Filed 11/9/21 P. v. Johnson CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081252
Plaintiff and Respondent,
(Super. Ct. No. BF134515A)
v.
JAMES WILLIS JOHNSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. John R. Brownlee,
Judge.
Scott Concklin, 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, Eric L. Christoffersen and
Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Smith, J.
INTRODUCTION
In 2013, a jury convicted petitioner James Willis Johnson of the second degree
murder of his one-month-old son1 (Pen. Code,2 § 187, subd. (a)). For this offense, the
trial court sentenced petitioner to a term of 15 years to life, stayed pursuant to
section 654.
In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95.
The court denied the petition without issuing an order to show cause on the ground
petitioner was not prosecuted or convicted under a theory of felony murder or murder
under the natural and probable consequences doctrine, as required for resentencing relief
under section 1170.95.
On appeal, petitioner asserts he established a prima facie claim for resentencing
relief, and the court therefore erred in denying the petition without issuing an order to
show cause or holding an evidentiary hearing. The People concede error but dispute the
standard of review to be applied on remand. We agree with petitioner and reverse.
FACTUAL AND PROCEDURAL HISTORY
In this court’s opinion on petitioner’s direct appeal, 3 we described the facts
leading to his convictions as follows:
“Denise Belmonte was Johnson’s partner and the mother of his three
children. The third child, a boy named Jordan, was the victim in this case.
He was born on October 6, 2010, and was just over a month old when he
died.
“Belmonte called 911 around 9:20 a.m. on November 10, 2010. A
paramedic who responded found Belmonte on the floor administering CPR
to Jordan. No one else was in the room. Jordan was not breathing and had
1 Petitioner was convicted of additional offenses as described below.
2 Undesignated statutory references are to the Penal Code.
3 We grant the People’s unopposed request for judicial notice of the records in
(People v. Johnson (Mar. 17, 2015, F067359) [nonpub. opn.].) (Evid. Code, §§ 452,
subd. (d)(1), 459, subd. (a).)
2.
no pulse. The paramedic observed rigor mortis in Jordan’s jaw when he
attempted to place a breathing tube. He concluded that Jordan was dead.
“Jordan was taken to an emergency room, where he was declared
dead at 9:45 a.m. An emergency room doctor believed Jordan died earlier
than 8:30 p.m. the previous night. An autopsy found the cause of death to
be multiple blunt force injuries. Both arms, both legs, and two ribs were
fractured. The liver was lacerated and bled internally; this was probably the
predominant injury. The brain was swollen and there was bleeding inside
the skull. These injuries were consistent with Jordan having been punched
or having collided with a solid object after being thrown. There were at
least two blows, one to the front of the abdomen on the right side and one
on the back left.
“There also were burns, which appeared to predate the other injuries,
as they had become infected and had started to turn green. These were
third-degree burns covering Jordan’s buttocks and genitalia and his lower
abdomen. They were caused by contact with a liquid at a temperature of
140 degrees or more for no more than 45 seconds.
“Hypovolemic shock, which is a kind of circulatory collapse, was
caused by the bleeding from the internal injuries, as well as by the burns,
and led to death. The pathologist who conducted the autopsy concluded
that the manner of death was homicide. Jordan’s blood tested positive for
THC and acetaminophen.
“The district attorney filed an information against Johnson and
Belmonte. It charged both defendants with three counts: (1) premeditated
murder (Pen. Code, § 187, subd. (a)); (2) assault on a child under age eight
with force likely to produce great bodily injury and resulting in death
(§ 273ab); and (3) willfully causing or permitting a child to suffer
unjustifiable physical pain or mental suffering, under circumstances likely
to produce great bodily injury or death (§ 273a, subd. (a)). In connection
with count 3, the information alleged for sentence-enhancement purposes
that Johnson and Belmonte each personally inflicted great bodily injury on
Jordan. (§ 12022.7, subd. (d).) The information charged Johnson alone
with resisting arrest, a misdemeanor. (§ 148, subd. (a)(1).)
