It’s murder in the 2010's.....

THE CHANGING LANDSCAPE

OF CALIFORNIA HOMICIDE LAW

J. Bradley O’ConnellAssistant Director, First District Appellate Project

October 2012

INTRODUCTION & SCOPE

These materials are intended to provide an overview of noteworthydevelopments in California homicide law over the past 2-3 years – primarily2010-2012. However, the materials also cover a few significant pre-2010 cases– e.g., People v. Chun in 2009 – where necessary to provide context for morerecent developments. For a more extensive treatment of homicide cases from2000-2010, see “California Homicide Law in the New Millennium,” includedin the materials for CACJ’s October 2010 Appellate Seminar.

SECOND-DEGREE MURDER – IMPLIED MALICE

• People v. Cravens (2012) 53 Cal.4th 500. Applying deferential sufficiency-of-evidence standard, Supreme Court upholds second-degree murder convictionwhere defendant “sucker punched” smaller victim in the head, who fell andstruck his head on the pavement, fracturing his skull. Supreme Court findssufficient evidence of both physical and mental components of implied malice. • Fatal blow from fist will only support implied malice where there are

aggravating circumstances. “Defendant targeted a smaller and shortervictim who was intoxicated, exhausted, and vulnerable.” The blow was“one of the hardest punches” witnesses had ever seen, and thedefendant’s position “guaranteed” victim would fall on pavement orconcrete. “The manner of the assault and the circumstances under whichit was made rendered the natural consequences of defendant's conductdangerous to life.” Cravens at 508.

• “[T]the jury was entitled to infer defendant's subjective awareness that

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his conduct endangered [the victim’s] life from the circumstances of theattack alone, the natural consequences of which were dangerous tohuman life.” Additionally “defendant’s behavior before and after thefight” displayed conscious disregard for life. Cravens had pattern ofsimilar powerful “sucker punches,” and had been “egging on” one of hiscompanions to fight the victim. After “having knocked [the victim] unconscious and with his head split open,” Cravens laughed and took nosteps to ascertain his condition or obtain assistance. Cravens at 511.

VEHICULAR HOMICIDE AND MURDER

Several recent cases have upheld second-degree murder liability for deathsarising out of reckless driving evidencing conscious disregard for life andwanton disregard of the high probability of death:

• Gross intoxication – no prior DUI required. People v. Johnigan(2011) 196 Cal.App.4th 1084. Upholds second-degree murderconviction, where grossly intoxicated driver (BAC 0.24%) “sped away”from police and ultimately crossed double-yellow line at 70 mph,resulting in fatal collision.• “[N]o requirement of a ‘predicate act,’ i.e., a prior DUI or an

alcohol-related accident necessary to establish implied malice.”• Sufficient evidence of “conscious disregard for life” and “wanton

disregard for the near certainty that someone would be killed,”where defendant had been warned she was too intoxicated todrive, had declined offers of a safe ride home, and “sped awayafter the police stopped to provide assistance.” Johnigan at 1091-1092.

• High-speed street race in residential neighborhood. People v.

Canizalez (2011) 197 Cal.App.4th 832. Upholds second-degree murderconvictions arising out of high-speed street race in which one vehiclestruck another car, killing a family of three. • Sufficient evidence of implied malice where the cars sped side-

by-side down a residential street at speeds up to 87 mph.• A “tsunami” of circumstantial evidence established the requisite

“conscious disregard for life.” “Appellants were fully aware of

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the conditions at the accident scene which would make racingthere dangerous,” including its residential character and a recentfatal collision. This was not an “not an isolated, spur-of-the-moment instance of poor judgment.” The cars had been illegallymodified for racing, and one defendant had been warned about hisdangerous driving earlier that day. Canizalez at 842-843.

• There was conflicting evidence on which vehicle struck thevictims’ car. However, both participants were liable for murderunder either a direct perpetrator or an aiding/abetting natural-and-probable consequences theory.

