v. sekou kwane thompson, defendant and appellant
TRANSCRIPT
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND DISTRICT - DIVISION SEVEN
v.
SEKOU KWANE THOMPSON, Defendant and Appellant.
Superior Court of California Los Angeles County No. A648471 Hon. Allen Jr. Webster
Appellant’s Opening BriefAppellant’s Opening Brief
Robert H. Derham (SBN # 99600) 369-B Third St #364 San Rafael, CA 94901 (415) 485-2945 [email protected]
Attorney for Defendant and Appellant Sekou Kwane Thompson
By Appointment of the Court of Appeal Under the California Appellate Project’s Independent Case System.
TABLE OF CONTENTSTABLE OF CONTENTS
Page
COVER PAGE ................................................................................... TABLE OF CONTENTS ................................................................. 2 TABLE OF AUTHORITIES ........................................................... 3 APPELLANT’S OPENING BRIEF ................................................ 6
Statement of Appeal .................................................................. 6 Statement of the Case ............................................................... 6 Argument ................................................................................... 6
I. The Petition Stated a Prima Facie Claim for Relief and the Court Erred in Dismissing it Before Appointing Counsel and Allowing the People to File a Response................................................... 6
A. The statutory procedure. ................................................ 6 B. Standard of review.......................................................... 9 C. A petition for re-sentencing under section
1170.95 is a “special proceeding,” governed exclusively by statute, and the court is required to adhere strictly to the statutory authority granted to it. ................................................... 9
D. Petitioner alleged a prima facie claim for relief. ......... 11 Conclusion ................................................................................ 18
CERTIFICATE OF COMPLIANCE ............................................. 19 PROOF OF SERVICE ................................................................... 20
2
Page Cases:Cases:
Anti–Defamation League of B’nai B’rith v. Superior Court (1998) 67 Cal.App.4th 1072 ................................................... 11
California Bldg. Indus. Ass’n v. State Water Res. Control Bd. (2018) 4 Cal.5th 1032 ............................................................... 9
Estate of Quinn (1955) 43 Cal.2d 785 .............................................................. 10
Evans v. Paye (1995) 32 Cal.App.4th 265 ..................................................... 11
Henry v. Spearman (9th Cir. 2018) 899 F.3d 703 .................................................. 13
In re Lawler (1979) 23 Cal.3d 190 .............................................................. 13
John v. Superior Court (2016) 63 Cal.4th 91 ................................................................. 9
Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154 ................................................. 11
Palm Prop. Invs., LLC v. Yadegar (2011) 194 Cal.App.4th 1419 ................................................. 10
Paramount Unif. Sch. Dist. v. Teachers Ass’n of Paramount (1994) 26 Cal.App.4th 1371 ................................................... 10
People v. Duvall (1995) 9 Cal.4th 464 ......................................................... 12, 13
People v. Jordan (1990) 217 Cal.App.3d 640 .................................................... 12
People v. Superior Court (1930) 104 Cal.App. 276 ........................................................ 11
People v. Superior Court (Laff) (2001) 25 Cal.4th 703 ............................................................. 10
People v. Towler (1982) 31 Cal.3d 105 .............................................................. 11
Smith v. Westerfield (1891) 88 Cal. 374 .................................................................. 10
Tuolumne Jobs & Small Bus. Alliance v. Superior Court (2014) 59 Cal.4th 1029 ............................................................. 9
Statutes:Statutes:
Code Civ. Proc., § 21 .................................................................. 10 Evid. Code, § 110 ........................................................................ 12 Evid. Code, § 115 ........................................................................ 12 Pen. Code, § 22 ........................................................................... 10 Pen. Code, § 23 ........................................................................... 10 Pen. Code, § 24 ........................................................................... 10 Pen. Code, § 188 ........................................................................... 8 Pen. Code, § 189 ........................................................................... 7 Pen. Code, § 1170.18 ............................................................ 13, 14 Pen. Code, § 1170.95 .......................................................... passim Pen. Code, § 1237 ......................................................................... 6 Pen. Code, § 1770.95 .................................................................. 17
Court Rules:Court Rules:
CALJIC No. 6.11 ........................................................................ 16 Stats. 2018, ch. 1015 ................................................................ 6, 7
5
Statement of AppealStatement of Appeal
This appeal is from an order entered after judgment that affects appellant’s substantial rights. It is authorized by Penal Code section 1237, subdivision (b).¹
Statement of the CaseStatement of the Case
On January 2, 2019, Sekou Thompson filed a petition for re- sentencing under section 1170.95. (CT 1–16.) Three weeks later the court denied the petition without explanation. (CT 17.) Petitioner appealed. (CT 18.)
ArgumentArgument
I.I. The Petition Stated a Prima Facie Claim for ReliefThe Petition Stated a Prima Facie Claim for Relief and the Court Erred in Dismissing it Beforeand the Court Erred in Dismissing it Before Appointing Counsel and Allowing the People toAppointing Counsel and Allowing the People to File a Response.File a Response.
A.A. The statutory procedure.The statutory procedure.
