Today's Law As Amended


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SB-775 Felony murder: resentencing.(2021-2022)



As Amends the Law Today
As Amends the Law on Nov 18, 2021


SECTION 1.
 The Legislature finds and declares that this legislation does all of the following:
(a) Clarifies that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.
(b) Codifies the holdings of People v. Lewis (2021) 11 Cal.5th 952, 961-970, regarding petitioners’ right to counsel and the standard for determining the existence of a prima facie case.
(c) Reaffirms that the proper burden of proof at a resentencing hearing under this section is proof beyond a reasonable doubt.
(d) Addresses what evidence a court may consider at a resentencing hearing (clarifying the discussion in People v. Lewis, supra, at pp. 970-972).

SEC. 2.

 Section 1170.95 of the Penal Code is amended to read:

1170.95.
 (a) A person convicted of felony murder or murder under a  the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the  natural and probable consequences theory  doctrine, or manslaughter  may file a petition with the court that sentenced the petitioner to have the petitioner’s murder  murder, attempted murder, or manslaughter  conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:
(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or  murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted  murder under the natural and probable consequences doctrine.
(2) The petitioner was convicted of first degree or second degree murder  murder, attempted murder, or manslaughter  following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree  have been convicted of murder or attempted  murder.
(3) The petitioner could not presently  be convicted of first murder  or second degree  attempted  murder because of changes to Section 188 or 189 made effective January 1, 2019.
(b) (1) The petition shall be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney, or on the agency that prosecuted the petitioner, and on the attorney who represented the petitioner in the trial court or on the public defender of the county where the petitioner was convicted. If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition. The petition shall include all of the following:
(A) A declaration by the petitioner that he or she  the petitioner  is eligible for relief under this section, based on all the requirements of subdivision (a).
(B) The superior court case number and year of the petitioner’s conviction.
(C) Whether the petitioner requests the appointment of counsel.
(2) If any of the information required by this subdivision is missing from the petition and cannot be readily ascertained by the court, the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information.
(3) Upon receiving a petition in which the information required by this subdivision is set forth or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.
(c) The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The  Within 60 days after service of a petition that meets the requirements set forth in subdivision (b), the  prosecutor shall file and serve a response within 60 days of service of the petition and the  response. The  petitioner may file and serve a reply within 30 days after the prosecutor prosecutor’s  response is served. These deadlines shall be extended for good cause. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief.  If the petitioner makes a prima facie showing that he or she  the petitioner  is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so. 
(d) (1) Within 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder  murder, attempted murder, or manslaughter  conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not been  previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence. This deadline may be extended for good cause.
(2) The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder  the murder, attempted murder, or manslaughter  conviction vacated and for resentencing.  to be resentenced.  If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.
(3) At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is  ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges. The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens. 
(e) If  The petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the  petitioner is entitled to relief pursuant to this section, murder or attempted murder  was charged generically, and the target offense was not charged, the petitioner’s conviction shall be redesignated as the target offense or underlying felony for resentencing purposes.  charged.  Any applicable statute of limitations shall not be a bar to the court’s redesignation of the offense for this purpose.
(f) This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner.
(g) A person convicted of murder, attempted murder, or manslaughter whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to Sections 188 and 189 by Senate Bill 1437 (Chapter 1015 of the Statutes of 2018).
(g) (h)  A person who is resentenced pursuant to this section shall be given credit for time served. The judge may order the petitioner to be subject to parole supervision for up to three two  years following the completion of the sentence.