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SB 1437 / PC 1170.95, No Counsel, Is This Harmless Error?

On January 1, 2019, Senate Bill 1437 became law, amending liability for felony-murder and murder under the natural and probable consequences theory.  The bill accomplished this by adding three provisions to the Penal Code.
Brief Synopsis: In the context of a petitioner seeking under Penal Code § 1170.95 to establish a prima facie case for relief under Senate Bill 1437, it is harmless error not to appoint counsel when, as here, petitioner “obviously” is not eligible for relief.
First, to amend the natural and probable consequences doctrine, “the bill redefined malice under section 188 to require that the principal acted with malice aforethought.”  Now, “[m]alice shall not be imputed to a person solely on his or her participation in a crime. Penal Code § 188(a)(3).” People v. Daniel (2020) 57 Cal.App.5th 666, 672; accord People v. Gentile (2020) 10 Cal.5th 830, 842-843.

Second, to amend the felony-murder rule, the bill added Penal Code § 189(e), which reads:
“A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: (1) the person was the actual killer; (2) the person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life as described in subdivision (d) of section 190.2.”
The provisions of Senate Bill 1437 were considered eligible to be retroactive in application, through a petition brought under Penal Code § 1170.95.

The person must first file a petition with the trial court that sentenced the petitioner, declaring, among other things that the petitioner “could not be convicted of first or second degree murder because of changes to Section 188 or 189.”  Then the trial court judge must review the petition to see if petitioner made a prima facie showing that petitioner falls within the provisions of the section.  If petitioner requests counsel to represent petitioner, the court shall appoint counsel.  If the judge finds a prima facie showing has been made, then the judge sets an order to show cause hearing to determine whether to vacate the murder conviction and to resentence defendant on any remaining counts.

art_1511_-_court_of_appeal__fifth_appellate_dist__fresno_.jpgCourt of Appeal Fifth Appellate District Fresno

In 1995, a jury in Fresno County Superior Court convicted petitioner Lawrence Simmons of first degree murder (count one), with a special circumstance that he was engaged in the commission or attempted commission of a robbery (Penal Code §§ 190.2(a)(17), 211); premeditated attempted murder (Penal Code §§ 187, 664) (count two); and attempted second degree robbery (Penal Code §§ 211, 212.5(b), former 664).  As to each count, the jury found petitioner was armed with a firearm.  In a bifurcated proceeding, the judge found true that petitioner had two prior serious felony convictions and two prior strikes.  On count one, he was sentenced to life without the possibility of parole, plus 11 years (one for the arming enhancement and ten years for the two prior serious felonies).  On count two, he was sentenced to life with the possibility of parole.

On March 29, 2019, petitioner filed a petition for resentencing under Penal Code § 1170.95.  In the form petition, he stated that he was convicted of first degree murder and he was not the actual killer and did not act with an intent to kill and was not a major participant in the underlying felony and did not act with reckless indifference to human life in the course of the crime.

The trial court summarily denied the petition, finding Simmons fell within the provisions of § 1170.95 as a major participant in the crime of attempted robbery who acted with reckless indifference to human life.

Simmons then appealed to the Fifth Appellate District Court in Fresno, arguing that the trial court erred by not appointing him counsel first.

The Fifth Appellate District Court affirmed the trial court, finding that it need not rule on whether such a failure was reversible error because the error was harmless since Simmons was so obviously not eligible for 1437 relief anyways, based on the explicit jury finding in the underlying trial in 1995. 

Interestingly, in Simmons’ reply brief to the appellate court, he argued for the first time that People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 applied to obligate the court to reevaluate whether Simmons acted as a major participant with reckless disregard for human life.  The appellate court refused to engage in this analysis, noting that such an argument was waived by not raising it in his moving papers and that the “new standards” of Banks and Clark would not have helped Simmons anyways under the facts of his case.

The citation for the Fifth Appellate District Court ruling discussed above is People v. Lawrence Simmons (5th App. Dist., 2021) 65 Cal. App. 5th 739, 280 Cal. Rptr. 3d 205.

For more information about the SB 1437 / Penal Code § 1170.95 process, please click on the following articles:
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