Filed 1/27/22 P. v. Fortman CA2/2
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B304567
Plaintiff and Respondent, (Los Angeles County
Super. Ct. Nos. 319016,
v. 319060)
PHILLIP CHARLES
FORTMAN, OPINION ON REMAND
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James D. Otto, Judge. Reversed and remanded.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Scott A. Taryle and Idan
Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
******
Phillip Charles Fortman (defendant), who was convicted of
first degree murder, appeals from the denial of his petition for
resentencing under Penal Code section 1170.95.1 In our original
opinion we reversed the trial court’s order denying his petition
and remanded the matter for a new evidentiary hearing at which
the People were required to prove to the trial court beyond a
reasonable doubt that defendant was the actual killer, aided and
abetted the actual killer with the intent to kill, or was a major
participant who acted in reckless disregard for human life.
(People v. Fortman (May 13, 2021, B304567), previously
published at People v. Fortman (2021) 64 Cal.App.5th 217
(Fortman II).) The California Supreme Court granted review on
July 21, 2021, and, in an order filed December 22, 2021,
transferred the case back to this court with directions
to vacate our prior decision and reconsider in light of Senate Bill
No. 775 (Senate Bill 775) (2020-2021 Reg. Sess.; Stats. 2021, ch.
551).
It is therefore ordered that the previous opinion and
decision (Fortman II) filed in this case is vacated. Upon
reconsideration in light of Senate Bill 775, we again conclude
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
that the trial court erred in denying defendant’s petition. We
accordingly remand the matter for a new evidentiary hearing
pursuant to section 1170.95, subdivision (d)(3).
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The underlying crime
On the last Saturday in January 1966, defendant and Tim
Hartman (Hartman) used the $4 they had earned that day
soliciting contributions at the Purple Heart Veteran’s Service to
buy themselves cigarettes and cheap wine. While drunk, they
saw an elderly man on the street and decided to “roll him” (that
is, to take what money he had). They viciously attacked him by
repeatedly punching and kicking him, and then turned out his
pockets and discovered he had no money. The man died from his
injuries a few days later.
B. Charging, conviction and appeal
The People charged defendant and Hartman with (1)
murder (§ 187), and (2) attempted second degree robbery (§ 211).
The jury was instructed that each defendant could be liable for
murder (1) as a person who acted with malice (that is, as the
actual killer or a person who, with intent to kill, aided and
abetted the actual killer), or (2) on a felony-murder theory (that
is, on the theory that they jointly committed the felony of robbery
and thus were jointly liable for the murder resulting from that
robbery), or (3) on a natural and probable consequences theory
(that is, on the theory that they aided and abetted one another to
commit robbery and are jointly liable for a murder that is the
“ordinary and probable effect of the pursuit of” the robbery). The
jury convicted defendant (and Hartman) of first degree murder
and attempted second degree robbery. The court sentenced
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defendant to life in prison for the murder and imposed a
suspended sentence on the attempted robbery. We affirmed
defendant’s convictions and sentence in a published decision.
(People v. Fortman (1967) 257 Cal.App.2d 45 (Fortman I).)
II. Procedural Background
On January 14, 2019, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes for the allegations that he had been
charged with murder, that he was convicted “pursuant to the
felony murder rule or the natural and probable consequences
doctrine,” and that his murder conviction would be invalid under
the “changes made to Penal Code §§ 188 and 189, effective
January 1, 2019.” The People opposed the petition on the ground
that (1) section 1170.95 is unconstitutional, and (2) defendant is
ineligible for relief as a matter of law because he (a) was the
actual killer, (b) directly, and with the intent to kill, aided and
abetted the actual killer, or (c) was a major participant who acted
with reckless indifference to human life. After receipt of
defendant’s reply, the court convened a “hearing” at which it
ruled that defendant was “ineligible” for relief under section
1170.95 because, “based on the record of conviction,” defendant
“could have been very well . . . convicted under [the] theories of
murder that[ have] continued to exist after the passage of SB
1437.”2
2 Although the trial court hedged on whether the purpose of
the hearing was to determine whether to issue an order to show
cause (OSC) or instead to assess whether defendant was eligible
for resentencing following the entry of an OSC, the court’s
ultimate finding of defendant’s ineligibility for relief indicates
that it was the latter. (Accord, People v. Gentile (2020) 10 Cal.5th
830, 853 (Gentile) [purpose of post-OSC hearing is to “determine
4
Defendant timely appealed, and we reversed the order
denying the petition. The Court of Appeal was split regarding
the standard of proof at section 1170.95 evidentiary hearings and
in our opinion we sided with the majority view requiring the
People to prove every element of liability for murder under the
amended statutes beyond a reasonable doubt.3 The Attorney
General petitioned for review in the Supreme Court. The
Supreme Court granted review; transferred the matter back to
this court; and directed us to vacate our prior decision
and reconsider in light of Senate Bill 775. (Stats. 2021, ch. 551.)
