In the second part of this two-part series, I explain the specific procedures you need to follow to get your pre-2019 felony-murder conviction vacated, and to be re-sentenced according to the terms of the new law. Fortunately, SB-1437, as it’s commonly known – i.e., California Senate Bill number 1437, precludes any new sentence from exceeding your original felony-murder sentence. See leginfo.legislature.ca.gov.
With a little luck, however, your new plea, if any (see below), will have a high-term sentence that is equal to or less than the time you’ve already served, thereby resulting in your immediate release. But regardless of any plea you make, if your petition for vacature is successful, you will no longer be a convicted murderer.
A Note About Hiring a Private Attorney for Your SB-1437 Petition
If you can afford it, hiring a competent, experienced attorney would be highly advisable for several reasons. First, although the petition process is fairly straightforward, there are some technical aspects that may prove daunting for a lay person.
Since you may very well only get one shot at this (see below), you obviously want to ensure that all the paperwork, including your initial petition and reply to any opposition filed by DA’s Office, are not only properly prepared, filed, and thoroughly and irrefutably supported by admissible evidence, but that your motion, including all citations to legal authority, is sufficiently persuasive to convince the judge to grant your petition.
You’ll also need to be equally persuasive when you argue your petition before your original sentencing judge or another judge in that same superior/trial court.
Second, and at least as importantly, a major part of this process will likely include a negotiation with the DA’s Office over a new plea (assuming he or she is unwilling to stipulate to your petition – see below). Specifically, he or she will probably want you to accept a guilty or no-contest plea to a lesser felony, such as robbery.
This can obviously get quite tricky because a defendant or suspect should never speak directly to a prosecutor about their case. On the contrary, you should have a highly skilled lawyer do so on your behalf.
For example, I would never want my client to agree to a plea where he or she agrees to a Strike conviction. See California Penal Code section 667 & California Penal Code section 1192.7.
(Granted, I admittedly have done so many times in the past when my client was desperate enough to take a strike plea if it meant his or her immediate release from jail while awaiting trial.)
In addition, your lawyer should avoid having you plead to any special allegation, if possible, such as your personally using a firearm during the commission of a felony, or your having committed a felony for the purpose of benefitting a criminal street gang. These, too, could have long-term consequences if you’re arrested and prosecuted at any time in the future. Indeed, your re-sentencing should include the dismissal of any special allegations.
I always operate under the assumption that my client might get into criminal trouble at some point in the future and, therefore, don’t want to see him or her get tripped up by having a prior strike on his or her record.
For this very same reason, I would not want to negotiate any parole period as part of this plea. On the contrary, if my client’s petition was strong enough, I might not want to agree to any plea so that he or she might ultimately end up with a clean record.
Introduction to the Petition Process
The procedure for petitioning your original sentencing judge (or, in his or her absence, another judge in that same superior court) is largely laid out in California Penal Code section 1170.95.
Filing a petition is not only mandatory, but the sole avenue for obtaining relief under the new felony-murder law. California appellate courts have also unanimously held that the specific procedures set forth in Penal Code section 1170.95 must be followed to the letter.
See, e.g., People v. Martinez (2019) 31 Cal.App.5th 719. See also People v. Anthony (2019) 32 Cal.App.5th 1102.
Specifically, Pen. Code § 1170.95 explains the steps to have your original conviction under the pre-2019 felony-murder rule set aside, as well as the necessary steps for your re-sentencing, under the new law. Of course, these steps were contained within the final draft to SB-1437. See leginfo.legislature.ca.gov.
Re-sentencing would typically occur under the following scenarios where you would have unresolved or otherwise outstanding non-felony-murder charges:
- you have not yet gone to trial on your pre-2019 felony-murder charge;
- you did go to trial, were convicted on the felony-murder charge, but the jury hung on the remaining (lesser) counts; or
- you pled guilty or no contest to the felony-murder charge, but it was at least conceivable that you could have pled to a lesser, included charge (such as voluntary manslaughter).
Eligibility for Relief Under Penal Code § 1170.95
So long as you were convicted before January 1, 2019 – the day the new felony-murder law was enacted – as primarily codified at California Penal Code section 189(e) – of either felony-murder or under the “doctrine of natural and probable consequences”, you will be eligible for relief.
Alternatively, if you haven’t yet been convicted – either via trial or plea – you will still be eligible. That is, assuming the DA’s Office has filed a criminal complaint against you for either a felony-murder or natural-and-probable-consequences charge, or if a grand jury has indicted you for the same. Pen. Code § 1170.95(a)(1).
