49 Cal.App.5th 254
Cal. Ct. App.2020Background
- In 1994 robbery of a video store, Lee and accomplices pointed guns, forced employees to the back, beat them, and stole cash and property; during getaway Choi (an accomplice) and Lee pointed guns at security guard Agustin Nolasco. Nolasco fired, killing Choi; Lee fled while shooting and was later tried.
- Lee was convicted at jury trial of first‑degree murder (based on the provocative‑act doctrine), attempted murder, robberies, and related enhancements; his 1996 appeal affirmed the convictions.
- In February 2019 Lee filed a Penal Code § 1170.95 petition asserting he was convicted under felony murder or the natural‑and‑probable‑consequences theory and could not now be convicted under changes enacted by Senate Bill No. 1437.
- The trial court denied the petition after reviewing the record (including the court of appeal’s 1996 opinion), finding Lee was convicted under the provocative‑act doctrine, which requires malice, and thus ineligible for § 1170.95 relief.
- On appeal the Court of Appeal affirmed: Lee’s conviction was for provocative‑act murder (malice required), not felony murder or natural‑and‑probable‑consequences murder, so SB 1437 and § 1170.95 do not entitle him to resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly considered the record of conviction at the prima facie stage of a § 1170.95 petition | People: The court may review the record of conviction (including the prior appellate opinion) to determine whether the petitioners made a prima facie showing and may deny when the record shows ineligibility | Lee: did not meaningfully contest record consideration (he asked the court to take judicial notice of the 1996 opinion but did not argue counsel timing or that record review was improper) | Court follows existing appellate authority (Lewis and related cases) and affirms that the record may be considered at the prima facie stage; no error in relying on the 1996 opinion here |
| Whether Lee is eligible for relief under § 1170.95 (i.e., was he convicted under felony murder or natural‑and‑probable‑consequences theories) | People: Lee was convicted under the provocative‑act doctrine, which requires proof of malice, so he is ineligible for § 1170.95 relief | Lee: Claims he did not initiate the gun battle and was instead an aider/abettor convicted under a felony‑murder or natural‑and‑probable‑consequences theory and thus could not be convicted under current law | Court rejects Lee’s reading of the record: his conviction was for provocative‑act murder (malice found); SB 1437 and § 1170.95 therefore do not apply; petition denial affirmed |
Key Cases Cited
- People v. Gonzalez, 54 Cal.4th 643 (distinguishing provocative‑act murder from felony murder and explaining malice requirement)
- People v. Concha, 47 Cal.4th 653 (explaining proximate causation and malice in provocative‑act murder)
- People v. Gilbert, 63 Cal.2d 690 (use of § 189 in determining degree of murder once murder is established)
- People v. Washington, 62 Cal.2d 777 (limitations of felony‑murder when a third party kills an accomplice)
- People v. Mejia, 211 Cal.App.4th 586 (defining provocative‑act doctrine and its elements)
- People v. Powell, 5 Cal.5th 921 (describing felony‑murder rule pre‑SB 1437)
- People v. Lopez, 38 Cal.App.5th 1087 (explaining elimination of natural‑and‑probable‑consequences liability for murder)
- People v. Lewis, 43 Cal.App.5th 1128 (approach permitting record review at the prima facie stage of § 1170.95 petitions)