This post:
SB 1437, Which Amended the Natural and Probable Consequences Doctrine as It Relates to Murder, Bars a Conviction for Second Degree Murder Under That Theory December 23rd, 2020
discusses People v. Gentile (2020) 10 Cal.5th 830, 842 which barred a conviction for second degree murder under the natural and probable consequences theory. Gentile also held that the procedure set forth in PC 1170.95 is the exclusive mechanism for retroactive relief and thus the ameliorative provisions of SB 1437 do not apply to nonfinal judgments on direct appeal.
However, a number of post-Gentile issues are still pending in the CSC concerning SB 1437.
See this post
Two Issues Regarding Accomplice Liability for Attempted Murder Currently Before the CSC March 17th, 2020
discussing People v. Lopez, S258175. (B271516; 38 Cal.App.5th 1087; rev. gtd.11/13/2019 in which the CSC granted review to consider the following issues: (1) Does Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to attempted murder liability under the natural and probable consequences doctrine? (2)In order to convict an aider and abettor of attempted willful, deliberate and premeditated murder under the natural and probable consequences doctrine, must a premeditated attempt to murder have been a natural and probable consequence of the target offense? In other words, should People v. Favor (2012) 54 Cal.4th 868 be reconsidered in light of Alleyne v. United States(2013) 570 U.S. 99 and People v. Chiu(2014) 59 Cal.4th 155?
See also People v. Lewis, S260598. (B295998; 43 Cal.App.5th 1128; rev. gtd. 3/18/2020.) Review limited review to the following issues: (1)May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2)When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)?
See also, People v. Carney, S260063. (C077558; nonpublished opinion; rev. gtd.3/25/2020.) Review limited to the following issues: (1) Does the “substantial concurrent causation” theory of liability of People v. Sanchez (2001) 26 Cal.4th 834 permit a conviction for first degree murder if the defendants did not fire the shot that killed the victim? (2)What impact, if any, do People v. Chiu (2014) 59 Cal.4th 155 and Senate Bill No. 1437 (Stats. 2018, ch. 1015, §1, subd. (f)) have on the rule of Sanchez?
See also People v. Strong, S266606. (C091162; nonpublished opinion; rev. gtd. 3/10/2021.) Review granted to consider the following issue: Does a felony-murder special circumstance finding (Pen.Code,§190.2, subd. (a)(17)) made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 preclude a defendant from making prima facie showing of eligibility for relief under Penal Code section 1170.95?
See also, People v. Harris. S267802. (B300410; 2/16/21; C/A 2nd, Div. 7; rev. gtd. 3/21/2021.) Briefing deferred pending decision in People v. Lewis, S260598, which presents the following issues: (1) May superior courts consider the record of conviction in determining whether a defendant has made a prima facie showing of eligibility for relief under Penal Code section 1170.95? (2) When does the right to appointed counsel arise under Penal Code section 1170.95, subdivision (c)? and pending decision in People v. Strong, S266606, which presents the following issue: Does a felony-murder special circumstance finding (Pen. Code, § 190.2, subd. (a)(17)) made before People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 preclude a defendant from making a prima facie showing of eligibility for relief under Penal Code section 1170.95?
NOTE: Harris presents three issues.
First, what can the judge look at to determine initial eligibility sufficient to issue an Order to Show Cause (OSC) for an inmate seeking release? One line of cases says that PC 1170.95 means that the inmate’s allegations that he’s eligible require issuance of an OSC. Another line says that the court should examine the record of conviction such as the accusatory pleading, the verdict forms, and the abstract of judgment), and can deny the initial petition if that documentation shows that the inmate isn’t eligible. Harris agreed with the latter line of cases.
Second, Harris considered the viability of the trial court’s ruling that the finding of a special circumstance established that this defendant was a major participant in the underlying felony, thereby rendering him ineligible for SB 1437 relief. The court of appeal concluded that since , the definition of “major participant” was significantly narrowed in Banks (61 C4th 788) and Clark (63 C4th 522) which were issued after the conviction in this case there has been no proper finding that the defendant was a major participant as that term is now defined.
Third, some courts have required the defendant to file a habeas corpus petition back in the court where he was convicted, raising the Banks and Clark major participant/reckless indifference issue, as a prerequisite to relief under SB 1437. The Harris court disagreed.
