
opinion regarding the resolution of the evidentiary hearing.
DISPOSITION
The order denying Marsh’s petition for resentencing under section
1170.95 is reversed. The matter is remanded to the Superior Court with
directions to issue an OSC and to conduct an evidentiary hearing as required
by statute.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
GUERRERO, J.
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