Effective 2019, the Legislature effected a sea change in the law of murder. (Stats. 2018, c. 1015 (S.B. 1437, § 4, eff. Jan. 1. 2019.) In the uncodified parts of the legislation, the Legislature
¹ All statutory references are to the Penal Code unless stated otherwise.
took pains to explain the purpose of the law: “There is a need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.” (Stats. 2018, c. 1015. S.B. 1437 § 1(b).) “It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability.” (Id. at § 1(d).) “Reform is needed in California to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual.” (Id. at § 1(e).) “It is necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Id. at § 1(f).) “Except as stated in subdivision (e) of Section 189 of the Penal Code [the revised first degree felony murder rule], a conviction for murder requires that a person act with malice aforethought. A person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.” (Id. at § 1(g).)
To implement this policy the law now limits felony-murder liability for aiders and abettors to those who (1) intend to kill, (2) act as a major participant in the underlying felony with reckless indifference to human life, or (3) kill a peace officer. (§ 189, subd.
(d).) Moreover, the new law eliminates the natural and probable consequences doctrine by adding a new provision to section 188 that states, except for felony murder, that “in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)
The new law is retroactive; it sets forth a statutory procedure whereby persons convicted of murder as aiders and abettors to felony murder, or under the natural and probable consequences doctrine, may petition the superior court for re-sentencing. (§ 1170.95.) The re-sentencing procedure has two steps.
The first step requires the court to review the petition and determine if it alleges a prima facie showing that the petitioner is entitled to relief. (§ 1170.95, subd. (c).) If the petitioner has requested counsel, the court “shall appoint counsel to represent the petitioner.” (§ 1170.95, subd. (c)) The prosecutor may then file a response within 60 days of service of the petition, and the petitioner may file a reply within 30 days receiving the response. “If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” (§ 1170.95, subd. (c))
The issuance of an order to show cause triggers the second phase of the procedure. In this phase, the court holds a hearing to decide whether to vacate the murder conviction and recall the sentence. (§ 1170.95, subd. (d)(1).) At the hearing, “the burden shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Id. at (d)(3).)
B.B. Standard of review.Standard of review.
Questions of statutory construction are reviewed de novo. A court’s task “in interpreting a statute is to determine the Legislature’s intent, giving effect to the law’s purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent. [Citation.]” (Tuolumne Jobs & Small Bus. Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037.) The words of the statute are reviewed “in context, harmonizing statutory provisions to avoid absurd results.” (John v. Superior Court (2016) 63 Cal.4th 91, 96; see California Bldg. Indus. Ass’n v. State Water Res. Control Bd. (2018) 4 Cal.5th 1032, 1041.)
C.C. A petition for re-sentencing under sectionA petition for re-sentencing under section 1170.95 is a “special proceeding,” governed1170.95 is a “special proceeding,” governed exclusively by statute, and the court is requiredexclusively by statute, and the court is required to adhere strictly to the statutory authorityto adhere strictly to the statutory authority granted to it.granted to it.
The court below possessed no inherent discretion to deny relief; the court had only the power to determine if the statutory requirements were met. A petition for re-sentencing under section 1170.95 is a “special proceeding,” and the court was required to adhere strictly to the statutory procedure. That procedure, spelled out in subdivision (c) of section 1170.95, tasked the court the determine if the petition stated a prima facie claim
9
for relief. If the petition stated a prima face case, then the court was required to appoint counsel, and to allow a response from the People. (§ 1170.95, subd. (c).)
Code of Civil Procedure section 21 provides that all judicial remedies are divided into two classes, actions, and special proceedings. Section 24 states that actions are of two kinds, civil and criminal. Section 22 defines an “action”: “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Section 23, “Special proceeding defined,” states “Every other remedy is a special proceeding.” Special proceedings are established by statute. (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 725.)
“Special proceedings are creatures of statute and the court’s jurisdiction in such proceedings is limited by statutory authority.” (Paramount Unif. Sch. Dist. v. Teachers Ass’n of Paramount (1994) 26 Cal.App.4th 1371, 1387.) Consequently, jurisdiction over special proceedings – though granted to the superior court by the Constitution – is strictly limited by the statutory terms and conditions under which the Legislature has authorized the proceeding. (Smith v. Westerfield (1891) 88 Cal. 374, 379; Estate of Quinn (1955) 43 Cal.2d 785, 787.) Since “the jurisdiction over any special proceeding is limited by the terms and conditions of the statute under which it was authorized . . . the statutory procedure must be strictly followed.” (Palm Prop. Invs., LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425
D.D. Petitioner alleged a prima facie claim for relief.Petitioner alleged a prima facie claim for relief.
At issue here is what constitutes a prima facie claim for relief and whether petitioner stated one. Section 1170.95 provides no guidance as to what a prima facie claim would look like, but the term is widely used in the law and carries the same meaning in whatever context it is used. “Prima facie evidence is that which will support a ruling in favor of its proponent if no controverting evidence is presented. [Citations.] It may be slight evidence which creates a reasonable inference of fact sought to be established but need not eliminate all contrary inferences. [Citation.]” (Evans v. Paye (1995) 32 Cal.App.4th 265, 280, fn. 13 [proceeding to enforce judgment]; Anti–Defamation League of B’nai B’rith v. Superior Court (1998) 67 Cal.App.4th 1072, 1098 [action for invasion of privacy]; Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1172 [proceeding to compel compliance with subpoena]; People v. Towler (1982) 31 Cal.3d 105, 115 [burden of proof to show corpus delicti]; see Black’s Law Dictionary (11th ed. 2019) [prima facie evidence is that which is “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it may later be proved to be untrue.”].)