“Belmonte entered into a plea agreement. In exchange for her
testimony against Johnson and her plea of guilty to child endangerment and
voluntary manslaughter, Belmonte received a determinate prison term of 15
years.
3.
“Belmonte was the prosecution’s primary witness at trial. She
testified that she met Johnson in 2005, when she was 16 and Johnson was
26. Johnson already had a son. Their first child together, Jade, was born in
2008 and their second, James, in 2009.
“Belmonte testified that Johnson was physically abusive to her
throughout their relationship. She also testified that she had no bond with
James because he was a boy; she said her mother favored boys and she
wanted to do the opposite. County authorities removed both children from
the parents’ custody.
“Belmonte regained custody of Jade in September 2010, after falsely
assuring the social worker that she was separated from Johnson and living
on her own in a motel. Before giving birth to Jordan in October 2010,
Belmonte admitted she was not really living at the motel, and she gave Jade
to the social worker to be placed with James. Belmonte and Johnson
convinced the social worker that Belmonte would be living with Johnson’s
mother after Jordan was born, however, so Jade was returned to Belmonte
when she left the hospital with Jordan. Immediately after this, Belmonte
and Johnson resumed living together.
“Belmonte testified about Johnson’s behavior toward Jordan during
the month Jordan lived. She found recordings Johnson had made with his
phone of speeches Johnson made to Jordan. In these recordings, Johnson
spoke to Jordan in an adult manner about adult subjects, such as growing
marijuana. Johnson also took Jordan to a room in the apartment where
marijuana was grown and tried to show Jordan how to grow it. He tried to
show Jordan how to box. He pushed Jordan’s legs up so his feet touched
his head, trying to make Jordan more flexible. Johnson held Jordan upside
down by the legs and swung his body. He swaddled Jordan improperly.
Sometimes Johnson swaddled Jordan in such a way as to hold Jordan’s
pacifier in mouth, because Johnson did not like it when Jordan spit the
pacifier out. Other times, Johnson swaddled Jordan so that Jordan’s arms
were behind his back. Belmonte told Johnson not to do these things, and
Johnson said he would do whatever he wanted if he really was Jordan’s
father. During Jordan’s life and Belmonte’s pregnancy with Jordan,
Johnson often expressed doubt about whether he was Jordan’s father,
sometimes leading to physical abuse of Belmonte.
“According to Belmonte’s testimony, Jordan sustained the burns on
his lower body on November 3, 2010, a week before his death. That night,
Belmonte, Johnson, and Jade were in their living room playing a video
game when Jordan’s diaper needed to be changed. Johnson took Jordan to
the bathroom to rinse him off. Belmonte and Johnson sometimes used baby
4.
wipes when changing Jordan, but other times they washed him off in the
sink. While Johnson and Jordan were in the bathroom, Belmonte heard
Jordan cry, but this was not unusual, since Jordan did not like water. When
Johnson came back with Jordan, however, he was ‘frantic’ and said he had
burned Jordan. Belmonte could see that Jordan’s buttocks and genitals had
been burned; they were bright red.
“Belmonte wanted to take Jordan to the doctor, but Johnson said
they would lose the kids, he would go to jail, and he would kill her. They
argued, and Johnson hit Belmonte.
“They decided to go to a store to get something to treat the burns.
They went to a Walgreens and got some ointment, which they applied over
the next few days. Jordan cried when anything touched the burns, and after
a day or two they turned brown and then green. Belmonte gave Jordan
Tylenol or Motrin for pain, and she saw Johnson rub Vicodin on Jordan’s
gums. She also saw Johnson blowing marijuana smoke into Jordan’s
mouth. Belmonte never sought medical treatment for Jordan because
Johnson would not allow her to do so, though she asked many times.
“Belmonte testified that on November 9, 2010, the night before the
morning on which Jordan was found dead, Jordan was quieter than usual
and was moaning even when no one was touching him. They had argued
over the cost of diapers that day, and Johnson had hit Belmonte several
times and deliberately broken her cell phone. After they had run several
errands and eaten dinner, Belmonte was going to go out to another store.
