People v. Core CA5 ( 2021 )

Filed 8/4/21 P. v. Core CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081753
Plaintiff and Respondent,
(Super. Ct. No. SC029898B)
v.
NEIL WAYNE CORE, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Michael G.
Bush, Judge.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and
Kimberley A. Donahue, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Before Franson, Acting P.J., Peña, J. and Meehan, J.
INTRODUCTION
In 1985, defendant Neil Wayne Core pleaded guilty to second degree murder
(§ 187; count 1) and admitted an allegation he was personally armed with a firearm
during the commission of the murder. After the passage of Senate Bill No. 1437 (2017–
2018 Reg. Sess.) (Senate Bill 1437), defendant filed a Penal Code section 1170.95
petition for resentencing. (Undesignated statutory references are to the Penal Code.) The
court denied the petition without issuing an order to show cause, concluding defendant
was a major participant in the underlying felony who was ineligible for resentencing.
Defendant now challenges the denial of his petition, and the People concede remand is
necessary for the court to issue a show cause order and to hold an evidentiary hearing
because the record of conviction did not establish defendant was a major participant who
acted with reckless indifference to human life as a matter of law.
We agree with the parties, reverse the court’s order denying the petition, and
remand the matter for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In 1985, defendant Neil Core pleaded guilty to second degree murder (§ 187;
count 1) and admitted an allegation he was personally armed with a firearm during the
commission of the murder.
In 2019, defendant submitted a petition for resentencing pursuant to section
1170.95 using a preprinted form. He checked boxes stating he pleaded guilty or no
contest to first or second degree murder in lieu of going to trial because he believed he
could have been convicted of first or second degree murder pursuant to the felony-murder
rule or the natural and probable consequences doctrine and he was not the actual killer.
He also checked a box stating, “I request that this court appoint counsel for me during
this re-sentencing process.” The court set a hearing on the petition.
2.
The People opposed the petition, arguing the facts of the case established
defendant was a major participant who acted with reckless indifference to human life, so
he could not make a prima facie showing he was eligible for relief.1
In his reply to the People’s response and supplemental briefing, defendant argued
he pleaded guilty to second degree murder under a theory of felony murder—murder
during the commission of a robbery—and there were no findings he was a “major
participant” who acted with “reckless indifference to human life.” He argued the People
were asking “the court to make factual findings and [to] weigh[] the evidence without a
hearing and without the Petitioner/Defendant being able to present contradictory
evidence, particularly since there was no trial in this case.” However, he had carried his
burden of establishing a prima facie showing he was entitled to relief under the statute
and the court should order a show cause hearing.
The court held a hearing after which it denied defendant’s petition without stating
the basis for its decision.
DISCUSSION
Defendant challenges the denial of his petition for resentencing, and the parties
agree the matter must be remanded for the court to issue an order to show cause and to
hold an evidentiary hearing.
1. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[s] 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
1The People also filed a separate motion to dismiss the petition, arguing that Senate Bill
1437 is unconstitutional. The court denied the motion to dismiss.
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indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) It amends section
188, which defines malice, and section 189, which defines the degrees of murder to
address felony-murder liability, and it adds section 1170.95, which provides a procedure
by which those convicted of murder can seek retroactive relief if the changes in the law
would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
Accordingly, section 188 now provides that, “[e]xcept as stated in subdivision (e)
of Section 189, 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), italics added.) The change reflects the
Legislature’s intent that “[a] person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, “All murder … which is committed in
the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary,
mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288,
288a, or 289, or any murder which is perpetrated by means of discharging a firearm from
a motor vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in
part, by adding subdivision (e), which provides:
“A participant in the perpetration or attempted perpetration of a felony
listed in subdivision (a) 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.
[¶] (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.”
Newly enacted section 1170.95 permits those “convicted of felony murder or
murder under a natural and probable consequences theory [to] file a petition with the
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court that sentenced the petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts ….” (Id., subd. (a).) An offender may file a
petition under section 1170.95 where all three of the following conditions are met:
“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The
petitioner was convicted of first degree or second degree murder following
a trial or accepted a plea offer in lieu of a trial at which the petitioner could
be convicted for first degree or second degree murder[;] [¶] [and] (3) The
petitioner could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a)(1)–(3).)
A trial court receiving a petition under section 1170.95 “shall review the petition and
determine if the petitioner has made a prima facie showing that the petitioner falls within
the provisions of this section.” (§ 1170.95, subd. (c).) If the petitioner has made such a
showing, the trial court “shall issue an order to show cause.” (Ibid.) The trial court must
then hold a hearing “to determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the same manner as
if the petitioner had not been previously been [sic] sentenced, provided that the new
sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subd. (d)(1).)
If a hearing is held, “[t]he prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their respective burdens.”
(§ 1170.95, subd. (d)(3).) “[T]he burden of proof shall be on the prosecution to prove,
beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (Ibid.) “If
the prosecution fails to sustain its burden of proof, the prior conviction, and any
allegations and enhancements attached to the conviction, shall be vacated and the
petitioner shall be resentenced on the remaining charges.” (Ibid.)
