Filed 3/2/22 P. v. Jackson CA2/7
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B296340
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA020015)
v.
ARTHUR DUANE JACKSON,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Laura L. Laesecke, Judge. Reversed and
remanded with directions.
Sally Patrone Brajevich, 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, Senior Assistant Attorney General, Jason Tran,
Supervising Attorney General, and Shezad H. Thakor, Deputy
Attorney General, for Plaintiff and Respondent.
______________________________
Arthur Duane Jackson, convicted in 1994 of attempted
murder and carjacking, appealed the summary denial of his
petition for resentencing under Penal Code section 1170.95,1
contending the superior court had erred in ruling section 1170.95
did not apply to attempted murder and denying his petition
without appointing counsel and conducting a hearing at which
the parties could present evidence. We affirmed the order based
on prior decisions from this and other courts of appeal that had
rejected identical arguments.
After granting Jackson’s petition for review, the Supreme
Court transferred the case to us with directions to vacate our
prior decision and reconsider Jackson’s appeal in light of Senate
Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775) and People v.
Lewis (2021) 11 Cal.5th 952 (Lewis). In supplemental briefing
Jackson again argues the case should be remanded for the
superior court to appoint counsel, issue an order to show cause
and conduct an evidentiary hearing. The Attorney General
agrees in part, contending on remand the superior court should
appoint counsel for Jackson and conduct proceedings pursuant to
section 1170.95, subdivision (c), to determine whether Jackson
has made a prima facie case for relief, and, if he has, to issue an
order to show cause. We agree with the Attorney General,
reverse the order denying Jackson’s petition and remand with
directions to appoint counsel and proceed in accordance with
section 1170.95, subdivision (c).
1 Statutory references are to this code.
2
FACTUAL AND PROCEDURAL BACKGROUND
Jackson was convicted following a jury trial in December
1994 of attempted willful, deliberate and premeditated murder
and carjacking with a true finding he had personally used a
firearm when committing the offenses. The court sentenced
Jackson to an indeterminate life term in state prison.
On appeal we corrected a sentencing error but otherwise
affirmed Jackson’s judgment of conviction, as well as the
judgment of conviction of Jackson’s codefendant, John Holani.
(People v. Jackson (Jan. 17, 1996, B090217).)2 Our opinion’s
description of the underlying facts indicated both Jackson and
Holani displayed firearms when robbing a tow truck driver who
had been called to tow their disabled car, but it was Holani who
ordered the driver out of the car and then shot him as he lay on
the ground.
In January 2019 Jackson petitioned for resentencing
pursuant to section 1170.95 and requested the court appoint
counsel for him during the resentencing process. In his petition
Jackson declared under penalty of perjury, “At trial, I was
convicted of 1st or 2nd degree attempted murder pursuant to the
felony [murder] rule or the natural and probable consequences
doctrine.” The court summarily denied the petition on
February 6, 2019, ruling, “[S]ection 1170.95 applies to murder,
not attempted murder. Therefore, Petitioner does not qualify for
resentencing.” In its minute order the court noted Jackson was
not present in court and was not represented by counsel.
Jackson filed a timely notice of appeal.
2 Our opinion was originally published. The Supreme Court
granted review (Mar. 28, 1996, S051863) and then dismissed
review (Oct. 23, 1996) without directions to publish the decision.
3
DISCUSSION
1. Senate Bill No. 1437, Senate Bill 775 and the
Section 1170.95 Petition Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437) substantially modified the law
relating to accomplice liability for murder, eliminating the
natural and probable consequences doctrine as a basis for finding
a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th
830, 842-843) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e); see Lewis, supra, 11 Cal.5th at p. 957.)
It also authorized, through new section 1170.95, an individual
convicted of felony murder or murder based on the natural and
probable consequences doctrine to petition the sentencing court to
vacate the conviction and be resentenced on any remaining
counts if he or she could not now be convicted of murder because
of Senate Bill 1437’s changes to the definitions of the crime.
(See Lewis, at p. 957; Gentile, at p. 843.) As amended by Senate
Bill 775, effective January 1, 2022, these ameliorative changes to
the law now expressly apply to attempted murder and voluntary
manslaughter.