• Speeding and other violations. People v. Moore (2010) 187Cal.App.4th 937. Defendant’s dangerous driving created a sufficientlyhigh probability of death to support implied malice, even though he wasnot intoxicated or fleeing from police pursuit.• Sufficient evidence of subjective awareness of high probability of

death, where defendant drove 70 mph in a 35 mph zone, crossedinto the opposing traffic lane, ran a red light, and struck a car inthe intersection without attempting to apply brakes.

• Semi-trailer on steep highway despite driver’s knowledge ofmalfunctioning brakes. People v. Superior Court (Costa) (2010) 183Cal.App.4th 690. Upholds grand jury’s indictment of a commercialtrucker for murder, where the trucker drove a semi-trailer on a steephighway despite knowledge of the condition of his brakes. Driver lostcontrol, resulting in a fatal collision with another vehicle.• Murder liability for a vehicular homicide turns on a “case-by-

case” analysis of the facts and does not necessarily require either“an intoxicated defendant or a high speed chase” Costa at 698.

• It would have been evident from the pre-trip inspection that 5 ofthe 10 brakes did not work or were seriously out of adjustment. Plumes of smoke were coming from the overheated brakes duringdrive, and another motorist (a firefighter) had warned Costa aboutthe smoke and the condition of the highway ahead.

• Sufficient evidence of implied malice for indictment to survive §995 review: “[T]here is some rational ground for inferring thepossibility that Costa was aware of the risk to human life posed

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by continuing to drive his large semi-trailer truck down thehighway, and that he consciously and deliberately disregardedthat risk.” Id. at 700.

AIDING/ABETTING, NATURAL AND PROBABLE CONSEQUENCES, ETC.

• Natural and probable consequences – simple assault as target crime. People v Gonzales (2011) 52 Cal.4th 254.• Upholds first-degree murder convictions on natural and probable

consequences theory. Gonzales “knew and shared [perpetrator’s] intentto murder [two rival gang members] or, alternatively, knew and shared[perpetrator’s] intent to assault [the victims] with a deadly weapon. Under either theory, Gonzales acted to encourage the shootings byproviding armed backup to [perpetrator].” Gonzales at 295.

• In instructing on aiding/abetting and natural and probable consequencestheory, through CALJIC 3.02, the court identified the target crime as“assault” and instructed on the definition of simple assault. “Althoughthe trial court might properly have identified and described the targetcrime more specifically as assault,” Supreme Court finds no error. “Thetrial court’s “instruction with a general definition of assaultencompassed the circumstances of the assault described by theevidence,” which showed “only the single scenario that [the perpetrator]assaulted [the victims] with his gun.” Gonzales at 300.

• In upholding the instruction, Supreme Court rejects argument “that, asa matter of law, simple assault cannot serve as the target offense formurder liability under the natural and probable consequences doctrine.” Gonzales at 300. Although People v. Prettyman (1996) 14 Cal.4th 248,269, had “cautioned that a conviction for murder under the natural andprobable consequences doctrine could not be based on ‘trivial’activities, ... nowhere did we suggest that simple assault must beconsidered trivial for these purposes.” Gonzales at 299.

• Disconnect between culpability levels of perpetrators and aider/abettors.One of the most noteworthy trends in 21 century California homicidest

jurisprudence has been the de-coupling of the culpability levels of directperpetrators and aider-abettors:

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• Aider/abettor may be guilty of greater degree of offense than directperpetrator. • People v. McCoy (2001) 25 Cal.4th 1111. Aider’s level of guilt depends

upon own level of culpability. Where multiple participants are involvedjointly in committing or causing a killing “‘the individual mentes reaeor levels of guilt of the joint participants are permitted to float free andare not tied to each other in any way.’”• E.g., Aider may be guilty of murder though actual perpetrator’s

offense is lesser due to heat-of-passion or imperfect self-defense(as in McCoy opinion’s Othello example).