Interestingly, it appears that you might also be eligible for relief if you had accepted a plea to a lesser included offense of felony-murder – e.g., Second-Degree Murder under California Penal Code section 192(a)&(b) or Vehicular Manslaughter under Penal Code section 192(c) if, in the event you had actually gone to trial, you could have been convicted of murder under either a felony-murder or natural-and-probable-consequences theory. Pen. Code § 1170.95(a)(2).
In addition, would still otherwise be eligible for relief even if you’re currently on parole after having completed your felony-murder sentence. In that case, you would, among other things, be petitioning the court to have yourself immediately released from parole. However, as discussed below, the judge will have the discretion to order a new parole term (see below).
Fortunately, there is no deadline for you to file your petition, and your eligibility is not dependent on when you were convicted or how much, if any, of your felony-murder sentence you’ve completed.
Steps to Be Completed When Filing Your Petition
As stated above, the petition must be filed at the same courthouse where you were sentenced – preferably before the very same judge who sentenced you – or otherwise where you would have been sentenced (if you’re still awaiting trial).
What Must Be Included in Your Petition
Your Declaration and Supporting Exhibits
Your petition must include a declaration (i.e., a statement of facts signed by you under penalty of perjury) wherein you attest that you are eligible for relief, and which includes all the reasons you are eligible. P.C. § 1170.95(b)(1)(A).
Attached to your declaration must be documentary evidence that confirms all the factual statements contained therein, including proof of your conviction and custodial sentence (whether completed or not) or a certified copy of your criminal complaint or indictment. P.C. § 1170.95(d)(3).
The documents that comprise what is known as the "record of conviction" include any paperwork that establishes the facts of the crime for which you were convicted. See People v. Reed (1996) 13 Cal.4th 217, 223. These documents can include:
- the abstract of judgment;
- the California Penal Code section 969(b) prison packet;
- the charging document;
- plea form;
- transcripts of your plea;
- prelim and trial transcripts;
- probation reports;
- jury instructions; and
- judicial rulings.
But here’s where things get tricky: the DA’s Office is never required to explain or even identify the theory or doctrine under which you’re being charged, or were charged, for murder (or any other crime, for that matter). Instead, the prosecutor needs to only charge you with first or second-degree murder, and cite the appropriate statute.
Similarly, juries don’t need to identify or explain whether your murder conviction is based on any underlying theory or doctrine either.
This means you’ll have to convince the judge that the prosecutors and/or jurors were operating under one or the other theory to obtain relief. For example, you may have to argue that since the killing occurred during a robbery, the prosecution was proceeding under a felony-murder theory.
The DA’s Stipulation
So long as the DA’s Office is amenable, you might be able to petition the court to vacate and re-sentence in a relatively informal manner via a stipulation. That way you can quite possibly avoid a hearing on your petition – i.e., the judge would grant your petition based on the stipulation alone. Indeed, you might even be able to avoid filing a petition in the first place and, instead, file only the stipulation itself.
In other words, by stipulating, the prosecutor agrees in writing that you are eligible for relief, will recommend that your murder conviction be vacated, and that you be re-sentenced per your agreement. P.C. § 1170.95(d)(2).
If the judge agrees with the petition and stipulation, then he or she may simply have you and the assistant DA meet him or her in chambers for an informal discussion to formalize the stipulation.
Thus, hopefully your petition also includes a stipulation from the DA’s Office – preferably executed by your original prosecutor or, better yet, his or her direct supervisor – wherein he or she agrees to the vacature of your conviction and the specific terms of your re-sentencing.
The Court’s Initial Review of Your Petition
Shortly after you file your petition, the assigned judge (in the absence of your original judge) will initially read it for the sole purpose of determining whether you have made a “prima facie” showing – i.e., based on your statements and evidence – that you are both eligible and entitled to relief.
At that point, he or she will issue what’s called an “order to show cause” to the DA’s Office, and schedule a hearing on your petition within sixty days of that issuance. Once the prosecutor receives that order, which requires a showing of good cause as to why you should not be entitled to the requested relief, then he or she will prepare an Opposition brief.
The District Attorney’s Opposition Brief
If your prosecutor refuses to stipulate, or at least refuses to not oppose your petition, then you can certainly expect him or her t to file an opposition thereto, which they have the legal right to do. In doing so, they will attempt to include new/additional evidence purportedly demonstrating that you are ineligible for relief. P.C. § 1170.95(d)(3).
Any Opposition must be filed and served on you no more than sixty days after you serve the DA’s Office with your petition. P.C. § 1170.95(c).
Your Reply Brief
Fortunately, you will have the opportunity to file a Reply brief to the DA’s Opposition. Your Reply is due no later than thirty days after you are served with the Opposition. Id.
