Filed 2/14/22 P. v. Abdul-Malik CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B306876
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA045631)
v.
ZIMBABWE ABDUL-MALIK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Terry Lee Smerling, Judge. Reversed and
remanded with directions.
Marilee Marshall, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Rob Bonta,
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Amanda V. Lopez and Nicholas J. Webster, Deputy Attorneys
General, for Plaintiff and Respondent.
**********
In 2001, defendant and appellant Zimbabwe Abdul-Malik
was charged with murder (Pen. Code, § 187, subd. (a)) and
carjacking (§ 215, subd. (a)). Robbery and gang special
circumstance allegations were alleged as to the murder count
(§ 190.2, subd. (a)(17) & (22)). Firearm use and gang allegations
were alleged as to both counts (§ 12022.53, § 186.22). The
charges arose from an incident in December 2000, in which
defendant and two codefendants confronted the victim while he
was parked in his car in the driveway of his mother’s home. An
altercation ensued during which the victim was fatally shot. The
victim’s car was stolen and found crashed into a pole a short
distance away. (People v. Devore (Mar. 21, 2006, B170095)
[nonpub. opn.].)
The jury found defendant guilty of murder and carjacking.
They found not true the special circumstance allegations and the
allegations defendant personally used a firearm. The jury found
true the gang allegation and the allegation that a principal used
a firearm in the commission of the offenses. The trial court
sentenced defendant to an indeterminate term of 50 years to life.
In 2006, in an unpublished decision, we affirmed
defendant’s conviction and ordered correction of the abstract of
judgment to reflect defendant’s minimum parole eligibility was
15 years and not 25 years and that the firearm use enhancement
was pursuant to Penal Code section 12022.53, subdivision (e)(1).
(People v. Devore, supra, B170095.)
In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was
passed. Penal Code section 1170.95 was enacted as part of the
legislative changes effected by Senate Bill 1437 and became
effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
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Defendant filed in propria persona his petition for
resentencing pursuant to Penal Code section 1170.95
(erroneously titled petition for writ of habeas corpus), requesting
resentencing on the grounds he was convicted of murder under a
felony murder theory. The court appointed counsel for defendant
and received briefing.
At a hearing on July 27, 2020, defendant was present and
represented by appointed counsel. No new evidence was
presented. The court entertained argument from the parties on
the briefing alone and denied defendant’s petition, explaining
there was sufficient evidence to conclude that reckless
indifference and, to a lesser extent, aiding and abetting remained
viable theories upon which defendant could be guilty of murder.
Defendant appealed.
In our original unpublished decision, we reversed and
remanded with directions to the superior court to issue an order
to show cause and conduct an evidentiary hearing pursuant to
Penal Code section 1170.95, subdivision (d)(3). (People v. Abdul-
Malik (June 8, 2021, B306876) [nonpub. opn.].) We directed the
superior court, at the evidentiary hearing, to act as an
independent fact finder and apply the beyond a reasonable doubt
standard of proof in assessing defendant’s liability for murder
under current law.
Respondent did not oppose a remand for purposes of the
court conducting an evidentiary hearing but opposed the
applicability of the beyond a reasonable doubt standard.
Respondent filed a petition for review asking the Supreme Court
to grant review and defer briefing because this case raised the
same issue then pending before the Court, that is, whether the
trial court, during an evidentiary hearing under Penal Code
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section 1170.95, acts as an independent fact finder or reviews the
record for substantial evidence. On August 11, 2021, the
Supreme Court granted respondent’s petition.
In October 2021, the Legislature passed Senate Bill 775
(2021–2022 Reg. Sess.) which, among other things, amended the
language of Penal Code section 1170.95, subdivision (d)(3).
(Stats. 2021, ch. 551, § 2.)
On December 22, 2021, the Supreme Court transferred this
case to us with directions to vacate our decision and reconsider
the matter in light of the passage of Senate Bill 775. Having
vacated our original decision and reconsidered the issues
presented in light of the new legislation, we again reverse and
remand with directions to the superior court to issue an order to
show cause and conduct an evidentiary hearing in accordance
with Penal Code section 1170.95, subdivision (d)(3), as amended.
DISCUSSION
In amending the law regarding vicarious murder liability,
Senate Bill 1437 created a specific procedure “for retroactive
application of its ameliorative provisions. [Penal Code]
[s]ection 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.” (People v. Gentile (2020) 10 Cal.5th 830, 853
(Gentile).)
There is no dispute here that defendant’s murder
conviction falls within the purview of Penal Code section 1170.95.
Respondent concedes the jury was instructed on felony murder
liability and that the jury found defendant did not personally use
a firearm in the commission of the murder.
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Respondent also concedes, both in the original briefing and
the supplemental brief filed postremand, that defendant made a
prima facie showing of eligibility for relief, that defendant’s
ineligibility could not be established as a matter of law and that
the trial court therefore erred in not issuing an order to show
cause in accordance with Penal Code section 1170.95 and holding
an evidentiary hearing pursuant to subdivision (d)(3).
We agree. Because the record of conviction here does not
establish as a matter of law that defendant is ineligible for relief,
an evidentiary hearing should be conducted. (Pen. Code,
§ 1170.95, subd. (c).)
In light of the amendments to Penal Code section 1170.95
effected by the passage of Senate Bill 775 in October 2021 while
this matter was pending in the Supreme Court, respondent now
also concedes the relevant standard of proof to be followed by the
trial court on remand is beyond a reasonable doubt.
Among other things, Senate Bill 775 amended and clarified
the procedures governing an evidentiary hearing conducted
pursuant to Penal Code section 1170.95, subdivision (d)(3).
“[T]he 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
changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (d)(3).) The new text provides that a prior
“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.” (Ibid.)
The amendments also expand on the consideration of
evidence at the hearing, during which both sides may “offer new
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or additional evidence to meet their respective burdens.” (Pen.
Code, § 1170.95, subd. (d)(3).) The amended statute provides, in
relevant part, that “[t]he admission of evidence in the hearing
shall be governed by the Evidence Code, except that the court
may consider evidence previously admitted at any prior hearing
or trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed.
The court may also consider the procedural history of the case
recited in any prior appellate opinion.” (Ibid.)
Accordingly, on remand, the trial court shall issue an order
to show cause and conduct an evidentiary hearing pursuant to
Penal Code section 1170.95, subdivision (d)(3), as amended by
Senate Bill 775. At the evidentiary hearing, the trial court shall
act as an independent fact finder and apply the beyond a
reasonable doubt standard of proof. (See also Gentile, supra,
10 Cal.5th at p. 855 [“section 1170.95 requires the superior court
to determine on an individualized basis, after considering any
new or additional evidence offered by the parties, whether the
defendant is entitled to relief”].)
Finally, defendant argues we may order the trial court to
skip the evidentiary hearing and proceed to resentencing in light
of the jury’s not true finding on the special circumstance
allegation. Respondent contends the issue is not properly before
us given the scope of the Supreme Court’s transfer order and that
if we do consider it, we should once again reject it as we did in
our original decision. We decline to issue the order requested by
defendant.
DISPOSITION
The order denying defendant’s resentencing petition is
reversed and the case remanded to the superior court to issue an
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order to show cause and conduct an evidentiary hearing pursuant
to Penal Code section 1170.95, subdivision (d)(3), as amended.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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