Johnson became angry and said Belmonte could not leave. He grabbed her
hair, punched her, and pushed her into the bedroom. In the bedroom,
Johnson choked Belmonte until she was unconscious.
“When Belmonte regained consciousness, Jade was on top of her.
Belmonte heard Jordan crying. She went into the living room and saw
Johnson with Jordan. Johnson was holding Jordan upside down by one leg.
Belmonte tried to take Jordan from Johnson. Johnson ‘swung Jordan
backward and threw him on the bed.’ Jordan hit a couch and landed on a
bed beside it. Belmonte went toward Jordan, but Johnson picked him up
first. Johnson and Belmonte had a tug-of-war over a blanket. Johnson got
the blanket and wrapped Jordan in it. Belmonte tried to grab Jordan.
Johnson said Jordan would not shut up and punched him in the chest.
Johnson also attacked Belmonte and tried to choke her again. Jordan cried
after being punched, but then became quiet. Johnson put Jordan in a car
seat. Belmonte touched Jordan and saw that he was breathing. Belmonte
and Johnson continued arguing for a while and then fell asleep some time
after midnight. Belmonte woke up and checked on Jordan once during the
5.
night. She offered him a bottle, but he did not wake up. She took Jordan’s
temperature and found it to be 93.1, which she thought was normal.
“Belmonte and Johnson woke up in the morning, and after a while,
Johnson checked on Jordan and found he was nonresponsive. Belmonte
washed Jordan and put clean clothes on him. Johnson and Belmonte
argued about whether Jordan was breathing. Jordan continued to be
nonresponsive and Belmonte called 911. She administered CPR until the
ambulance came. Johnson took Jade into the bedroom and did not come
out while the emergency personnel were present. Belmonte went to the
hospital with Jordan in the ambulance.
“At the hospital, medical staff told Belmonte Jordan was dead.
Belmonte sent Johnson a text message and spoke to him by phone, telling
him to come to the hospital. He did not come until after Belmonte had left.
Belmonte was arrested the same day.
“Belmonte testified that she exchanged letters with Johnson while
they both were incarcerated after Jordan’s death. She said, ‘[In one] of the
first letters I got he asked me to take the case for him or he would take it all
the way to the box.’ She admitted that, in one of her letters to Johnson, she
graphically described their sex life. She testified that she was going to see
him soon when she wrote the letter and did it to discourage him from
threatening her as he had done at a previous court appearance.
“Belmonte denied that she hurt Jordan or did anything to assault him
physically.
“On cross-examination, Belmonte was impeached with a juvenile
adjudication for petty theft, a conviction of using stolen credit cards, a
conviction of writing checks with insufficient funds, and several lies she
told to county child welfare officials. She also admitted that, after she was
arrested, she made false statements to police about the apparent severity of
Jordan’s burns, the steps she took in response to the burns, and her living
arrangements. Further, she admitted she was ‘involved in a tax scam’ while
in custody.
“David Nelson, a paramedic who responded to Belmonte’s 911 call,
testified that when he arrived, Belmonte was ‘distraught’ and did not give a
‘straight answer’ when he asked what happened to Jordan. Fire Captain
Basil Rios testified that when he came to the scene, Belmonte was
screaming and did not give complete answers to his questions about what
happened to Jordan.
6.
“Terri Haynes, a police officer, testified that she was at the hospital
with Belmonte after Jordan was declared dead. Belmonte asked Haynes
whether Haynes thought Jordan died of sudden infant death syndrome.
Contrary to Nelson’s testimony, Haynes testified that the paramedics told
her Belmonte did not seem upset when they contacted her at the apartment.
Haynes also said she did not recall Belmonte showing emotion at the
hospital. But Haynes’s partner, Molly Hessler, testified that she also was
present at the hospital and that Belmonte appeared traumatized when
Jordan was declared dead.