Following the transfer, the Attorney General and defendant
submitted supplemental briefs addressing the impact of Senate
Bill 775 on this case.
DISCUSSION
In his supplemental brief, the Attorney General concedes
that reversal and remand for a new hearing under the correct
standard is appropriate. We agree.
Section 1170.95 sets forth a two-step procedure. In the first
step, the petitioner seeking to vacate a murder conviction must
make a “prima facie showing” of entitlement to relief by
establishing that (1) the conviction was based on a charging
document that “allowed the prosecution to proceed under a theory
whether to vacate the murder conviction” or whether the
petitioner is “ineligible” for such relief].)
3 The minority view obligated the People only to show that
substantial evidence in the record supported a finding of liability
under a still-valid theory of murder. (People v. Duke (2020) 55
Cal.App.5th 113, review granted Jan. 13, 2021, S265309, judg.
vacated and cause remanded Nov. 23, 2021, for reconsideration in
light of Sen. Bill 775.)
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of felony murder[ or] murder under the natural and probable
consequences theory,” (2) the petitioner was convicted of murder,
and (3) the petitioner “could not presently be convicted of murder
. . . because of [the] changes” made by Senate Bill 1437 to the
statutes defining murder. (§ 1170.95, subds. (a), (c).) If this first
step is met, the second step is for the trial court to issue an order
to show cause and convene a hearing “to determine whether the
petitioner is entitled to relief” under section 1170.95; at that
hearing, the prosecution bears “the burden” of “prov[ing], beyond
a reasonable doubt” that the petitioner is ineligible for section
1170.95 relief. (Id., subd. (d)(1) & (3).) At that hearing, the
prosecutor and petitioner may “offer new or additional evidence
to meet their respective burdens.” (Id., subd. (d)(3).)
The original text of section 1170.95 subdivision (d)(3) was
ambiguous because it did not expressly define when a petitioner
is “ineligible,” i.e., what showing the prosecution must make in
order to “prove beyond a reasonable doubt” that the petitioner is
not entitled to relief under that section. One of the purposes of
Senate Bill 775 was to “specify that a finding that there is
substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.” (Legis. Counsel’s Dig., Sen. Bill 775 (2021-2022
Reg. Sess.).)
Senate Bill 775 took effect on January 1, 2022. It amended
section 1170.95, subdivision (d)(3), to state in pertinent part:
“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 petitioner is guilty of murder
or attempted murder under California law as amended by the
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changes to Section 188 or 189 made effective January 1, 2019. . . .
A finding that there is substantial evidence to support a
conviction for murder, attempted murder, or manslaughter is
insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3),
as amended by Stats. 2021, ch. 551, eff. Jan. 1, 2022.)
The trial court in this case applied a substantial evidence
standard, finding defendant “could have been very well . . .
convicted under [the] theories of murder that[ have] continued to
exist after the passage of [Senate Bill] 1437.” As we previously
stated in Fortman II, the People are required to prove to the trial
court beyond a reasonable doubt that the petitioner is guilty of
murder on a theory of murder valid after Senate Bill 1437’s
enactment. Because the trial court in this case did not apply this
heightened standard, we reverse its order and remand for a new
hearing under the correct standard.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed, and the matter remanded for a new evidentiary hearing
pursuant to section 1170.95, subdivision (d)(3), as amended by
Senate Bill 775.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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