11
Thus, a prima facie case does not require proof of the ultimate issue, it simply requires allegations, or an offer of proof, from which a petitioner’s entitlement to relief may be reasonably inferred. (People v. Jordan (1990) 217 Cal.App.3d 640, 645). It is different from a burden of proof, which requires that a fact be proved by a preponderance of the evidence, or clear and convincing evidence, or beyond a reasonable doubt. (See Evid. Code, § 115). It is more akin to the burden of producing evidence, meaning the obligation of a party to introduce evidence that is sufficient to avoid a ruling against him on the issue. (See § 110). In other words, the party makes a prima facie case by alleging facts that, if unmet and uncontradicted, would entitle him to relief. The requirement of a prima facie showing is an element of pleading, not of proving the ultimate issue. It is a low threshold.
Habeas corpus is an analogous special proceeding that uses the prima facie case as a screening mechanism. In this context, Rule 4.551 of the California Rules of Court provides: “The court must issue an order to show cause if the petitioner has made a prima facie showing that he or she is entitled to relief. In doing so, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations are proved. If so, the court must issue an order to show cause.” (Id., rule 4.551(c)(1); see also People v. Duvall (1995) 9 Cal.4th 464, 474–475.)
In Duvall, the Supreme Court held that a petition for writ of habeas corpus should state the facts on which relief is sought and
12
include copies of “reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations.” (People v. Duvall, supra, 9 Cal.4th at p. 474.) In a habeas corpus proceeding, if the court finds that the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an order to show cause. (Ibid.) An earlier decision of the Supreme Court, In re Lawler (1979) 23 Cal.3d 190, stated the procedure in a similar way:
In a habeas corpus proceeding the petition itself serves a limited function. It must allege unlawful restraint, name the person by whom the petitioner is so restrained, and specify the facts on which he bases his claim that the restraint is unlawful. If, taking the facts alleged as true, the petitioner has established a prima facie case for relief on habeas corpus, then an order to show cause should issue.
(In re Lawler, supra, 23 Cal.3d at p. 194.)² The closest analog to section 1170.95 may be the re-sentencing
procedure enacted under Proposition 47, the Safe Neighborhoods and Schools Act. (§ 1170.18; see People v. Simms (2018) 23 Cal.App.5th 987, 993 (Simms).) “Proposition 47 reduced certain drug and theft offenses to misdemeanors unless the offenses were committed by otherwise ineligible defendants.” (Simms, supra, at
² In the context of federal habeas corpus petitions, a prima facie showing is “simply a sufficient showing of possible merit to warrant a fuller exploration” by the court. (Henry v. Spearman (9th Cir. 2018) 899 F.3d 703, 706 [citation omitted].)
13
p. 993) At issue in Simms was the procedure whereby an inmate serving a felony term could seek re-sentencing. (Ibid.) Simms described the procedure:
For a defendant who is still serving his sentence, a section 1170.18 proceeding begins, as it did here, with the filing of a petition for recall and re- sentencing under subdivision (a). In the two-step procedure that follows (see People v. Bush (2016) 245 Cal.App.4th 992, 1001), the court initially undertakes a screening determination focused on whether the petitioner has made out a prima facie case for relief. (People v. Sledge (2017) 7 Cal.App.5th 1089, 1094.) At the screening stage, the petitioner bears the burden of proving the eligibility criteria set forth in subdivision (a). (People v. Page (2017) 3 Cal.5th 1175, 1188.) If the court determines that he has done so, the proceeding moves to the second step at which the court must recall the challenged sentence and re- sentence the petitioner to a misdemeanor, unless, in its discretion, it “determines that re-sentencing the petitioner would pose an unreasonable risk of danger to public safety.”
(Simms, supra, 23 Cal.App.5th at p. 993; § 1170.18, subd. (b).) The re-sentencing procedure here is similar. The petition in a
section 1170.95 proceeding initially provides both notice of the request for re-sentencing and a limited opportunity for the court to dismiss petitions which, on their face, show the petitioner is ineligible for relief. Thus, if the petition omitted an essential condition to relief, or if it asserted a fact that definitely disqualified the petitioner – e.g., an admission that petitioner
14
was the actual killer, or was not convicted of first or second degree murder – then it could be said as a matter of law that the petition failed to state a prima facie case and the court could justifiably dismiss the petition summarily. Otherwise, if the petition alleges facts that, if true, entitle the petitioner to re- sentencing, then the court “shall issue an order to show case” and “shall appoint counsel to represent the petitioner.” (§ 1170.95, subd. (c).)
Here, Thompson pleaded facts that, if true, would entitle him to relief. He made the required allegations and supplemented them with documentary evidence that showed he was not the actual killer and was prosecuted as an aider and abettor to felony murder. Nothing in the record contradicts the allegations, or otherwise shows he is ineligible for relief.
He filed a declaration, with exhibits, that followed step-by-step the conditions for relief set out in subdivision (a)(1)-(3):
(1) Petitioner alleged an information charged him with murder that allowed the prosecution to proceed under theories of felony murder and natural and probable consequences. (CT 2, ¶ 1; § 1170.95, subd. (a)(1).)