“Detective Martin Heredia testified that he arrested Belmonte and
interviewed her a number of times. He spent about four hours with her.
During the interview, Belmonte initially said she did not live in the
apartment. She never told Heredia that Johnson threw or punched Jordan.
She did not even admit that Johnson was present when Jordan was injured
until one of the later interviews. At some point during Heredia’s
questioning, however, Belmonte did blame Johnson for the injuries and
burns that caused Jordan’s death.
“In September and October 2012, almost two years after Jordan’s
death, Belmonte was interviewed four times by Patricia Poeschel, an
investigator with the district attorney’s office. Poeschel testified that at
first, Belmonte did not say Johnson threw or punched Jordan and did not
mention any argument or fight she had had with Johnson. Poeschel
repeatedly told Belmonte she did not believe Belmonte was telling the
whole truth. Belmonte told Poeschel she did not know about Jordan’s
broken bones. Poeschel showed Belmonte x-ray pictures revealing the
broken bones. It was after this that Belmonte first said Johnson threw and
punched Jordan. Two of the interviews were recorded. A portion of the
recording was played for the jury and a transcript was provided. Poeschel
also testified that neither she nor the prosecutor ever threatened to take
Belmonte’s plea deal away because they did not believe she was telling the
whole truth.
“In the partial transcript of the interviews that is included in the
appellate record, Poeschel tells Belmonte she thinks Belmonte might be
hiding some of the facts to deny her own responsibility. She also says
Belmonte is protecting Johnson. Poeschel further suggests that Belmonte
knew Jordan had been hurt on the night he died, but then she left the
apartment, smoked marijuana and got drunk. Poeschel claims to have
spoken to inmate witnesses who supported this account. Belmonte says she
has been threatened and believes that if she provides information that will
result in a life sentence for Johnson, Johnson will cause her to be attacked
7.
or killed while in prison. Then she cries and begins giving an account
similar to the account in her testimony, starting with the time when she re-
enters the living room after being assaulted by Johnson in the bedroom and
sees Johnson holding Jordan upside down by one foot.
“Lonnie Richardson, a neighbor of Belmonte and Johnson, testified
that, in October 2010, she heard an argument between them through the
wall. She heard Johnson say, ‘Be the mother and get your [ass] in here and
take care of him before I beat the hell out of him.’
“Nada Yorke, a social worker, testified for the prosecution as an
expert on battered women’s syndrome (or intimate partner battering
syndrome, as it also is called). Among other things, Yorke said that abused
people often lie to conceal their situations from child welfare authorities in
an effort to keep their children out of foster care, especially if they were
placed in foster care as children themselves, as Belmonte was. Yorke also
said that the cycle of abuse can continue even when one or both parties to
an abusive relationship are in prison.
“A police officer testified that the temperature of the running water
in the apartment was checked. The hot water in the kitchen and the
bathroom reached 148 degrees within two minutes of being turned on. The
hot water heater was set on high.
“The defense called a witness who was sworn in as Allen Ladsky.
He said he was in jail in January 2011 in a cell next to Johnson’s cell, when
he overheard a conversation between Johnson and Belmonte. He heard
Belmonte tell Johnson ‘something like even if—no matter what, even
though I did [it], we’re both going to go down for it, or something of that
sort.’ Ladsky testified that he was present in court against his will and
believed Belmonte would use gang associates to retaliate against him. The
court had to order Ladsky to testify, telling him that if it ruled him in
contempt, it could keep him in custody until the end of the trial, which was
scheduled to last nearly three more weeks.
“An investigator named Daniel Stevenson with the district attorney’s
office testified that Ladsky told him he fabricated the story about
overhearing a conversation between Johnson and Belmonte. Ladsky said
he did this at Johnson’s request. Stevenson said Ladsky made this
statement after Stevenson told Ladsky that Stevenson could ‘go to bat’ for
Ladsky. Ladsky testified that he did indeed tell Stevenson he fabricated the
story; this was a lie; and he told Stevenson the lie hoping it would cause
Johnson’s counsel not to call Ladsky as a witness at trial so he could avoid
testifying and facing retaliation.