• Conversely, aider/abettor may be guilty of lesser degree of offense.• Defect in former CALCRIM and CALJIC instructions. People v.

Nero (2010) 181 Cal.App.4th 504. Former CALCRIM andCALJIC aiding/abetting instructions stating that all principals are“equally guilty” of offense were misleading. They failed toinform jurors of possibility that aider may be guilty of greater orlesser offense than direct perpetrator and did not require them toassess aider’s distinct mental state and fail to .

• Waiver/forfeiture. But other cases have found the asserted defectin the “equally guilty” language waived by failure to object or torequest modification of the instructions. E.g., People v. Lopez(2011) 198 Cal.App.4th 1106, 1118-1119.

• Ineffective assistance. Yet another recent case, however, foundineffective assistance in failing to request modification of the“equally guilty” language of former CALCRIM No. 400. Theomission was prejudicial, where the evidence would havesupported a finding that the aider acted without premeditation andthe jurors’ mid-deliberations question demonstrated theirconfusion on the point. People v. Loza (2012) 207 Cal.App.4th332.

• Modification of CALCRIM. As noted in Loza, CALCRIM hassubsequently modified CALCRIM 400 to remove the “equallyguilty” language.

• However, the Supreme Court has now taken a significant step back from thegeneral trend of de-coupling perpetrators’ and aiders’ culpability – at least in

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the context of attempted murder:

• Different natural and probable consequences standard for attemptedpremeditated murder. People v. Favor (2012) 54 Cal.4th 868.• An aider/aider in another crime may be guilty of attempted murder if

that offense was foreseeable as a natural and probable consequence ofthe target offense in which the aider assisted.

• But that foreseeability limitation does not apply to the premeditatedcharacter of the attempted murder. Where an aider-abettor is foundguilty of attempted murder under the natural and probable consequencesdoctrine, aider’s potential liability for attempted murder withpremeditation and deliberation (§ 664(a)) depends solely on whether theperpetrator acted with premeditation. • “[T]here is no requirement that an aider and abettor reasonably

foresee an attempted premeditated murder as the natural andprobable consequence of the target offense. It is sufficient thatattempted murder is a reasonably foreseeable consequence of thecrime aided and abetted, and the attempted murder itself wascommitted willfully, deliberately and with premeditation.” Favorat 880.

• Court relies on difference in structures of murder and attempted murderin California. Unlike murder, “attempted murder is not divided intodifferent degrees.” § 664(a), which prescribes life sentence (rather thanDSL triad (5, 7 or 9 yrs)) for attempted murder with premeditation doesnot establish a separate offense, but merely represents a “penaltyprovision.” (Citing People v. Bright (1996) 12 Cal.4th 652.)• § 664(a) requires “only that the murder attempted was wilful,

deliberate, and premeditated,” but not that an aider/abettor actedwith premeditation.

• Once the jury finds that attempted murder was foreseeable as anatural and probable consequence of the aider’s target offense,the applicability of § 664(a)’s enhanced punishment turns solelyon whether the perpetrator acted with premeditation, regardlessof whether the premeditated character of the attempted murderwas foreseeable.

• Court adheres to Bright’s “penalty provision” characterization,even though it has previously recognized that, under Apprendi, §

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664(a) represents “‘the functional equivalent of an element of agreater offense,’” because it “exposes a defendant to greaterpunishment than that authorized by a jury’s guilty verdict ofattempted murder.” Favor at 877 fn. 2 (citing People v. Seel(2004) 34 Cal.4th 535, 547-548).