In support of this allegation, petitioner attached two exhibits to the petition: a jury instruction and a page from the reporter’s transcript of the trial.³
³ The exhibits were not expressly authenticated as pages from the record of petitioner’s trial, but one can infer that petitioner alleges them to be so. In any event, the petition states a prima facie case without the exhibits.
The instruction, CALJIC 6.11 (1989 Revision) informed the jury that the defendant could be guilty of the charged crimes (presumably including murder) if he conspired to commit a different crime, and the natural and probable consequence of that crime was one or more of the charged crimes. (CT 5.)
The page from the reporter’s transcript involved a colloquy between the prosecutor and the court. The prosecutor confirmed that Thompson was being tried as an aider and abettor to felony murder, not as the actual killer. (CT 7.)
(2) Petitioner alleged he was convicted of first degree murder “pursuant to the felony murder rule and the natural and probable consequences doctrine.” (CT 2, ¶ 2; § 1170.95, subd. (a)(2).) The guilty verdict was attached as an exhibit. (CT 9.)
(3) Petitioner alleged he “could not now be convicted of first or second degree murder because of changes made to Penal Code [sections] 188 and 189.” (CT 2, ¶ 3; see § 1170.95, subd. (a)(3).) In support of this allegation, petitioner stated (a) he was not the actual killer, (b) he did not, with intent to kill, aid and abet the
The prosecutor stated: “It is not the People’s position that he intended to kill anyone.
And it is not our intention to request – at least based on the evidence I know at this point in time, unless it changes during the course of the trial – but at least in this point in time we wouldn’t be requesting first degree premeditation, deliberation jury instructions on first degree murder. It is simply a murder theory because we have the underlying felony as an intended crime, and we have this defendant as an aider and abettor to this underlying felony; that is he was a driver – our theory is that he was a driver and not the one who actually committed the arson by throwing the Molotov cocktails.” (CT 7.)
actual killer in the commission of murder, (c) he did not act with reckless indifference to human life as a major participant in the underlying felony, and (d) the victim was not a police officer. (CT 2, ¶ 5; see § 1170.95, subd. (a)(3).)
These allegations stated a prima facie claim for re- sentencing. The court erred denying the petition. The matter should be remanded with directions to appoint counsel for Thompson.
The petition must provide the superior court case number and year of conviction; petitioner did so. (§ 1170.95, subd. (b)(1)(B); CT 1.) Next, the petition may request appointment of counsel; petitioner did so. (§ 1770.95, subd. (b)(1)(C); CT 2.)
Section 1170.95 also requires that the petition be served on the district attorney or the agency that prosecuted the petitioner, and on the public defender or the attorney who represented petitioner at trial. (§ 1170.95, subd. (b)(1).) The proof of service shows only that petitioner filed the petition in the superior court; it does not show service on the district attorney or defense attorney. (CT 16.) However, this minor defect could have been easily remedied. It did not require the court to dismiss the petition.
ConclusionConclusion
For the reasons stated above, the order denying the petition should be reversed.
18
CERTIFICATE OF COMPLIANCECERTIFICATE OF COMPLIANCE
This brief is set using 13-pt Century Schoolbook13-pt Century Schoolbook. According to TypeLaw.com, the computer program used to prepare this brief, this brief contains 2,6222,622 words, excluding the cover, tables, signature block, and this certificate.
The undersigned certifies that this brief complies with the form requirements set by California Rules of Court, rule 8.204(b) and contains fewer words than permitted by rule 8.204(c), 8.360(b), 8.412(a) or by Order of this Court.
19
PROOF OF SERVICEPROOF OF SERVICE
I declare: At the time of service I was at least 18 years of age and not a
party to this legal action. My business address is 369B Third Street, PMB 364, San Rafael, CA 94901. I served document(s) described as Appellant’s Opening Brief as follows:
By U.S. MailBy U.S. Mail
On June 20, 2019, I enclosed a copy of the document(s) identified above in an envelope and deposited the sealed envelope(s) with the US Postal Service with the postage fully prepaid, addressed as follows:
Los Angeles County County Superior Court Attn: Hon. Allen Jr. Webster Airport Courthouse 11701 S. La Cienega Los Angeles, CA, 90045
Sekou Kwane Thompson E65252 CCI PO Box 608 Tehachapi, CA 93581
I am a resident of or employed in the county where the mailing occurred (San Rafael, CA).
20
By emailBy email
On June 20, 2019, I served by email (from [email protected]), and no error was reported, a copy of the document(s) identified above as follows:
California Appellate Project [email protected] (for Sekou Kwane Thompson)
By TrueFilingBy TrueFiling
On June 20, 2019, I served via TrueFiling, and no error was reported, a copy of the document(s) identified above on:
Los Angeles County County District Attorney
Office of the Attorney General (for The People)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
21
Argument
I. The Petition Stated a Prima Facie Claim for Relief and the Court Erred in Dismissing it Before Appointing Counsel and Allowing the People to File a Response.
A. The statutory procedure.
B. Standard of review.
C. A petition for re-sentencing under section 1170.95 is a “special proceeding,” governed exclusively by statute, and the court is required to adhere strictly to the statutory authority granted to it.
D. Petitioner alleged a prima facie claim for relief.
Conclusion
SECOND DISTRICT - DIVISION SEVEN
v.
SEKOU KWANE THOMPSON, Defendant and Appellant.
