Filed 4/4/22 P. v. Schroeder CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Defendant Corei Schroeder appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95. He contends he made a prima facie showing he was eligible for relief, and therefore, the trial court should have issued an order to show cause and held an evidentiary hearing. The People agree. We reverse and remand for further proceedings.

Facts and History of the Proceedings

In 2006, defendant pleaded guilty to second degree murder (Pen. Code, § 189; statutory section citations that follow are to the Penal Code) and second degree robbery (§ 211) and he admitted a firearm enhancement (§ 12022, subd. (a)(1)). Pursuant to a stipulation between the parties, the court sentenced defendant to 16 years to life for second degree murder and the midterm of three years concurrent for second degree robbery.

Defendant later petitioned the court for resentencing under section 1170.95. The checklist-styled form averred that: (1) a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine; (2) he pleaded guilty or no contest to first or second degree murder under the felony-murder rule or natural and probable consequences doctrine; and (3) he could not now be convicted of first or second degree murder because of the recent changes to sections 188 and 189. The People opposed defendant’s petition. The court appointed counsel and ordered the parties to brief whether the change in factual basis for defendant’s plea combined with the evidence introduced at the preliminary hearing would have resulted in a conviction for first or second degree murder under a theory undisturbed by Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 1, subd. (b) (Senate Bill 1437)).

The parties agreed defendant’s plea was premised on a felony-murder theory and, had the matter gone to trial, the People would have submitted jury instructions for a felony-murder conviction. In addition, because defendant did not stipulate to the facts elicited at the preliminary hearing, defendant argued the court could not rely on evidence from the preliminary hearing to determine whether he presented a prima facie case for sentencing relief.

Relying on evidence from the preliminary hearing, the court analyzed the evidence offered at the preliminary hearing under People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 and concluded there was substantial evidence to find that defendant was a major participant in the robbery of the victim and acted with reckless indifference to human life. The court determined defendant could have been convicted of first degree murder based on felony murder under Senate Bill 1437 and thus defendant had not made a prima facie showing. The court denied defendant’s resentencing petition.

Discussion

Senate Bill 1437, effective January 1, 2019, amended the felony-murder rule and the natural and probable consequences doctrine to ensure that murder liability is not imposed on a person who is not the killer, did not act with the intent to kill, or was not a major participant in the underlying felony and acted with reckless indifference to human life. Specifically, the bill amended sections 188 and 189 to state that malice shall not be imputed to a person based solely on their participation in a crime and a participant in the perpetration or attempted perpetration of a felony identified in subdivision (a) in which death occurs is liable for murder if: (1) the person was the actual killer, (2) the person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of first-degree murder, or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life.

Senate Bill 1437 also added section 1170.95. After the hearing in this case, the California Supreme Court issued its opinion in People v. Lewis (2021) 11 Cal.5th 952 (Lewis) and the Governor approved Senate Bill No. 775 , amending section 1170.95, effective January 1, 2022. (Stats. 2021, ch. 551, § 2 (Senate Bill 775).) The statute applies to acts predating its enactment as either an ameliorative statute under In re Estrada (1965) 63 Cal.2d 740, 748, or a clarification of law. (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243; People v. Lee (2018) 24 Cal.App.5th 50, 57.) In either case, defendant is entitled to the benefit of the new provisions of section 1170.95 which provide the resentencing petition process for a “person convicted of felony murder or murder under the natural and probable consequences doctrine.” (§ 1170.95, subd. (a).)

The current version of section 1170.95 directs a petitioner to file a declaration stating that they “could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189.” (§ 1170.95, subd. (a)(3); see § 1170.95, subd. (b)(1)(A).) The trial court must “hold a hearing to determine whether the petitioner has made a prima facie case for relief.” (§ 1170.95, subd. (c).) If the petitioner meets their burden, the trial court must issue an order to show cause and conduct an evidentiary hearing to determine whether to vacate the murder conviction and resentence the petitioner on remaining counts, if any. (§ 1170.95, subds. (c), (d)(1); Lewis, supra, 11 Cal.5th at p. 971.) During the evidentiary hearing, the People must prove beyond a reasonable doubt that petitioner is ineligible for resentencing. The parties may rely on the record of conviction or offer new evidence. (§ 1170.95, subd. (d)(3).)

Lewis and Senate Bill 775 now make clear the limitations on the trial court’s fact finding and the appropriate standard of review for the trial court. At the prima facie stage, the court must take petitioner’s factual allegations as true and make a preliminary assessment regarding whether the petitioner would receive relief if their allegations were proved. The court should not reject factual allegations on credibility grounds without first conducting an evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 971.) At the evidentiary hearing that follows an order to show cause, Senate Bill 775 permits the court to consider evidence previously admitted at any prior hearing that would be admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The bill also excludes hearsay evidence from the preliminary hearing on hearsay grounds unless the evidence was admissible under another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)

The parties agree defendant made a prima facie showing he was eligible for sentencing relief. The parties further agree the trial court erred in considering the unstipulated to preliminary hearing testimony and in applying the substantial evidence standard. We agree. (People v. Cooper (2020) 54 Cal.App.5th 106, 123 [trial court may not rely on transcript of preliminary hearing to preclude sentencing relief as a matter of law]; People v. Drayton (2020) 47 Cal.App.5th 965, 980, abrogated on other grounds in Lewis, supra, 11 Cal.5th at p. 963 [trial court may deny petition if record of conviction precludes relief as a matter of law but trial court is prohibited from engaging in fact finding].) Accordingly, we reverse the order denying defendant’s resentencing petition.

Disposition

The trial court’s order denying defendant’s petition for resentencing under section 1170.95 is reversed. The matter is remanded, and the trial court is directed to issue an order to show cause and hold an evidentiary hearing under section 1170.95.

HULL, J.

We concur:

BLEASE, Acting P. J.

MAURO, J.