• Review granted re foreseeability of degree of murder. Although Favor’srepudiation of any requirement of foreseeability of premeditation in theattempted murder context turned upon § 664(a)’s unusual status as a “penaltyprovision,” the Supreme Court has now granted review to address a similarquestion as to the degree of murder. People v. Chiu, S202724, review gr. Aug.15, 2012.• “Does a conviction for first degree murder as an aider and abettor under

the natural and probable consequences doctrine require thatpremeditated murder have been a reasonably foreseeable consequenceof the target crimes or only that murder have been such a consequence?” (AOC summary)

OTHER MURDER/ATTEMPTED MURDER DISTINCTIONS

As summarized above, the California Supreme Court’s recent Favor holdingrepudiating any foreseeability requirement for the premeditated character ofattempted murder turned upon the putative status of premeditation under §664(a) as a “penalty provision,” rather than a definition of a separate offenseor a higher “degree” of attempted murder. Other recent cases illustrate otherconsequences of that distinction (this time to the benefit of an attemptedmurder defendant):

• Unnecessary to plead degree of murder. People v. Bramit (2009) 46 Cal.4th1221, 1236-1238. Under longstanding California law, an accusatory pleadingneed only allege the offense of murder. It is not necessary to plead first-degreemurder (or to separately plead a felony-murder theory).

• But necessary to allege premeditation for attempted murder. People v.Arias (2010) 182 Cal.App.4th 1009. A pleading alleging only attemptedmurder is not sufficient to authorize the enhanced punishment applicable topremeditated attempted murder. § 664(a) requires pleading that the attempted

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murder was willful, premeditated and deliberate.• However, the issue may be forfeited if defense counsel had an

opportunity to review the instructions and verdict forms but did notobject to submission of the premeditation allegation. (People v.Houston (2012) 54 Cal.4th 1186, 1227-1229.)

PROVOCATION AND DEGREE OF MURDER

• People v. Hernandez (2010) 183 Cal.App.4th 1327: Rejects challenge toadequacy of CALCRIM 522, which directs jurors to “consider ... provocationin deciding whether the crime was first or second degree murder” (and also indeciding between murder and manslaughter).• Failure of CALCRIM 522 to specifically relate provocation to

premeditation (unlike CALJIC 8.73) doesn’t render it confusing orinadequate. “Considering CALCRIM Nos. 521 [premeditationdefinition] and 522 together, the jurors would have understood thatprovocation (the arousal of emotions) can give rise to a rash, impulsivedecision, and this in turn shows no premeditation and deliberation.” Hernandez at 1334.

• There is no sua sponte duty to instruct on bearing of provocation ondegree of murder in the first place. Like CALJIC 8.73, CALCRIM 522is a pinpoint instruction, required only upon request. Consequently, anyfurther amplification or clarification of that instruction also requires aspecific request.

“PROVOCATIVE ACT” DOCTRINE

• Basic rule: “When the defendant or his accomplice, with a consciousdisregard for life, intentionally commits an act that is likely to cause death, andhis victim or a police officer kills in reasonable response to such act, thedefendant is guilty of murder.” People v. Gilbert (1965) 63 Cal.2d 690, 704.

• Degree of murder/individual defendant’s mental state. People v. Concha(2009) 47 Cal.4th 653. Provocative act murder liability turns on mens rea ofthe individual defendant. A defendant who commits attempted murder mayalso be liable for first-degree murder, where his accomplice is killed byintended victim in the course of the attempted murder.

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• The instructions in Concha were defective in failing to communicatethe requirement of premeditation on the part of the individual defendant. “[T]he jury must find that the individual defendant personally actedwilfully, and with deliberation and premeditation” in the criminal actwhich provoked the fatal shooting. Concha at 666 (emphasis inoriginal).

• Harmless error. However, both the appellate court on remand in Conchaand the Supreme Court in a subsequent case have found this errorharmless under a Chapman-Neder analysis. Each case concluded thatno rational jury could have found that the defendant acted with intent tokill as to the intended victim, but did not personally act withpremeditation and deliberation. People v. Concha (2010) 182Cal.App.4th 1072; People v. Gonzalez (2012) 54 Cal.4th 643.