8.
“Ladsky was impeached with prior convictions of falsely identifying
himself to police, possessing drugs for sale, resisting arrest, and possessing
stolen property. He also said he was a former member of a white
supremacist gang, he had a swastika tattooed on his arm, and Allen Ladsky
was not his real name. Ladsky testified that he saw Belmonte’s face and
could pick her out of a lineup, but Stevenson testified that he showed
Ladsky a photo lineup including Belmonte, and Ladsky could not identify
her.
“The defense called Juan Garza, an investigator with the public
defender’s office, who testified that he spoke with Nelson, the paramedic,
in 2012. At that time, Nelson recalled that, when he responded to
Belmonte’s 911 call, Belmonte acted suspicious. She seemed nervous, her
account of events did not make sense, and she was not upset or crying.
“Detective Heredia, called back as a defense witness, testified that
when he interviewed Belmonte shortly after Jordan’s death, Belmonte did
not mention that Johnson assaulted her the night before. Heredia did not
see any signs of injury on Belmonte.
“Finally, Jeff Cameron, a deputy coroner, testified for the defense
that he saw and touched Jordan the morning Jordan was brought to the
hospital. Jordan was warm and not stiff. Cameron was not a medical
doctor.
“In her closing argument, the prosecutor presented several
alternative theories of murder to the jury. She said it could find first degree
murder by finding that Johnson picked Jordan up by one foot and then
threw and punched him, as Belmonte testified. When Johnson picked
Jordan up, he intended to kill Jordan and he had time to deliberate and
reflect on what he was doing. ‘I would argue to you that why else do you
throw and punch a 33-day-old baby,’ the prosecutor said.
“Next, the prosecutor explained that the jury could find second
degree murder in a number of different ways. It could find that Johnson
intended to kill Jordan but did not premeditate and deliberate. It also could
find that Johnson did not intend to kill Jordan—only to abuse or hurt him—
but inflicted the blows with conscious disregard for his life. Or it could
disbelieve Belmonte and find that she inflicted the beating, but could also
find that Johnson, being Jordan’s father and having a duty to protect him,
failed in this duty and did so with conscious disregard for Jordan’s life.
“On the second count, assault on a child under eight resulting in
death, the prosecutor told the jury it could find Johnson guilty if it found
9.
that Johnson inflicted the beating; that a reasonable person would think the
beating was likely to produce great bodily injury; that Jordan died from it;
and that Jordan was in Johnson’s care and custody.
“For the third count, child abuse, neglect or endangerment, the
prosecutor focused on the burns and the failure to get them treated. If
Jordan was in Johnson’s care and custody and the circumstances were
likely to cause great bodily injury, the jury could find Johnson guilty if it
believed Johnson willfully or with criminal negligence caused the burns
and failed to get treatment, or if it believed Belmonte inflicted the burns,
and Johnson willfully or with criminal negligence failed to get treatment.
The jury could find true the enhancement allegation for this count only if it
found that Johnson personally inflicted the burns on Jordan.
“The prosecutor also explained that the jury could find Johnson
guilty of any of the first three counts under a theory that he aided and
abetted Belmonte.
“Defense counsel, in his closing argument, urged the jury to find
Johnson not guilty of counts 1 and 2 and guilty of count 3, and to find the
enhancement allegation on count 3 not true. His theory was that Belmonte
inflicted both the beating and the burns as revenge against Johnson for
Johnson’s abuse of her and because of her animosity toward boys. When
Belmonte was beating Jordan to death, Johnson was asleep. Johnson was
guilty only of failing to get treatment for the burns. Defense counsel denied
that the burns were proved to be a substantial factor in causing Jordan’s
death.” (People v. Johnson, supra, F067359, fn. omitted.)
