Prosecution must prove beyond a reasonable doubt murder conviction under vicarious liability conviction is valid under a viable theory

People v. Fortman (Cal. Ct. App., May 13, 2021, No. B304567) 2021 WL 1920356, at *1

Summary: A murder conviction that may rest on a theory of vicarious liability later invalidated by Senate Bill No. 1437  must stand if the prosecution proves, beyond a reasonable doubt, that the conviction is valid under a still-viable theory of liability. (Pen. Code, § 1170.95, subds. (d)(3) & (a).)

Issue: Does this require the prosecution to convince the trial court hearing the petition to conclude that it would convict defendant on a still-viable theory, or merely to convince that court that a reasonable jury could convict defendant on a still-viable theory?

The Court of Appeal is split, with a majority following the former rule and a lone voice following the latter. (Compare People v. Lopez (2020) 56 Cal.App.5th 936, 271 Cal.Rptr.3d 170, review granted Feb. 10, 2021, S265974 (Lopez); People v. Rodriguez (2020) 58 Cal.App.5th 227, 272 Cal.Rptr.3d 342, review granted Mar. 10, 2021, S266652 (Rodriguez); People v. Clements (2021) 60 Cal.App.5th 597, 274 Cal.Rptr.3d 821 (Clements), review granted Apr. 28, 2021, S267624; People v. Harris (2021) 60 Cal.App.5th 939, 275 Cal.Rptr.3d 206 (Harris), review granted Apr. 28, 2021, S267802 with People v. Duke (2020) 55 Cal.App.5th 113, 269 Cal.Rptr.3d 264, review granted Jan. 13, 2021, S265309 (Duke).)

The California  Supreme Court will resolve this split in Duke, but this Court required  an independent finding by the trial court. Here,  the trial court in this case did not make an independent finding and the Court  reversed and remand for a new hearing.

Commitment offense and sentence

While drunk, Fortman and his crime partner saw an elderly man on the street and decided to “roll him.” They viciously attacked him by repeatedly punching and kicking him, and then turned out his pockets and discovered he had no money. The man died from his injuries a few days later.

Fortman  and his co-defendant were charged with (1) murder (§ 187), and (2) attempted second degree robbery (§ 211). The jury was instructed that each defendant could be liable for murder (1) as a person who acted with malice (that is, as the actual killer or a person who, with intent to kill, aided and abetted the actual killer), or (2) on a felony-murder theory (that is, on the theory that they jointly committed the felony of robbery and thus were jointly liable for the murder resulting from that robbery), or (3) on a natural and probable consequences theory (that is, on the theory that they aided and abetted one another to commit robbery and are jointly liable for a murder that is the “ordinary and probable effect of the pursuit of” the robbery).

Fortman and his co-defendant were convicted of first degree murder and attempted second degree robbery. Fortman filed a petition seeking resentencing under section 1170.95. In the form petition, defendant checked the boxes for the allegations that he had been charged with murder, that he was convicted “pursuant to the felony murder rule or the natural and probable consequences doctrine,” and that his murder conviction would be invalid under the “changes made to Penal Code §§ 188 and 189, effective January 1, 2019.” The People opposed the petition on the ground that (1) section 1170.95 is unconstitutional, and (2) defendant is ineligible for relief as a matter of law because he (a) was the actual killer, (b) directly, and with the intent to kill, aided and abetted the actual killer, or (c) was a major participant who acted with reckless indifference to human life. The court convened a “hearing” at which it ruled that defendant was “ineligible” for relief under section 1170.95 because, “based on the record of conviction,” defendant “could have been very well … convicted under [the] theories of murder that [have] continued to exist after the passage of SB 1437.”

Trial court applied income standard in denying petition for re-sentencing under 1170.95

Defendant argues that the court erred in denying his petition for relief under section 1170.95 because the standard it applied—looking to whether a jury could still convict him on a viable theory—was incorrect.

With one narrow exception,3SB 1437 effectively eliminates murder convictions premised on any theory of vicarious liability—that is, any theory by which a person can be convicted of murder for a killing committed by someone else (such as the felony-murder theory or the natural and probable consequences theory)—unless the People also prove that the non-killer defendant personally acted with the intent to kill or was a major participant who acted with reckless disregard to human life. (§§ 188, 189, subds. (e), (f), 1170.95.)

Section 1170.95’s  two-step procedure.

1. The petitioner seeking to vacate a murder conviction must make a “prima facie showing” of entitlement to relief by establishing that (1) the conviction was based on a charging document that “allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences theory,” (2) the petitioner was convicted of first or second degree murder, and (3) the petitioner “could not be convicted of first or second degree murder because of the changes” made by SB 1437 to the statutes defining murder. (§ 1170.95, subds. (a), (c).)
2. Trial court then issues an OSC and convene a hearing “to determine whether the petitioner is entitled to relief” under section 1170.95; at that hearing, the prosecution bears “the burden” of “prov[ing], beyond a reasonable doubt, that the petitioner is ineligible” for section 1170.95 relief. (Id., subds. (d)(1) & (d)(3).) At that hearing, the prosecutor and petitioner may rely on “the record of conviction or offer new or additional evidence ….” (Id., subd. (d)(3).)

What showing must the prosecution make in order to “prove, beyond a reasonable doubt, that the petitioner is ineligible” for relief under section 1170.95, subdivision (d)(3)?

 The plain text of section 1170.95 is ambiguous on this point and the Court concluded a petitioner’s entitlement to relief on whether the trial court itself finds, beyond a reasonable doubt, that defendant is guilty of murder on a still-valid theory of liability.

This is the outcome most consistent with the  Legislature’s stated purpose to extend SB 1437’s new rules in an equitable fashion both prospectively and retroactively. In the introductory legislative “findings” of SB 1437, our Legislature declared that its purpose was to more closely align the punishment for murder with one’s “own level of individual culpability.”

The People must convince the trial court, as an independent trier of fact, that the petitioner is guilty of murder on a still-valid theory beyond a reasonable doubt. If the People may obtain a murder conviction under the amended statutes in the future only by proving beyond a reasonable doubt that the defendant was the actual killer, acted with the intent to kill or was a major participant acting with reckless indifference to human life, then section 1170.95 should be read to require the People to preserve a past murder conviction by proving any of those same facts to the trier of fact beyond a reasonable doubt.