• Relation to felony-murder. People v. Baker-Riley (2012) 207 Cal.App.4th631 {pet. review filed, Aug. 2, 2012}. Upholds first-degree murder convictionfor armed robbery participant, where one of the robbery victims fatally shot thedefendant’s accomplice.• Circumstances supported provocative act murder liability, where

defendant’s “egregiously provocative” conduct went beyond mereparticipation in the robbery and placed the robbery victim in reasonablefear of his life, provoking his fatal shooting of the accomplice. Defendant “taunted, terrorized, and toyed with the victims for anextended period of time,” including pointing the gun at one victim’shead and threatening to kill or paralyze him.

• Pursuant to Gilbert, because the “provocative act” murder of theaccomplice occurred during a robbery, the felony-murder statute fixedthe degree of the offense as first-degree murder.

SECOND-DEGREE FELONY-MURDER/MERGER -- CHUN

• People v. Chun (2009) 45 Cal.4th 1172. Under the long-standing (and long-debated) second-degree felony murder rule, a homicide in the course of an“inherently dangerous felony” is deemed second-degree felony-murder,without the need for separate proof of malice aforethought. The Chun opinionsubstantially redefined both the basis for the rule and the “merger” limitationon use of an “assaultive” felony as a felony-murder predicate.

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• Statutory basis for rule. Contrary to descriptions in multiple priorSupreme Court opinions, second-degree felony-murder is not a “non-statutory” “judicially created” basis for murder liability. Instead, theCourt concludes that it has a statutory basis in Pen. Code § 188 andrepresents an alternative means of establishing implied malice.• “The ‘abandoned and malignant heart’ language of both the

original 1850 law and today's section 188 contains within it thecommon law second degree felony-murder rule. The willingnessto commit a felony inherently dangerous to life is a circumstanceshowing an abandoned and malignant heart.” Chun at 1187-1188.

• Expanded “merger” bar on use of “assaultive” felony. AlthoughChun quashed challenges to the overall constitutionality of California’ssecond-degree felony-murder rule, the Court also clarified and expandedthe “merger” limitation on use of assault with a deadly weapon orsimilar offenses as felony-murder predicates. Chun overruled priorSupreme Court precedents allowing shooting at an inhabited dwelling(§ 246) or reckless discharge of a firearm (§ 246.3) to serve as a felony-murder predicate.• Also disapproved those prior cases’ use of a “collateral purpose”

test, under which the applicability of the “merger” bar to felony-murder appeared to depend on a case-by-case factualdetermination.

• Instead, the merger doctrine flatly bars use of felony assault (§245) or any other “assaultive” felony, including § 246 or § 246.3,as a felony-murder predicate.

• However, the error was harmless under the facts of Chun where nojurors could have found that Chun fired into vehicle with threeoccupants without necessarily finding elements of implied malice – i.e.,“without also finding that defendant committed an act that is dangerousto life and did so knowing of the danger and with conscious disregardfor life....” Chun at 1205.• See also People v. Hach (2009) 176 Cal.App.4th 1450. Similar

harmless error finding re erroneous § 246 felony-murder theoryharmless. No way jurors could have found Hach shot into car atclose range (10 ft) without also finding all elements of impliedmalice.

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• Post-Chun developments:

• Retroactivity/habeas. In re Lucero (2011) 200 Cal.App.4th 38. Chunis fully retroactive, and a challenge to submission of the felony-murdertheory could be raised in a post-affirmance state habeas petition. Although a similar challenge had been raised and rejected in the pre-Chun direct appeal, the claim was cognizable under the “change in thelaw” exception to the usual habeas procedural bars.

• “Merger” limitation inapplicable to first-degree felony murder. People v. Farley (2009) 46 Cal.4th 1053. • Merger prohibition on use of an “assaultive” felony as a felony-

murder predicate does not apply to first-degree murder, because§ 189 explicitly codifies the first-degree rule’s application tospecific enumerated felonies, including burglary. Consequently,first-degree felony-murder applies to burglary, even where thetarget crime of the burglary is an intended felony assault of thevictim. (Overruling People v. Wilson (1969) 1 Cal.3d 431.)