On February 16, 2011, the Kern County District Attorney filed an information
charging petitioner with first degree premeditated murder (§ 187, subd. (a); count 1),
custodial assault of a child under eight years of age, resulting in death (§ 273ab; count 2),
child endangerment with an enhancement for personal infliction of great bodily injury
(§§ 273a, subd. (a), 12022.7; count 3) and resisting arrest (§ 148, subd. (a)(1); count 4). 4
On April 9, 2013, a jury convicted petitioner on count 1 of the included offense of
second degree murder. The jury found petitioner guilty as charged on counts 2 through 4,
but found not true the great bodily injury enhancement to count 3.
4 Belmonte was charged as a codefendant in counts 1 through 3. She is not a party
to this appeal.
10.
On May 7, 2013, the trial court sentenced petitioner on count 2 to a term of
25 years to life, on count 3 to a consecutive, determinate term of six years, and on count 4
to a concurrent 30-day term. On count 1, the court imposed and stayed a sentence of
15 years to life (§ 654). Judgment was entered on May 9, 2013.
Petitioner appealed and, on March 17, 2015, this court affirmed the judgment
subject to conditions not relevant here. (People v. Johnson, supra, F067359.)
On February 14, 2019, petitioner, in propria persona, filed a petition for
resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a
complaint, information, or indictment was filed against him that allowed him to be
prosecuted under a theory of felony murder or murder under the natural and probable
consequences doctrine; he was convicted of first or second degree murder at trial; and he
could not now be convicted of first or second degree murder because of changes made to
sections 188 and 189, effective January 1, 2019.
On February 22, 2019, the court appointed counsel to represent petitioner on the
petition.
On March 1, 2019, the People filed a motion to dismiss the petition, arguing
section 1170.95 is unconstitutional. On February 10, 2020, the People filed an opposition
to the petition on the merits. Therein, the People argued petitioner was not convicted
pursuant to a felony murder theory or the natural and probable consequences doctrine.
The People specifically asserted that the jury was not instructed on the natural and
probable consequences doctrine, nor did the People argue this theory at trial. Petitioner,
through counsel, filed replies to both the motion to dismiss and the opposition.
On June 3, 2020, the court denied the petition. The court noted that, in
determining resentencing eligibility, the court was permitted to consider “the petition
itself, in addition to records of conviction that are readily available to the Court,”
including “the Abstract of Judgment, the Information or the charging documents, verdict
form, [and] the opinion authored by the Court of Appeal.” The court noted that it had
11.
considered those documents, as well as the jury instructions, and had “heard and [was]
very familiar with this case.” The court continued:
“The Court finds that the People did not proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine, as
the defendant was either the principal in the murder or his conduct directly
led to the death of the victim.”
On that basis, the petition was denied. This timely appeal followed.
DISCUSSION
I. Senate Bill No. 1437 (2017-2018 Reg. Sess.) and Section 1170.95
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “to amend
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).) The bill accomplished this task by adding three separate provisions to the
Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend
the natural and probable consequences doctrine, the bill added section 188, subdivision
(a)(3), which requires a principal to act with malice aforethought before he or she may be
convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842‒843.) Second, to
amend the felony-murder rule, the bill added section 189, subdivision (e):
“A participant in the perpetration or attempted perpetration of [qualifying
felonies] 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
12.
indifference to human life, as described in subdivision (d) of Section
190.2.”5 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill “added section 1170.95 to provide a procedure for those convicted of
felony murder or murder under the natural and probable consequences doctrine to seek
relief under the two ameliorative provisions above.” (Gentile, at p. 843.)
“Section 1170.95 lays out a process for a person convicted of felony murder or
murder under a natural and probable consequences theory to seek vacatur of his or her
conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, “an offender
must file a petition in the sentencing court averring 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, subds. (a)(1)˗(3); see also § 1170.95[,]
subd. (b)(1)(A).) Additionally, the petition shall state ‘[w]hether the petitioner requests
the appointment of counsel.’ (§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply
with subdivision (b)(1), ‘the court may deny the petition without prejudice to the filing of
another petition.’ (§ 1170.95, subd. (b)(2).)” (People v. Lewis (2021) 11 Cal.5th 952,
959‒960 (Lewis).)
