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In the Court of Appeal of the State of California Second IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND DISTRICT - DIVISION SEVEN No. B296039 THE PEOPLE, Plaintiff and Respondent, Superior Court of California v. Los Angeles County No. A648471 SEKOU KWANE THOMPSON, Hon. Allen Jr. Webster Defendant and Appellant. Appellant’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 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 TABLE OF AUTHORITIES Page 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 3 People v. Simms (Simms) (2018) 23 Cal.App.5th 987 ............................................... 13, 14 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: 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: Cal. Rules of Court, rule 4.551 .................................................. 12 4 Other: CALJIC No. 6.11 ........................................................................ 16 Stats. 2018, ch. 1015 ................................................................ 6, 7 5 APPELLANT’S OPENING BRIEF Statement 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 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.) 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. 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. 6 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. 7 (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
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