• Pursuant to due process limitation on retroactive application of aunforeseeable judicial enlargement of penal liability (i.e.,overruling of the Wilson limitation), that holding is prospectiveand applies only to crimes committed after Farley opinion.

VOLUNTARY MANSLAUGHTER – FELONY ASSAULT WITHOUTMALICE

• People v. Bryant (2011) 198 Cal.App.4th 1, review gr., S196365. “Mayvoluntary manslaughter be premised on a killing without malice that occursduring commission of an inherently dangerous assaultive felony?” • Bryant concerns the “Garcia theory” of voluntary manslaughter, which

posits that a homicide during a felony assault constitutes voluntarymanslaughter if the defendant lacks the mental state of maliceaforethought. See People v. Garcia (2008) 162 Cal.App.4th 18.

• Bryant-Garcia voluntary manslaughter issue appears to represent flip-side of felony-murder “merger” issues addressed in People v. Chun. • Under Chun (and prior merger cases), “inherently dangerous

assaultive felony” cannot serve as felony-murder predicate.

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• Under reasoning of Garcia, where the facts do not otherwisesupport malice, a homicide during an assaultive felony is deemedvoluntary manslaughter. It remains to be seen whether SupremeCourt will endorse the Garcia theory of manslaughter in Peoplev. Bryant.

VOLUNTARY MANSLAUGHTER – FEDERAL CONSTITUTIONAL ERROR

• Recap: the Breverman/Mullaney Question. Per Justice Kennard’sBreverman dissent, an erroneous refusal of instructions on heat-of-passion orimperfect self-defense represents federal constitutional error due to the “uniquerelationship between murder and voluntary manslaughter.” People v.Breverman (1998) 19 Cal.4th 142, 188-191 (Kennard, J., dissent):• Under long standing Cal. law, provocation or heat-of-passion negates

malice aforethoughts. E.g., People v. Rios (2003) 23 Cal.4th 450, 462.• Where a ground negates malice or another element of offense,

prosecution must bear reasonable doubt burden. Mullaney v. Wilbur(1975) 421 U.S. 684.

• An erroneous refusal of instructions on either malice-negating groundresults in incomplete instructions on the malice element of murder,removes a contested issue from the jury, and completely relieves theprosecution of its reasonable doubt burden on that issue.

• Cal. Supreme Court hasn’t decided. In Breverman itself and again in Moye,the Supreme Court majority found the Mullaney argument was not properlybefore it and declined to consider the issue. “The issues presented by such aclaim must properly await a case in which they have been clearly raised andfully briefed.” Breverman, 19 Cal.4th at 170 fn. 19; see also People v. Moye(2009) 47 Cal.4th 547, 558 fn. 5 (same). Hence, the Mullaney issue remains anopen question in California.

• Cal. Supreme Court orders appellate consideration of constitutional issue.• People v. Thomas (1 Dist. A129933; May 16, 2002) 2012 WLst

1744656. Unpublished 2-1 decision finds denial of heat-of-passioninstructions harmless under Watson. No discussion of briefs’ federalconstitutional argument.

• People v. Thomas, S203557 (Aug. 29, 2012). Grant-and-transfer orderremands to First Dist., Div. 3 “with directions to address defendant’scontention that the trial court’s refusal to instruct on heat of passion

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voluntary manslaughter constituted federal constitutional error.” • In addition to Mullaney theory, Thomas also presents alternative ground

for finding federal error – denial of due process right to instructions on“defense theory of the case.”