The Hearing On Your Petition
At the hearing, both you and the prosecutor will be allowed to make your respective arguments against each other. Fortunately, since the judge would have necessarily found that you have already made a prima facie showing (after his or her initial review), the burden now shifts to the prosecutor to prove beyond a reasonable doubt that you are ineligible for, or otherwise not entitled to, relief. P.C. § 1170.95(d)(3).
You will also have the opportunity to call witnesses to the stand; you can testify on your own behalf; and present any new evidence that you’ve obtained since you filed the original petition.
The judge will allow some reliable hearsay evidence during the hearing – for example, information contained in certain official reports. See People v. Arbuckle (1978) 22 Cal.3d 749, 754.
It may not be necessary for you to personally appear at the hearing, particularly these days during the COVID-19 pandemic. If for whatever reason you don’t want to or are otherwise unable to attend (e.g., you’re still in prison), then your lawyer can obtain a “997 waiver” on your behalf.
See California Penal Code section 977(b)(2). See also People v. Price (1991) 1 Cal.4th 324, 406.
Grounds for the Court to Grant Your Petition
If, following the hearing on your petition, the judge finds that you are in fact covered by the provisions of P.C. § 1170.95(c) and are thereby entitled to relief, then he or she has no choice but to grant it.
In other words, if the opposing prosecutor fell short of meeting his or her burden of proof that you were ineligible or otherwise not entitled to relief, then “the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated . . ..” P.C. § 1170.95(d)(3) (emphasis added).
At that point, the judge will issue a ruling vacating your murder conviction, including any enhancements or allegations. See, e.g., Penal Code section 190.2 (allegations of special circumstances).
Finally, the judge’s ruling in your favor effectively and legally serves as an acquittal on the murder charge, which means you can never be retried for it based on the double-jeopardy prohibition. Similarly, the DA’s Office cannot appeal this acquittal under California law. See People v. Cartwright (1979) 98 Cal.App.3d 369, 380.
How the Judge Will Re-Sentence You
The judge will then re-sentence you on any outstanding criminal charges – i.e., as if the murder itself, including any special allegations, enhancements, or circumstances, never happened. So, if you were involved in a carjacking where your accomplice killed the driver, you would now be re-sentenced for the carjacking offense only.
However, the judge is not allowed to sentence you to more than the original sentence, which might have been “only” twenty-five years, including for first-degree felony-murder. P.C. § 1170.95(d)(1)&(3).
This underlying felony is known as the “target offense”, so if that’s identified in the criminal complaint (whether or not actually charged), then you will be re-sentenced based on that offense. Unfortunately, however, no statute of limitations will apply to any uncharged offenses. P.C. § 1170.95(e).
Similarly, if you were also charged and convicted of the target offense as part of your felony-murder trial or plea, and regardless of whether your sentence for that offense ran concurrently or consecutively, or was stayed, you would still be re-sentenced so that only the original target-offense remains. See California Penal Code section 654 (staying of sentences).
As indicated above, any time you’ve already served for your murder conviction will be applied to your re-sentence prison term. And although the new law is silent on good-time credits, the judge will likely apply them to the re-sentence term.
But be forewarned: the judge has the authority to sentence you to a maximum three-year parole period following your re-sentencing. P.C. § 1170.95(g). Again, as an attorney representing a petitioner, I would do everything in my power to either have the DA’s Office stipulate to no parole; failing that, I would try to convince the judge not to order it.
What Happens If Your Petition is Denied
Hopefully, if the judge denies your petition, he or she does so without prejudice, meaning that he or she will allow you to refile it, presumably with whatever information and/or evidence was deemed missing from your original petition. P.C. § 1170.95(b)(2). If the denial is with prejudice, however, then your only other option will be to appeal the denial.
Specifically, you have the right to file an appeal with the California Court of Appeal for the particular district in which your trial court is located. People v. Martinez, supra, 31 Cal.App.5th at 729-730. Unfortunately, however, this is a highly complicated process which will require you to hire an attorney who specializes in criminal appellate law (which is something I certainly don’t and won’t do). That attorney will have to supplement the appellate record to improve your chances of prevailing.
Conversely, if you already appealed your conviction, then you will have to wait until that appellate process plays out (which, unfortunately, could take a year or two). Then, if the Court of Appeal rules against you, you’ll at least have a second shot by now filing your petition for relief with the trial court. Keep in mind, however, that your chances of prevailing at the appellate level are extremely slim (I would say only one chance in twenty).
Specifically, the Court of Appeal will only review whether the trial court had “substantial evidence” to justify its adverse ruling against you, and will give every benefit in favor of that ruling. See People v. Johnson (1980) 26 Cal. 3d 557, 578. In other words, this is a far lower threshold than the trial court’s proof-beyond-a-reasonable-doubt standard.
In other words, make sure your petition is foolproof when you initially file it.