57 Cal.App.5th 604
Cal. Ct. App.2020Background:
- In 1993 Swanson and an accomplice robbed a Long Beach gas station, assaulted the pregnant victim Rosa, and Swanson gratuitously fired a gun at the victims as they fled.
- The station owner, Ruben Garcia, chased and fired at the robbers; Chapple (Swanson’s accomplice) was killed by Garcia’s bullets.
- Swanson was convicted of first‑degree murder (provocative act doctrine), assault with a firearm, and multiple robberies; sentenced to 32 years to life.
- SB 1437 (2018) added Penal Code §1170.95, allowing petitions to vacate felony‑murder or natural‑and‑probable‑consequences murder convictions and seek resentencing.
- Swanson filed a §1170.95 petition claiming he was convicted under felony‑murder; the trial court construed it under §1170.95, denied relief without appointing counsel, finding the conviction was for provocative act murder, not felony‑murder or natural‑and‑probable‑consequences murder.
- The Court of Appeal affirmed, holding provocative‑act murder requires personal malice and thus is not covered by §1170.95; no prima facie showing, so no appointed counsel was required at that stage.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1170.95 applies to provocative‑act murder | Swanson: provocative‑act murder is a form of natural‑and‑probable‑consequences or otherwise covered by §1170.95 | People: provocative‑act murder requires proof of the defendant’s malice and is not the malice‑free theories targeted by SB 1437 | Not applicable: provocative‑act murder requires personal malice, so §1170.95 inapplicable |
| Whether first‑degree provocative‑act murder is felony murder for §1170.95 | Swanson: first‑degree provocative act is "inextricably intertwined" with felony‑murder, so SB 1437 applies | People: elevation of degree under §189 does not convert provocative‑act murder into felony‑murder for §1170.95 purposes | Not felony‑murder: degree elevation under §189 does not make the conviction a §1170.95 felony‑murder conviction |
| Whether counsel must be appointed before prima facie showing | Swanson: court erred by denying counsel and an evidentiary process before full review | People: appointment of counsel attaches only after petitioner makes a prima facie showing | No error: right to counsel under §1170.95 arises only after prima facie showing; none here |
Key Cases Cited
- People v. Gilbert, 63 Cal.2d 690 (Cal. 1965) (establishes provocative‑act murder doctrine)
- People v. Gonzalez, 54 Cal.4th 643 (Cal. 2012) (provocative‑act murder requires proof of defendant’s malice)
- People v. Chiu, 59 Cal.4th 155 (Cal. 2014) (explains natural‑and‑probable‑consequences aider‑and‑abettor liability)
- People v. Sanchez, 26 Cal.4th 834 (Cal. 2001) (provocative‑act murders may be elevated to first degree under §189 principles)
- People v. Roberts, 2 Cal.4th 271 (Cal. 1992) (proximate cause and natural/probable consequence analysis in homicide cases)
- People v. Medina, 46 Cal.4th 913 (Cal. 2009) (foreseeability standard for natural and probable consequences)
- People v. Washington, 62 Cal.2d 777 (Cal. 1965) (felony‑murder requires killing committed in perpetration of the felony)
- People v. Mejia, 211 Cal.App.4th 586 (Cal. Ct. App. 2012) (discusses implied malice in provocative‑act doctrine)