Friday, November 19, 2021

Governor Signs SB775, Clarifying the Scope and Procedure for Resentencing Under SB1437 (Pen. Code, § 1170.95)

On October 5, 2021, the the Governor signed Senate Bill No. 775, which amends Penal Code section 1170.95 (added by Senate Bill No. 1437) to expand eligibility for resentencing and clarify procedural requirements for the process. The amendments are effective January 1, 2022. 

This is an EXCERPT from Central California Appellate Program (CCAP)'s announcement: 

 Here are the important highlights: 

  The bill provides that defendants convicted of the following crimes may be eligible for resentencing (provided other criteria in the statute are met, see amended Pen. Code, § 1170.95, subd. (a)(1)-(3)): (1) attempted murder under the natural and probable consequences doctrine, (2) manslaughter, or (3) murder under an implied malice theory where malice is imputed to a person based solely on that person's participation in a crime. (Id., subd. (a).) 

The bill clarifies that the trial court must determine whether the petitioner could presently be convicted of murder or attempted murder. (Id., subd. (a)(3).) 

It codifies the holdings of People v. Lewis (2021) 11 Cal.5th 952, 961-970, regarding a petitioners' right to appointment of counsel and the standard for determining the existence of a prima facie case. (Amended Pen. Code, § 1170.95, subds. (b)(3), (c).) 

 It provides that if the trial court declines to issue an order to show cause at the prima facie stage, the trial court must provide a statement of reasons fully setting forth the basis for its decision. (Id., subd. (c).) 

The bill clarifies procedural requirements for a subdivision (d)(3) hearing. "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." (Emphasis added; note that the bill does not state that the factual summary in an appellate opinion may be considered.) Hearsay evidence that was admitted in a preliminary hearing pursuant to Penal Code section 872, subdivision (b) (sworn testimony of a current or retired law enforcement officer relating the statements of declarants made out of court and offered for the truth of the matter asserted) "shall be excluded from the hearing, unless the evidence is admissible pursuant to another exception to the hearsay rule." (Id., subd. (d)(3).) 

The legislation amends section 1170.95 to provide that "[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." (Ibid.) 

A person who is resentenced may be subject to parole supervision for up to two years (formerly up to three years). (Id., subd. (h).) 

It clarifies that a person who is currently appealing the judgment in their case may seek relief under SB 1437 on direct appeal: "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 [Penal Code] Sections 188 and 189 by Senate Bill 1437 (Chapter 1015 of the Statutes of 2018)." (Id., subd. (g).)  


A BIG THANK YOU to CCAP for summarizing the high points.