44 Cal.App.5th 320
Cal. Ct. App.2020Background
- SB 1437 (effective Jan 1, 2019) narrowed felony-murder and natural-and-probable-consequences liability and created Penal Code §1170.95, permitting petitions to vacate qualifying murder convictions and request resentencing.
- Section 1170.95 requires a petition containing specified information, authorizes the court to review the petition for facial sufficiency, and directs a two-step prima facie review before issuing an order to show cause; appointment of counsel is triggered if requested after the initial review.
- Nick Verdugo, convicted in 2006 of first-degree murder and related counts (sentence ~57 years to life), filed a §1170.95 petition in Jan 2019 using a form that checked boxes asserting eligibility and requesting counsel; he attached draft jury instructions from his trial.
- The superior court summarily denied the petition without appointing counsel, concluding Verdugo was ineligible as a matter of law because his conviction was based on express malice (aided-and-abetted premeditated murder), not felony murder or natural-and-probable-consequences theories.
- Verdugo appealed, arguing §1170.95(c) requires appointment of counsel upon filing any facially sufficient petition; the Court of Appeal reviewed statutory text, legislative history, and the record of conviction and affirmed the denial.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Verdugo) | Held |
|---|---|---|---|
| Whether §1170.95(c) requires appointment of counsel immediately upon receipt of any facially sufficient petition | Appointment follows the court’s initial prima facie review; counsel is required only if petitioner requests counsel after that initial threshold review | §1170.95(c) mandates appointment of counsel once a facially sufficient petition is filed, before the court’s substantive eligibility review | Court: §1170.95(c) is chronological — court may perform an initial review of readily available record to decide prima facie eligibility; counsel need not be appointed before that review |
| Proper scope of the court’s initial (pre-briefing) prima facie review under §1170.95(c) | Court may examine readily ascertainable parts of the record of conviction (charging documents, verdict forms, abstracts, appellate opinion) to determine ineligibility as a matter of law | (Implicit) The initial review should be limited to facial sufficiency and not to merits without counsel and briefing | Court: initial review may use the record of conviction to determine whether petitioner is ineligible as a matter of law; if eligibility is not foreclosed by the record, then appoint counsel and order briefing |
| Whether the superior court properly relied on the appellate opinion and record to find Verdugo ineligible | The appellate opinion and record show Verdugo was convicted as an aider/abettor with express malice (premeditation), not under felony-murder or natural-and-probable-consequences theories | Verdugo argued only procedural error on appointment of counsel; did not substantially dispute the court’s characterization on appeal | Court: affirmed — the prior appellate opinion and record establish Verdugo’s murder conviction rested on express malice, making him ineligible for §1170.95 relief |
Key Cases Cited
- In re Miranda, 43 Cal.4th 541 (2008) (order-to-show-cause prima facie standard in habeas: take factual allegations as true for preliminary assessment)
- People v. Duvall, 9 Cal.4th 464 (1995) (summary denial when no prima facie showing; procedure for issuing OSC in habeas-like contexts)
- People v. Page, 3 Cal.5th 1175 (2017) (describing preliminary eligibility screening in resentencing contexts)
- People v. Jurado, 38 Cal.4th 72 (2006) (finding premeditation implies specific intent to kill relevant to conspiracy/aider-and-abettor liability)
- People v. Garton, 4 Cal.5th 485 (2018) (error in “at least two” conspiracy instruction can permit conviction without finding specific intent)
- People v. Wilkins, 56 Cal.4th 333 (2013) (misdescription of an element is subject to harmless-error Chapman analysis)
- In re Woodell, 17 Cal.4th 448 (1998) (court of appeal opinion is part of the record of conviction)
- People v. Beck & Cruz, 8 Cal.5th 548 (2019) (conspiracy-to-murder convictions cannot rest on natural-and-probable-consequences theory when charged as conspiracy to murder)