VOLUNTARY MANSLAUGHTER – HEAT OF PASSION

• Provocation standard. People v. Beltran, S192644, currently pending in theSupreme Court, poses both instructional and prosecutorial misconductarguments concerning the common prosecutorial tactic of arguing that heat-of-passion requires provocation of a type that would drive an ordinary person tokill.• Per People v. Najera (2006) 138 Cal.App.4th 212, correct test is whether

the provocation would induce an ordinary person to act rashly andwithout judgment.

• Unlike Najera (which found such a prosecutorial statement harmless inlight of CALJIC 8.42’s correct formulation), Beltran involves acombination of prosecutorial statements and a now-superseded versionof CALCRIM 570.

• Cooling period. People v. Hach (2009) 176 Cal.App.4th 1450. Courtaddresses heat-of-passion “cooling period” in the course of finding anotherinstructional error (submission of invalid felony-murder theory) harmless,• Although the trial court had instructed on a heat-of-passion theory, the

appellate court finds that the circumstances were insufficient as a matterof law to support that theory.

• Hach “had sufficient time to cool down,” where his wife had left him forthe victim several days earlier. Hach had waited several hours and haddriven around searching for his wife and the victim before the shooting.Because cooling period precluded a voluntary manslaughter verdict,court finds the submission of the invalid felony-murder theory was notprejudicial to jurors’ consideration of the manslaughter theory.

• Prejudice. People v. Ramirez (2010) 189 Cal.App.4th 1483. Appellate courtfinds prejudicial error (under Watson) in refusing heat passion/voluntarymanslaughter instructions, but publishes only its prejudice discussion, not erroranalysis.

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• Court’s prejudice finding emphasizes credibility problems ofprosecution witnesses, “who themselves had gang affiliations, madeinconsistent statements at various times, and might have pinned thecrime on Ramirez in order to conceal their own guilt.” Ramirez at 1487.

• Neither the first-degree murder verdict nor the gang enhancementfinding cured the failure to instruct on heat of passion. “An intentionalkilling in a sudden quarrel or heat of passion is still voluntarymanslaughter.” Id. at 1488 & fn. 4 (emphasis in original).”

VOLUNTARY MANSLAUGHTER – IMPERFECT SELF-DEFENSE

• Self-defense instructions don’t automatically require imperfect self-defense. People v. Valenzuela (2011) 199 Cal.App.4th 1214. Defendant’saccount that occupants of another car pursued him in high speed chase amdshouted out gang references, that one of them appeared to have a gun, and thathe heard a “popping” sound supported trial court’s delivery of reasonable self-defense instructions. But trial court properly refused to instruct on imperfectself-defense. Defendant’s account, if believed, supported reasonable self-defense, but not unreasonable self-defense.• “[T]here was not substantial evidence that his belief was unreasonable..”

Valenzuela at 1229.• “It cannot be said ... that if the jury credited Valenzuela's testimony, his

actual belief that he was in imminent danger might also be deemedunreasonable.” Valenzuela at 1228.

• Delusion. People v. Elmore, review granted, S188238: “Does the doctrine ofimperfect self-defense apply when the defendant’s actual, but unreasonable,belief in the need to defend himself was based solely on a psychotic delusion?”

• Necessity of fear of imminent harm. • People v. Lopez (2011) 199 Cal.App.4th 1297. Upholds both

CALCRIM 571 and a prosecution-requested special instructionproviding that the danger “must appear to the defendant as immediateand present and not prospective or even in the near future.”• “Imminent,” as used in CALCRIM 571 (actual belief in

“imminent danger”) does not have a technical legal meaningdifferent “in any meaningful way” from its “common everyday

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meaning.” Hence, no sua sponte duty to define “imminent.”SPECIAL CIRCUMSTANCES/FELONY-MURDER

Two recent Supreme Court cases have reversed special circumstances, due tofailure to instruct on the additional elements that distinguish the felony-murderspecial circumstance from the felony-murder theory of first-degree murderliability.