Superior Court of California Los Angeles County No. A648471 Hon. Allen Jr. Webster
Appellant’s Opening BriefAppellant’s Opening Brief
Robert H. Derham (SBN # 99600) 369-B Third St #364 San Rafael, CA 94901 (415) 485-2945 [email protected]
Attorney for Defendant and Appellant Sekou Kwane Thompson
By Appointment of the Court of Appeal Under the California Appellate Project’s Independent Case System.
TABLE OF CONTENTSTABLE OF CONTENTS
Page
COVER PAGE ................................................................................... TABLE OF CONTENTS ................................................................. 2 TABLE OF AUTHORITIES ........................................................... 3 APPELLANT’S OPENING BRIEF ................................................ 6
Statement of Appeal .................................................................. 6 Statement of the Case ............................................................... 6 Argument ................................................................................... 6
I. The Petition Stated a Prima Facie Claim for Relief and the Court Erred in Dismissing it Before Appointing Counsel and Allowing the People to File a Response................................................... 6
A. The statutory procedure. ................................................ 6 B. Standard of review.......................................................... 9 C. A petition for re-sentencing under section
1170.95 is a “special proceeding,” governed exclusively by statute, and the court is required to adhere strictly to the statutory authority granted to it. ................................................... 9
D. Petitioner alleged a prima facie claim for relief. ......... 11 Conclusion ................................................................................ 18
CERTIFICATE OF COMPLIANCE ............................................. 19 PROOF OF SERVICE ................................................................... 20
2
Page Cases:Cases:
Anti–Defamation League of B’nai B’rith v. Superior Court (1998) 67 Cal.App.4th 1072 ................................................... 11
California Bldg. Indus. Ass’n v. State Water Res. Control Bd. (2018) 4 Cal.5th 1032 ............................................................... 9
Estate of Quinn (1955) 43 Cal.2d 785 .............................................................. 10
Evans v. Paye (1995) 32 Cal.App.4th 265 ..................................................... 11
Henry v. Spearman (9th Cir. 2018) 899 F.3d 703 .................................................. 13
In re Lawler (1979) 23 Cal.3d 190 .............................................................. 13
John v. Superior Court (2016) 63 Cal.4th 91 ................................................................. 9
Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154 ................................................. 11
Palm Prop. Invs., LLC v. Yadegar (2011) 194 Cal.App.4th 1419 ................................................. 10
Paramount Unif. Sch. Dist. v. Teachers Ass’n of Paramount (1994) 26 Cal.App.4th 1371 ................................................... 10
People v. Duvall (1995) 9 Cal.4th 464 ......................................................... 12, 13
People v. Jordan (1990) 217 Cal.App.3d 640 .................................................... 12
People v. Superior Court (1930) 104 Cal.App. 276 ........................................................ 11
People v. Superior Court (Laff) (2001) 25 Cal.4th 703 ............................................................. 10
People v. Towler (1982) 31 Cal.3d 105 .............................................................. 11
Smith v. Westerfield (1891) 88 Cal. 374 .................................................................. 10
Tuolumne Jobs & Small Bus. Alliance v. Superior Court (2014) 59 Cal.4th 1029 ............................................................. 9
Statutes:Statutes:
Code Civ. Proc., § 21 .................................................................. 10 Evid. Code, § 110 ........................................................................ 12 Evid. Code, § 115 ........................................................................ 12 Pen. Code, § 22 ........................................................................... 10 Pen. Code, § 23 ........................................................................... 10 Pen. Code, § 24 ........................................................................... 10 Pen. Code, § 188 ........................................................................... 8 Pen. Code, § 189 ........................................................................... 7 Pen. Code, § 1170.18 ............................................................ 13, 14 Pen. Code, § 1170.95 .......................................................... passim Pen. Code, § 1237 ......................................................................... 6 Pen. Code, § 1770.95 .................................................................. 17
Court Rules:Court Rules:
CALJIC No. 6.11 ........................................................................ 16 Stats. 2018, ch. 1015 ................................................................ 6, 7
5
Statement of AppealStatement of Appeal
This appeal is from an order entered after judgment that affects appellant’s substantial rights. It is authorized by Penal Code section 1237, subdivision (b).¹
Statement of the CaseStatement of the Case
On January 2, 2019, Sekou Thompson filed a petition for re- sentencing under section 1170.95. (CT 1–16.) Three weeks later the court denied the petition without explanation. (CT 17.) Petitioner appealed. (CT 18.)
ArgumentArgument
I.I. The Petition Stated a Prima Facie Claim for ReliefThe Petition Stated a Prima Facie Claim for Relief and the Court Erred in Dismissing it Beforeand the Court Erred in Dismissing it Before Appointing Counsel and Allowing the People toAppointing Counsel and Allowing the People to File a Response.File a Response.
A.A. The statutory procedure.The statutory procedure.
Effective 2019, the Legislature effected a sea change in the law of murder. (Stats. 2018, c. 1015 (S.B. 1437, § 4, eff. Jan. 1. 2019.) In the uncodified parts of the legislation, the Legislature
¹ All statutory references are to the Penal Code unless stated otherwise.
took pains to explain the purpose of the law: “There is a need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.” (Stats. 2018, c. 1015. S.B. 1437 § 1(b).) “It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability.” (Id. at § 1(d).) “Reform is needed in California to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual.” (Id. at § 1(e).) “It is necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Id. at § 1(f).) “Except as stated in subdivision (e) of Section 189 of the Penal Code [the revised first degree felony murder rule], a conviction for murder requires that a person act with malice aforethought. A person’s culpability for murder must be premised upon that person’s own actions and subjective mens rea.” (Id. at § 1(g).)