5.
2. Analysis
Defendant argues the court erred in denying his petition without issuing an order
to show cause. He asserts the prosecutor urged the superior court to consider the
probation report in determining whether defendant was ineligible for relief as a major
participant in the underlying robbery who acted with reckless indifference to human life.
However, he contends, the probation report was not part of the record of conviction and
could not provide a basis for the summary denial of defendant’s petition. Irrespective, he
asserts the court should not have resolved disputed factual issues at this stage. And,
finally, even if the probation report was part of the record of conviction, it did not
establish he was ineligible for relief as a matter of law. The People agree defendant made
a prima facie showing of eligibility for relief and that nothing in his plea “necessarily
precludes him from relief” under section 1170.95. They further concede the court
engaged in factfinding without issuing an order to show cause. Accordingly, the matter
should be remanded and the superior court “should issue an order to show cause and hold
an evidentiary hearing.” We agree with the parties that defendant is entitled to a remand
for the court to issue an order to show cause and hold an evidentiary hearing at which the
prosecution will bear the burden of proving, beyond a reasonable doubt, that defendant is
ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
Here, it is undisputed by the parties that defendant’s petition established a prima
facie showing he is entitled to relief. (§ 1170.95, subd. (c).) And the parties do not
argue, nor does the record before us conclusively establish, defendant was categorically
ineligible for relief as a matter of law. (See People v. Lewis (July 26, 2021, S260598) __
Cal.5th ___, ___ [2021 Cal. Lexis 5258 at p. *30] [holding trial court “may look at the
record of conviction after the appointment of counsel to determine if a petitioner has
made a prima facie case for section 1170.95 relief” but should not engage in factfinding
or make credibility determinations before an order to show cause issues] ; accord, People
v. Drayton (2020) 47 Cal.App.5th 965, 980–981 [“[W]hen assessing the prima facie
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showing, the trial court should assume all facts stated in the section 1170.95 petition are
true. [Citation.] The trial court should not evaluate the credibility of the petition’s
assertions, but it need not credit factual assertions that are untrue as a matter of law … if
the record ‘contain[s] facts refuting the allegations made in the petition … the court is
justified in making a credibility determination adverse to the petitioner’”]; People v.
Duchine (2021) 60 Cal.App.5th 798, 815 [“prima facie showing the [petitioner] must
make is that he [or she] did not, in fact, act [as required] or harbor the mental state
required, for a murder conviction under current law” and “the time for weighing and
balancing and making findings on the ultimate issues arises at the evidentiary hearing
stage rather than at the prima facie stage, at least where the record is not dispositive on
the factual issues. Thus, absent a record of conviction that conclusively establishes that
the petitioner engaged in the requisite acts and had the requisite intent, the trial court
should not question [the petitioner’s] evidence”]; but see People v. Garcia (2020) 57
Cal.App.5th 100, 114 [trial court should determine whether substantial evidence supports
the conclusion the petitioner could still be convicted of murder following the
amendments to §§ 188 and 189 in determining if petitioner made prima facie showing of
eligibility for relief], review granted Feb. 10, 2021, S265692.) And, even if the trial court
could consider the probation report as part of the record of conviction, it did not establish
as a matter of law that defendant was the actual killer, a direct aider and abettor who
acted with the intent to kill, or a major participant who acted with reckless indifference to
human life. Instead, it reflected that a coperpetrator was the actual killer and defendant
served as a lookout during the commission of the robbery during which an individual was
killed. To conclude defendant was a direct aider and abettor who acted with the intent to
kill or a major participant in the underlying felony who acted with reckless indifference
to human life, the court necessarily would have had to weigh facts and draw inferences
from the record, which was inappropriate at that stage of the proceedings. (See People v.
Duchine, supra, at p. 816 [“major participant and reckless indifference findings the trial
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court made based solely on the record evidence entail the weighing of evidence, drawing
of inferences, and assessment of credibility that should be left to the factfinding hearing
process contemplated by section 1170.95, subdivision (d)”]; People v. Drayton, at p. 982
[test governing inquiry whether defendant was a major participant in a felony who acted
with reckless indifference “necessarily requires the weighing of facts and drawing
inferences,” which trial court should not engage in without first issuing order to show
cause and holding evidentiary hearing].)
Thus, our review of the record comports with the parties’ representations; that is,
defendant established a prima facie showing he is entitled to relief and the record did not
rebut defendant’s allegations as a matter of law. Accordingly, the court was required to
issue an order to show cause and hold a hearing during which the prosecution bears the
burden of proving, beyond a reasonable doubt, that defendant is ineligible for
resentencing.
We reverse the court’s order denying the petition and remand for further
proceedings.2
DISPOSITION
The court’s order denying the petition for resentencing is reversed. The court is
directed to issue an order to show cause and to hold a hearing during which the
prosecution bears the burden of proving beyond a reasonable doubt that defendant is
ineligible for resentencing.
2Because we remand on other grounds, our disposition of the case renders defendant’s
remaining contentions, including his ineffective assistance of counsel claim, moot.
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