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief (§ 1170.95, subd. (b)(1)(A)), the court must
appoint counsel to represent the petitioner, if requested
(§ 1170.95, subd. (b)(3)),3 and direct the prosecutor to file a
response to the petition, permit the petitioner to file a reply and
3 Prior to enactment of Senate Bill 775 the requirement to
appoint counsel was set forth in subdivision (c) of section 1170.95.
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determine if the petitioner has made a prima facie showing that
he or she is entitled to relief. (§ 1170.95, subd. (c); see Lewis,
supra, 11 Cal.5th at pp. 962-963.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder, attempted murder or manslaughter conviction and
resentence the petitioner on any remaining counts. (§ 1170.95,
subd. (d)(1).) At the hearing the prosecutor has the burden of
proving, “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 court may consider evidence
previously admitted at any prior hearing or trial “that is
admissible under current law,” including testimony and
stipulated evidence. (Ibid.) The petitioner and the prosecutor
may also offer new or additional evidence. (Ibid.)
2. Remand Is Necessary for the Superior Court To Appoint
Counsel and Conduct a Hearing To Determine Whether
Jackson Has Made a Prima Facie Case for Relief
Under Lewis, supra, 11 Cal.5th 952, decided a year after
our original decision affirming the order summarily denying
Jackson’s petition for resentencing, once a petitioner files a
facially sufficient petition under section 1170.95 and requests
appointment of counsel, the superior court must appoint counsel
before performing any prima facie review under section 1170.95,
subdivision (c). (Lewis, at p. 963 [“petitioners who file a
complying petition requesting counsel are to receive counsel upon
filing of a compliant petition”].) And among other changes,
Senate Bill 775 amended section 1170.95, subdivision (a), to
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expressly permit relief for petitioners convicted of “attempted
murder under the natural and probable consequences doctrine” if
they could not now be convicted of attempted murder because of
changes to sections 188 and 189 effected by Senate Bill 1437. In
light of Lewis and Senate Bill 775, it was error to summarily
deny Jackson’s petition for resentencing relief.
Although the superior court may not engage in judicial
factfinding or make credibility decisions prior to issuing an order
to show cause, under Lewis, supra, 11 Cal.5th at page 971, “[t]he
record of conviction will necessarily inform the trial court’s prima
facie inquiry under section 1170.95, allowing the court to
distinguish petitions with potential merit from those that are
clearly meritless.” Because the superior court summarily denied
Jackson’s petition without first inviting briefing from the
prosecutor or Jackson’s appointed counsel, transcripts and other
material from Jackson’s trial were not submitted to the court and
are not in the record on appeal now before us. Accordingly, the
case is properly remanded to the superior court for proceedings
pursuant to section 1170.95, subdivision (c), to determine
whether anything in the record of conviction establishes
Jackson’s ineligibility for relief as a matter of law.4 If not, the
court must issue an order to show cause and hold an evidentiary
4 Although Jackson argues he made the required prima facie
showing, relying on the absence in the record of anything refuting
the statements in his declaration that he was entitled to relief,
elsewhere in his supplemental brief he acknowledges that, “under
Lewis, remand is necessary for the trial court to appoint counsel
[and] review the record of conviction to determine if appellant has
made a prima facie case . . . .”
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hearing pursuant to section 1170.95, subdivision (d), as amended
by Senate Bill 775.5
DISPOSITION
The postjudgment order denying Jackson’s petition for
resentencing is reversed. The matter is remanded for the
superior court to appoint counsel; to hold a hearing to determine
whether Jackson has made a prima facie case for relief; and, if he
has, to issue an order to show cause and hold an evidentiary
hearing applying the standard of proof and evidentiary rules as
set forth in section 1170.95, subdivision (d)(3).
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
5 Jackson’s contention the superior court violated his federal
due process rights by failing to appoint counsel was rejected by
the Supreme Court in Lewis, supra, 11 Cal.5th at p. 973 [“a
petitioner is not constitutionally entitled to counsel at the outset
of the subdivision (c) stage of the section 1170.95 petitioning
process”].) We need not address his related assertion he had a
constitutional right to a hearing once he filed a facially compliant
petition in light of our recognition of that right as a matter of
state law.
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