To implement this policy the law now limits felony-murder liability for aiders and abettors to those who (1) intend to kill, (2) act as a major participant in the underlying felony with reckless indifference to human life, or (3) kill a peace officer. (§ 189, subd.
(d).) Moreover, the new law eliminates the natural and probable consequences doctrine by adding a new provision to section 188 that states, except for felony murder, that “in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)
The new law is retroactive; it sets forth a statutory procedure whereby persons convicted of murder as aiders and abettors to felony murder, or under the natural and probable consequences doctrine, may petition the superior court for re-sentencing. (§ 1170.95.) The re-sentencing procedure has two steps.
The first step requires the court to review the petition and determine if it alleges a prima facie showing that the petitioner is entitled to relief. (§ 1170.95, subd. (c).) If the petitioner has requested counsel, the court “shall appoint counsel to represent the petitioner.” (§ 1170.95, subd. (c)) The prosecutor may then file a response within 60 days of service of the petition, and the petitioner may file a reply within 30 days receiving the response. “If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” (§ 1170.95, subd. (c))
The issuance of an order to show cause triggers the second phase of the procedure. In this phase, the court holds a hearing to decide whether to vacate the murder conviction and recall the sentence. (§ 1170.95, subd. (d)(1).) At the hearing, “the burden shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Id. at (d)(3).)
B.B. Standard of review.Standard of review.
Questions of statutory construction are reviewed de novo. A court’s task “in interpreting a statute is to determine the Legislature’s intent, giving effect to the law’s purpose. [Citation.] We consider first the words of a statute, as the most reliable indicator of legislative intent. [Citation.]” (Tuolumne Jobs & Small Bus. Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037.) The words of the statute are reviewed “in context, harmonizing statutory provisions to avoid absurd results.” (John v. Superior Court (2016) 63 Cal.4th 91, 96; see California Bldg. Indus. Ass’n v. State Water Res. Control Bd. (2018) 4 Cal.5th 1032, 1041.)
C.C. A petition for re-sentencing under sectionA petition for re-sentencing under section 1170.95 is a “special proceeding,” governed1170.95 is a “special proceeding,” governed exclusively by statute, and the court is requiredexclusively by statute, and the court is required to adhere strictly to the statutory authorityto adhere strictly to the statutory authority granted to it.granted to it.
The court below possessed no inherent discretion to deny relief; the court had only the power to determine if the statutory requirements were met. A petition for re-sentencing under section 1170.95 is a “special proceeding,” and the court was required to adhere strictly to the statutory procedure. That procedure, spelled out in subdivision (c) of section 1170.95, tasked the court the determine if the petition stated a prima facie claim
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for relief. If the petition stated a prima face case, then the court was required to appoint counsel, and to allow a response from the People. (§ 1170.95, subd. (c).)
Code of Civil Procedure section 21 provides that all judicial remedies are divided into two classes, actions, and special proceedings. Section 24 states that actions are of two kinds, civil and criminal. Section 22 defines an “action”: “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Section 23, “Special proceeding defined,” states “Every other remedy is a special proceeding.” Special proceedings are established by statute. (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 725.)
“Special proceedings are creatures of statute and the court’s jurisdiction in such proceedings is limited by statutory authority.” (Paramount Unif. Sch. Dist. v. Teachers Ass’n of Paramount (1994) 26 Cal.App.4th 1371, 1387.) Consequently, jurisdiction over special proceedings – though granted to the superior court by the Constitution – is strictly limited by the statutory terms and conditions under which the Legislature has authorized the proceeding. (Smith v. Westerfield (1891) 88 Cal. 374, 379; Estate of Quinn (1955) 43 Cal.2d 785, 787.) Since “the jurisdiction over any special proceeding is limited by the terms and conditions of the statute under which it was authorized . . . the statutory procedure must be strictly followed.” (Palm Prop. Invs., LLC v. Yadegar (2011) 194 Cal.App.4th 1419, 1425
D.D. Petitioner alleged a prima facie claim for relief.Petitioner alleged a prima facie claim for relief.
At issue here is what constitutes a prima facie claim for relief and whether petitioner stated one. Section 1170.95 provides no guidance as to what a prima facie claim would look like, but the term is widely used in the law and carries the same meaning in whatever context it is used. “Prima facie evidence is that which will support a ruling in favor of its proponent if no controverting evidence is presented. [Citations.] It may be slight evidence which creates a reasonable inference of fact sought to be established but need not eliminate all contrary inferences. [Citation.]” (Evans v. Paye (1995) 32 Cal.App.4th 265, 280, fn. 13 [proceeding to enforce judgment]; Anti–Defamation League of B’nai B’rith v. Superior Court (1998) 67 Cal.App.4th 1072, 1098 [action for invasion of privacy]; Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1172 [proceeding to compel compliance with subpoena]; People v. Towler (1982) 31 Cal.3d 105, 115 [burden of proof to show corpus delicti]; see Black’s Law Dictionary (11th ed. 2019) [prima facie evidence is that which is “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it may later be proved to be untrue.”].)