Where the petition complies with the requirements of section 1170.95,
subdivision (b)(1), counsel must be appointed, if requested. The prosecutor must file a
response and the petitioner may file a reply. The trial court must then review the petition
5 Additionally, section 189 was amended to allow for felony-murder liability where
the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020)
57 Cal.App.5th 666, 672, review granted Feb. 24, 2021, S266336.)
13.
to determine if the petitioner has made a prima facie showing that he or she is entitled to
relief. (Lewis, supra, 11 Cal.5th at pp. 961‒963, 967; § 1170.95, subd. (c).) In making
this determination, the court may rely on the record of conviction. (Lewis, at pp. 970‒
971.) However, the prima facie inquiry is limited and, at this stage of the proceedings,
the court “should not engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (Id. at pp. 971‒972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder conviction and to resentence the petitioner on any remaining counts.
(§ 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must ‘prove, beyond a
reasonable doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95,
subd. (d)(3).) ‘The prosecutor and the petitioner may rely on the record of conviction or
offer new or additional evidence to meet their respective burdens.’ (Ibid.)” (Gentile,
supra, 10 Cal.5th at p. 853.)
To demonstrate prejudice from the denial of a section 1170.95 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972‒974; see People v. Watson
(1956) 46 Cal.2d 818, 836.)
II. The Trial Court Erred in Failing to Issue an Order to Show Cause
The trial court denied petitioner’s petition for resentencing on the ground that he
had not made a prima facie showing he was entitled to relief. Thus, the court did not
issue an order to show cause or conduct an evidentiary hearing. The People concede this
was error because neither the petition nor the record established that petitioner was
14.
indisputably ineligible for resentencing. 6 (See People v. Duchine (2021) 60 Cal.App.5th
798, 815 (Duchine) [“[A]bsent 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.”]; accord, Lewis, supra, 11 Cal.5th at
p. 971.)
The court found petitioner was ineligible for resentencing because he was not
prosecuted or convicted under the natural and probable consequences theory. However,
the record leaves room for doubt on this point. At trial, the jury was instructed on the
degrees of murder and different theories of murder, including express and implied malice,
deliberate and premeditated murder, unpremeditated murder of the second degree, and
second degree murder resulting from an unlawful act (or intentional failure to act), the
natural consequences of which are dangerous to life. The jury also was instructed on
general principles of aiding and abetting, as well as the possibility of finding petitioner
guilty of murder upon finding that he aided and abetted felony child endangerment, and
that murder was a natural and probable consequence of the commission of that crime.
The jury was further instructed on the elements of felony child endangerment and the
requirements for finding personal infliction of great bodily injury as to that crime.
The prosecutor argued to the jury that petitioner beat his son to death and,
alternatively, if Belmonte inflicted the fatal injuries, petitioner would be guilty as an aider
and abettor. One of the theories argued by the prosecutor was that petitioner would be
guilty of murder if he aided and abetted Belmonte in committing child endangerment, and
the natural and probable consequence of such crime was murder. The prosecutor also
argued petitioner would be guilty of murder if the jury concluded Belmonte burned the
infant and petitioner allowed the infant to go untreated, because the infant’s death would
6 Petitioner argues the court was limited to reviewing the petition itself, and could
not consider the record of conviction. Our Supreme Court recently held otherwise.
(Lewis, supra, 11 Cal.5th at pp. 970‒972.)
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be a natural and probable consequence of that negligence. In this regard, the prosecutor
argued: “If you don’t believe [Belmonte], you say, you know, she got that plea
agreement, she is a liar, she’s, you know, whatever, you can still find the defendant guilty
by aiding and abetting. The natural and probable consequences doctrine that I just went
over with you.”
