People v. Kersting CA1/1 ( 2023 )

Filed 7/10/23 P. v. Kersting CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A166718
v.
MORRIS FRED KERSTING, (Solano County
Super. Ct. No. FC18026)
Defendant and Appellant.
MEMORANDUM OPINION1
Morris Kersting appeals from an order summarily denying his petition
for resentencing under Penal Code2 section 1172.6. The trial court denied the
petition on the basis that it had already denied his previous petition for
resentencing under former section 1170.95, an order this court affirmed in
2021. (People v. Kersting (Mar. 1, 2021, A159901) [nonpub. opn.]
(Kersting I).) But the trial court denied the previous petition without
prejudice, at Kersting’s counsel’s request, and our affirmance of that order
did not foreclose Kersting from filing another petition. Therefore, we agree
We resolve this case by a memorandum opinion pursuant to
1
California Standards of Judicial Administration, section 8.1(2).
2 All further statutory references are to the Penal Code.
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with the parties that a remand is required for the court to reconsider the
instant petition.
“Effective January 1, 2019, Senate Bill [No.] 1437 [(2017–2018 Reg.
Sess.) (Senate Bill No. 1437) (Stats. 2018, ch. 1015)] amended murder
liability under the felony-murder and natural and probable consequences
theories. 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 based solely on his or her participation in a crime.’ (§ 188,
subd. (a)(3).)” (People v. Turner (2020) 45 Cal.App.5th 428, 433.) The bill
also amended section 189 to provide that a defendant who was not the actual
killer and did not have an intent to kill is not liable for felony murder unless
the defendant “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.” (§ 189, subd. (e).)
Senate Bill No. 1437 also enacted former section 1170.95, now
section 1172.6, which established a procedure for eligible defendants to
petition for resentencing. Under the current statute, “[a] person convicted of
felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime, attempted murder under the
natural and probable consequences doctrine, or manslaughter may file a
petition with the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated and to be
resentenced on any remaining counts” as long as three requirements are met:
(1) the charging document allowed the prosecution to proceed under a theory
of felony murder, murder or attempted murder under the natural and
probable consequences doctrine, or other theory of imputed malice; (2) the
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petitioner was convicted of murder, attempted murder, or manslaughter; and
(3) the petitioner could not presently be convicted of that crime after Senate
Bill No. 1437’s changes to the law. (§ 1172.6, subd. (a).)
Upon receiving a facially sufficient petition alleging that all three
requirements are met and requesting counsel, the trial court must appoint
counsel, permit the parties to submit briefing, and “hold a hearing to
determine whether the petitioner has made a prima facie case for relief. If
the petitioner makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause” and hold an evidentiary
hearing on whether the petitioner is guilty of murder or attempted murder
beyond a reasonable doubt. (§ 1172.6, subds. (b)(3), (c)–(d); People v. Lewis
(2021) 11 Cal.5th 952, 957.) “If the court declines to make an order to show
cause, it shall provide a statement fully setting forth its reasons for doing so.”
(§ 1172.6, subd. (c).)
In February 2019, Kersting filed the original petition under former
section 1170.95, averring that in 1985 he was convicted at trial of second
degree murder on a theory of felony murder or under the natural and
probable consequences doctrine and could no longer be convicted of murder
based on Senate Bill No. 1437.3 The trial court appointed counsel to
represent him. After the prosecution filed a response stating that Kersting
was ineligible for resentencing, his counsel indicated he needed to review
more materials and asked the court to find, without prejudice, that there was
no prima facie showing of entitlement to relief.4 The court agreed to do so,
and it denied the petition without prejudice in September 2019.
3 We granted Kersting’s request for judicial notice of the appellate
record in Kersting I.
4As was true in Kersting I, there is almost no information about the
underlying facts in our record.
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Kersting appealed, and his appellate counsel filed a brief asserting that
there were no arguable issues. After independently reviewing the record, we
agreed with counsel’s assessment. In particular, we noted that the original
petition was denied at Kersting’s request. We therefore affirmed the
September 2019 order, and the remittitur issued in May 2021.
In November 2022, Kersting filed the instant petition for resentencing
under section 1172.6, averring that he met all the statutory requirements for
relief. In particular, he stated that “he was convicted of second degree
murder and that he believes [the] jury was given the Natural [and] Probable
Consequences doctrine and aiding and abetting doctrine [instructions]
and[/]or Malice was imputed to find him guilty.” He asked the trial court to
appoint counsel for him.
Later that month, without appointing counsel for Kersting or holding a
hearing, the trial court denied the petition. The court explained its ruling as
follows: “A review of the Court file confirms that [Kersting] previously
petitioned the Court for the same relief in 2019. The Court denied the
previous Petition. The Appellate Court upheld the Trial Court’s ruling.”
On appeal, Kersting claims the trial court denied the instant petition
based on the erroneous conclusion that he “was not legally entitled to file a
second petition.” The Attorney General concedes the error, and we accept the
concession. Because the court’s September 2019 order denied the original
petition without prejudice, Kersting was not barred from filing a new
petition. Nothing in Kersting I, which merely affirmed that order, limited his
ability to do so. Therefore, the court’s basis for denying the instant petition
was improper.
We also conclude that the error was prejudicial, because Kersting filed
a facially sufficient petition, and nothing in the record demonstrates that he
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is ineligible for relief as a matter of law. (See People v. Lewis, supra,
11 Cal.5th at p. 974.) Therefore, on remand, the trial court shall appoint
counsel for him, permit the parties to submit briefing on whether he has
made a prima facie case for relief, and follow all other procedures required
under section 1172.6.
The November 16, 2022 order denying Kersting’s petition for
resentencing is reversed, and the matter is remanded to the trial court for
further proceedings under section 1172.6.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Bowen, J.*
*Judge of the Superior Court of the County of Contra Costa, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
People v. Kersting A166718
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