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Thus, a prima facie case does not require proof of the ultimate issue, it simply requires allegations, or an offer of proof, from which a petitioner’s entitlement to relief may be reasonably inferred. (People v. Jordan (1990) 217 Cal.App.3d 640, 645). It is different from a burden of proof, which requires that a fact be proved by a preponderance of the evidence, or clear and convincing evidence, or beyond a reasonable doubt. (See Evid. Code, § 115). It is more akin to the burden of producing evidence, meaning the obligation of a party to introduce evidence that is sufficient to avoid a ruling against him on the issue. (See § 110). In other words, the party makes a prima facie case by alleging facts that, if unmet and uncontradicted, would entitle him to relief. The requirement of a prima facie showing is an element of pleading, not of proving the ultimate issue. It is a low threshold.
Habeas corpus is an analogous special proceeding that uses the prima facie case as a screening mechanism. In this context, Rule 4.551 of the California Rules of Court provides: “The court must issue an order to show cause if the petitioner has made a prima facie showing that he or she is entitled to relief. In doing so, the court takes petitioner’s factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations are proved. If so, the court must issue an order to show cause.” (Id., rule 4.551(c)(1); see also People v. Duvall (1995) 9 Cal.4th 464, 474–475.)
In Duvall, the Supreme Court held that a petition for writ of habeas corpus should state the facts on which relief is sought and
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include copies of “reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations.” (People v. Duvall, supra, 9 Cal.4th at p. 474.) In a habeas corpus proceeding, if the court finds that the factual allegations, taken as true, establish a prima facie case for relief, the court will issue an order to show cause. (Ibid.) An earlier decision of the Supreme Court, In re Lawler (1979) 23 Cal.3d 190, stated the procedure in a similar way:
In a habeas corpus proceeding the petition itself serves a limited function. It must allege unlawful restraint, name the person by whom the petitioner is so restrained, and specify the facts on which he bases his claim that the restraint is unlawful. If, taking the facts alleged as true, the petitioner has established a prima facie case for relief on habeas corpus, then an order to show cause should issue.
(In re Lawler, supra, 23 Cal.3d at p. 194.)² The closest analog to section 1170.95 may be the re-sentencing
procedure enacted under Proposition 47, the Safe Neighborhoods and Schools Act. (§ 1170.18; see People v. Simms (2018) 23 Cal.App.5th 987, 993 (Simms).) “Proposition 47 reduced certain drug and theft offenses to misdemeanors unless the offenses were committed by otherwise ineligible defendants.” (Simms, supra, at
² In the context of federal habeas corpus petitions, a prima facie showing is “simply a sufficient showing of possible merit to warrant a fuller exploration” by the court. (Henry v. Spearman (9th Cir. 2018) 899 F.3d 703, 706 [citation omitted].)
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p. 993) At issue in Simms was the procedure whereby an inmate serving a felony term could seek re-sentencing. (Ibid.) Simms described the procedure:
For a defendant who is still serving his sentence, a section 1170.18 proceeding begins, as it did here, with the filing of a petition for recall and re- sentencing under subdivision (a). In the two-step procedure that follows (see People v. Bush (2016) 245 Cal.App.4th 992, 1001), the court initially undertakes a screening determination focused on whether the petitioner has made out a prima facie case for relief. (People v. Sledge (2017) 7 Cal.App.5th 1089, 1094.) At the screening stage, the petitioner bears the burden of proving the eligibility criteria set forth in subdivision (a). (People v. Page (2017) 3 Cal.5th 1175, 1188.) If the court determines that he has done so, the proceeding moves to the second step at which the court must recall the challenged sentence and re- sentence the petitioner to a misdemeanor, unless, in its discretion, it “determines that re-sentencing the petitioner would pose an unreasonable risk of danger to public safety.”
(Simms, supra, 23 Cal.App.5th at p. 993; § 1170.18, subd. (b).) The re-sentencing procedure here is similar. The petition in a
section 1170.95 proceeding initially provides both notice of the request for re-sentencing and a limited opportunity for the court to dismiss petitions which, on their face, show the petitioner is ineligible for relief. Thus, if the petition omitted an essential condition to relief, or if it asserted a fact that definitely disqualified the petitioner – e.g., an admission that petitioner
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was the actual killer, or was not convicted of first or second degree murder – then it could be said as a matter of law that the petition failed to state a prima facie case and the court could justifiably dismiss the petition summarily. Otherwise, if the petition alleges facts that, if true, entitle the petitioner to re- sentencing, then the court “shall issue an order to show case” and “shall appoint counsel to represent the petitioner.” (§ 1170.95, subd. (c).)
Here, Thompson pleaded facts that, if true, would entitle him to relief. He made the required allegations and supplemented them with documentary evidence that showed he was not the actual killer and was prosecuted as an aider and abettor to felony murder. Nothing in the record contradicts the allegations, or otherwise shows he is ineligible for relief.
He filed a declaration, with exhibits, that followed step-by-step the conditions for relief set out in subdivision (a)(1)-(3):
(1) Petitioner alleged an information charged him with murder that allowed the prosecution to proceed under theories of felony murder and natural and probable consequences. (CT 2, ¶ 1; § 1170.95, subd. (a)(1).)