Based on the foregoing, it is possible the jury convicted petitioner on the theory
that the infant’s murder was the natural and probable consequence of child
endangerment, which crime petitioner aided and abetted. We therefore cannot conclude,
as a matter of law, that petitioner is ineligible for resentencing relief. (Lewis, supra,
11 Cal.5th at pp. 971‒972; Duchine, supra, 60 Cal.App.5th at p. 815 [holding that, where
the record is not dispositive of factual issues, “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”].) The trial court erred in holding otherwise.
Because petitioner adequately alleged a prima facie claim for relief and the record
does not rebut his allegations as a matter of law, the court was required to issue an order
to show cause (§ 1170.95, subd. (c)), and to hold a hearing at which the prosecution bears
the burden of proving his ineligibility for resentencing relief beyond a reasonable doubt,
unless such hearing is waived (§ 1170.95, subd. (d)). The court erred in failing to follow
these procedures. Neither party argues the error was harmless, and we cannot say it is
reasonably probable the petition properly could have been denied without an evidentiary
hearing on any other basis. (Lewis, supra, 11 Cal.5th at pp. 972‒974; see People v.
Watson, supra, 46 Cal.2d at p. 836.) Accordingly, we must reverse.
III. The Standard of Review on Remand
The parties dispute the standard of review to be applied at the evidentiary hearing.
(§ 1170.95, subd. (d)(3).)
“At the hearing to determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the
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petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) However, courts are
split on what, precisely, this provision requires the prosecution to prove. To prove
ineligibility beyond a reasonable doubt, must the prosecution merely prove that a rational
jury could find the petitioner guilty of murder on a still-valid theory of liability? (See
People v. Duke (2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021, S265309
[“This is essentially identical to the standard of substantial evidence, in which the
reviewing court asks ‘ “whether, on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt....” ’ ”].) Or does section 1170.95,
subdivision (d)(3) require the trial court to serve as an independent factfinder, to whom
the prosecution must prove beyond a reasonable doubt that the petitioner is guilty of
murder on a still-valid theory? (See People v. Fortman (2021) 64 Cal.App.5th 217, 224‒
225, review granted July 21, 2021, S269228; People v. Lopez (2020) 56 Cal.App.5th 936,
949, review granted Feb. 10, 2021, S265974; People v. Clements (2021) 60 Cal.App.5th
597, 616‒618, review granted Apr. 28, 2021, S267624; People v. Rodriguez (2020)
58 Cal.App.5th 227, 241‒244, review granted Mar. 10, 2021, S266652; accord, Duchine,
supra, 60 Cal.App.5th at pp. 814‒815 [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” incomprehensible].)
Our Supreme Court has granted review to resolve this split in Duke. (People v.
Duke, supra, 55 Cal.App.5th at p. 123, review granted.) Additionally, the Legislature
recently passed, and the Governor signed, a bill which “[r]eaffirms that the proper burden
of proof at a resentencing hearing under [] section [1170.95] is proof beyond a reasonable
doubt.” (Sen. Bill No. 775 (2021-2022 Reg. Sess.) Stats 2021, ch. 551, § 1, subd. (c).)
Effective January 1, 2022, Senate Bill No. 775 amends section 1170.95, subdivision
(d)(3) to require the prosecution “to prove, beyond a reasonable doubt, that the petitioner
17.
is guilty of murder or attempted murder under California law as amended by the changes
to section 188 or 189 made effective January 1, 2019.” (Stats. 2021, ch. 551, § 2.)
Based on the foregoing, and consistent with the recent amendments to
section 1170.95, subdivision (c), we join the “growing chorus” of courts that require an
independent finding by the trial court, upon proof beyond a reasonable doubt, that the
petitioner is guilty of murder on a still-valid theory. (People v. Fortman, supra,
64 Cal.App.5th at p. 221.)
DISPOSITION
The June 3, 2020 order denying petitioner’s section 1170.95 petition is reversed.
On remand, the trial court is directed to issue an order to show cause and to conduct
further proceedings as required under section 1170.95, subdivision (d), in light of the
principles set forth herein.
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