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To Appeal Special Circumstance Murder, File Habeas, Not 1437

Why This Article Matters: While it may seem rather obvious to an experienced criminal defense attorney, it merits emphasis that the proper way to seek review of a finding of a special circumstance in a murder conviction is a petition for a writ of habeas corpus, not a petition for resentencing under P.C. § 1170.95 (sB 1437), the following summary exemplifies why this is so.
On December 21, 2009, Fereidoun Kohanim and his wife visited their sons, Sami and Ramin Kohanim, at the family’s 98 Cents Store on Venice Boulevard.  Around 4:00 p.m., Sami left his father to watch the cash register while Sami used the rest room and went to the back office.

Hearing a loud noise, Sami ran to the front of the store, where he found his father lying on the floor.  A man was running out of the store.  His father died of a single gunshot wound to back of the head.  A .38 caliber bullet was recovered from his body.

A surveillance video showed three men enter the store and commit the robbery.  The Baldwin Park police department recognized Jesse Caldelari Galvan from the video and later went to his house.  Galvan’s girlfriend identified Galvan from the video.  Galvan had tattoos on his face, head and neck.

A jury at the Clara Shortridge Foltz courthouse convicted Galvan of first-degree murder (Penal Code § 187) and found true a felony-murder special circumstance (Penal Code § 190.2(a)(17), murder committed during robbery).  The trial court judge, Douglas Sortino, exercised his discretion to sentence Galvan, who was under 18 at the time of the crime, to 25 years to life in prison, rather than life without the possibility of parole.

Nine years later, in 2018, the California State Legislature passed Senate Bill 1437, which abolished the natural and probable consequences doctrine in cases of murder and limited application of the felony murder doctrine to only those who were the actual killer, those who directly aided and abetted of solicited the killing, or otherwise acted with the intent to kill, or “was a major participant in the underlying felony and acted with reckless indifference to human life.”  Penal Code § 189(e)(3); People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-248.

Senate Bill 1437 also enacted Penal Code § 1170.95, establishing a procedure for vacating murder convictions for defendants who would no longer would be guilty of murder under the new law and resentencing those so convicted. 

Court of Appeal Second Appellate District Los AngelesCourt of Appeal Second Appellate District Los Angeles

On March 29, 2019, Galvan filed a motion for resentencing under Penal Code § 1170.95.  Judge Sortino summarily denied the petition because the jury had found beyond a reasonable doubt that Galvan was a major participant in the underlying felony and acted with reckless indifference to human life.  A denial at this stage is appropriate only if the record of conviction demonstrates that petitioner is ineligible for relief as a matter of law.”  People v. Verdugo (2020) 44 Cal.App.5th 320, 329.

Galvan then appealed this ruling to the Second Appellate District in downtown Los Angeles, arguing that Judge Sortino erred because the California Supreme Court, in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, clarified the meaning of “major participant” and “reckless indifference to human life,” and according to Galvan, the facts in this case do not meet the clarified standard.

The Second Appellate District recognized that the appeal – of an 1170.95 petition for resentencing -  really depended on whether § 1170.95 allowed resentencing not so much on the changes to the felony murder doctrine, but on Banks and Clark.

In Banks, the California Supreme Court evaluated existing U.S. Supreme Court jurisprudence on the issue and set out a series of considerations relevant to determining whether a particular defendant was a major participant in the underlying felony.

In Clark, the Court did likewise with respect to whether defendant acted with reckless indifference to human life. 

These new considerations clarified the requirements for the felony murder special circumstance so significantly that courts have allowed defendants to challenge the validity of pre-Banks and pre-Clark special circumstances findings via habeas corpus, making an exception to the rule that ordinarily bars a defendant from challenging the sufficiency of the evidence in a habeas petition.  See, e.g., In re Scoggins (2020) 9 Cal.5th 667, 673-674; In re Miller (2017) 14 Cal.App.5th 960, 979.

The Attorney General, in opposing Galvan’s appeal, argued that regardless of whether the facts comply with Banks and Clark, the proper procedure for challenging this issue is a habeas petition, not 1170.95.

The Second Appellate District noted that the Fourth Appellate District reached the same conclusion in two other cases (citations omitted) and therefore denied Galvan’s appeal on such grounds.

We bring this to the reader’s attention because we have had callers who wish to appeal a special circumstance murder on Banks or Clark, but believe because generally such rulings are not retroactive, an 1170.95 petition is the only way, although the caller recognizes it may be the improper method.  This case shows that a habeas petition under Banks or Clark is the way to address such a request.

The citation for the Second Appellate District Court ruling discussed above is People v. Jesse Caldelari Galvan (2d App. Dist., 2020) 52 Cal. App. 5th 1134, 267 Cal. Rptr. 3d 193.

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