In support of this allegation, petitioner attached two exhibits to the petition: a jury instruction and a page from the reporter’s transcript of the trial.³
³ The exhibits were not expressly authenticated as pages from the record of petitioner’s trial, but one can infer that petitioner alleges them to be so. In any event, the petition states a prima facie case without the exhibits.
The instruction, CALJIC 6.11 (1989 Revision) informed the jury that the defendant could be guilty of the charged crimes (presumably including murder) if he conspired to commit a different crime, and the natural and probable consequence of that crime was one or more of the charged crimes. (CT 5.)
The page from the reporter’s transcript involved a colloquy between the prosecutor and the court. The prosecutor confirmed that Thompson was being tried as an aider and abettor to felony murder, not as the actual killer. (CT 7.)
(2) Petitioner alleged he was convicted of first degree murder “pursuant to the felony murder rule and the natural and probable consequences doctrine.” (CT 2, ¶ 2; § 1170.95, subd. (a)(2).) The guilty verdict was attached as an exhibit. (CT 9.)
(3) Petitioner alleged he “could not now be convicted of first or second degree murder because of changes made to Penal Code [sections] 188 and 189.” (CT 2, ¶ 3; see § 1170.95, subd. (a)(3).) In support of this allegation, petitioner stated (a) he was not the actual killer, (b) he did not, with intent to kill, aid and abet the
The prosecutor stated: “It is not the People’s position that he intended to kill anyone.
And it is not our intention to request – at least based on the evidence I know at this point in time, unless it changes during the course of the trial – but at least in this point in time we wouldn’t be requesting first degree premeditation, deliberation jury instructions on first degree murder. It is simply a murder theory because we have the underlying felony as an intended crime, and we have this defendant as an aider and abettor to this underlying felony; that is he was a driver – our theory is that he was a driver and not the one who actually committed the arson by throwing the Molotov cocktails.” (CT 7.)
actual killer in the commission of murder, (c) he did not act with reckless indifference to human life as a major participant in the underlying felony, and (d) the victim was not a police officer. (CT 2, ¶ 5; see § 1170.95, subd. (a)(3).)
These allegations stated a prima facie claim for re- sentencing. The court erred denying the petition. The matter should be remanded with directions to appoint counsel for Thompson.
The petition must provide the superior court case number and year of conviction; petitioner did so. (§ 1170.95, subd. (b)(1)(B); CT 1.) Next, the petition may request appointment of counsel; petitioner did so. (§ 1770.95, subd. (b)(1)(C); CT 2.)
Section 1170.95 also requires that the petition be served on the district attorney or the agency that prosecuted the petitioner, and on the public defender or the attorney who represented petitioner at trial. (§ 1170.95, subd. (b)(1).) The proof of service shows only that petitioner filed the petition in the superior court; it does not show service on the district attorney or defense attorney. (CT 16.) However, this minor defect could have been easily remedied. It did not require the court to dismiss the petition.
ConclusionConclusion
For the reasons stated above, the order denying the petition should be reversed.
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CERTIFICATE OF COMPLIANCECERTIFICATE OF COMPLIANCE
This brief is set using 13-pt Century Schoolbook13-pt Century Schoolbook. According to TypeLaw.com, the computer program used to prepare this brief, this brief contains 2,6222,622 words, excluding the cover, tables, signature block, and this certificate.
The undersigned certifies that this brief complies with the form requirements set by California Rules of Court, rule 8.204(b) and contains fewer words than permitted by rule 8.204(c), 8.360(b), 8.412(a) or by Order of this Court.
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PROOF OF SERVICEPROOF OF SERVICE
I declare: At the time of service I was at least 18 years of age and not a
party to this legal action. My business address is 369B Third Street, PMB 364, San Rafael, CA 94901. I served document(s) described as Appellant’s Opening Brief as follows:
By U.S. MailBy U.S. Mail
On June 20, 2019, I enclosed a copy of the document(s) identified above in an envelope and deposited the sealed envelope(s) with the US Postal Service with the postage fully prepaid, addressed as follows:
Los Angeles County County Superior Court Attn: Hon. Allen Jr. Webster Airport Courthouse 11701 S. La Cienega Los Angeles, CA, 90045
Sekou Kwane Thompson E65252 CCI PO Box 608 Tehachapi, CA 93581
I am a resident of or employed in the county where the mailing occurred (San Rafael, CA).
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By emailBy email
On June 20, 2019, I served by email (from [email protected]), and no error was reported, a copy of the document(s) identified above as follows:
California Appellate Project [email protected] (for Sekou Kwane Thompson)
By TrueFilingBy TrueFiling
On June 20, 2019, I served via TrueFiling, and no error was reported, a copy of the document(s) identified above on:
Los Angeles County County District Attorney
Office of the Attorney General (for The People)
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
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Argument
I. The Petition Stated a Prima Facie Claim for Relief and the Court Erred in Dismissing it Before Appointing Counsel and Allowing the People to File a Response.
A. The statutory procedure.
B. Standard of review.
C. A petition for re-sentencing under section 1170.95 is a “special proceeding,” governed exclusively by statute, and the court is required to adhere strictly to the statutory authority granted to it.
D. Petitioner alleged a prima facie claim for relief.
Conclusion