• Reckless disregard. People v. Mil (2012) 53 Cal.4th 400. Prejudicial failureto instruct on the Tison elements (Tison v. Arizona (1987) 481 U.S. 137),incorporated into Pen. Code § 190.2(d)) under which the felony-murder specialcircumstance applies to a non-killer aider/abettor only if he was a “majorparticipant” in the predicate felony and acted with “reckless disregard forhuman life.” • Prejudice analysis for omission of special circumstance elements.

Although the omission involved multiple elements of the felony-murderspecial circumstance, the error was non-structural and therefore subjectto Chapman.

• The omission was prejudicial under Chapman, because the conflictingevidence could have been susceptible to a “contrary finding” on the“reckless indifference” element (citing Neder v. United States (1999)527 U.S. 1, 19): “[A] rational juror, given proper instructions, couldhave had a reasonable doubt whether defendant was subjectively awareof a grave risk of death when he participated in this burglary androbbery.” Mil at 419.

• Mil is a good reminder that Chapman-Neder prejudice review ofremoval of an issue requires the opposite perspective than the traditionaldeference to a factfinder’s verdict. Although the evidence in Mil wouldhave been sufficient to support a “reckless indifference” finding, “ourtask in evaluating the prejudice from the instructional error is whetherany rational factfinder could have come to the opposite conclusion.” Mil at 418 (emphasis in original).

• Independent felonious purpose. People v. Brent (2012) 53 Cal.4th 599. Prejudicial failure to instruct on the “independent felonious purpose” (Peoplev. Green (1980) 27 Cal.3d 1) requirement for the felony murder specialcircumstance.

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• Trial court substituted wrong felony (assault with force likely to causegreat bodily injury) in one portion of special circumstance instruction(CALJIC 8.81.17). As delivered, the instruction failed to require thejurors to determine whether the murder was carried out to advance orfacilitate escape from the predicate felony of kidnapping.

• That modification effectively removed the requirement “that defendantkidnapped [the victim] for an independent felonious purpose and ... thatthe kidnapping was not merely incidental to the murder. Brent at 612(emphasis in original).

• The error was prejudicial under Chapman where the jury’s mid-deliberations query to the court demonstrated the jurors’ “primary focus”on the misinstruction.

JUVENILE LWOP – GRAHAM’S AND MILLER’S IMPLICATIONS FORCALIFORNIA

• Caballero: Unconstitutionality of “de facto” LWOP for attempted murderand other non-homicide offenses.

• Categorical bar on LWOP for juvenile non-homicide offenses. Grahamv. Florida (2010) 130 S.Ct. 2011. Eighth Amendment bars a sentenceof life without possibility of parole for a juvenile convicted of a non-homicide offense.

• Applicability of Graham to “de facto” LWOP. People v. Caballero(2012) 55 Cal.4th 262. Although Graham itself concerned a literalsentence of life without parole, the California Supreme Court finds thatits ban applies equally to a “de facto” LWOP such as the “110 years tolife” in Cabellero.• “[S]entencing a juvenile offender for a nonhomicide offense to a

term of years with a parole eligibility date that falls outside thejuvenile offender's natural life expectancy constitutes cruel andunusual punishment in violation of the Eighth Amendment.”

• California Supreme Court reads Graham as proscribing LWOPfor any juvenile convicted of “nonhomicide” offenses, includingattempted murder. (Virtually no explicit discussion of this pointin majority opinion. See Justice Werdegar’s concurring opinion

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(also joined by Justice Liu).)• Though not explicitly discussed in majority opinion, the

decision also effectively rejects any distinction based onthe number of non-homicide offenses. (Caballero’s 110-to-life sentence consisted of base terms and firearm useenhancements for three attempted murder convictionsarising out of single shooting incident.)

• Remedy. Caballero leaves many questions open as to the preciseremedy for a de facto LWOP sentence.• Per Graham, “a state must provide a juvenile offender ‘with some

realistic opportunity to obtain release’ from prison during his orher expected lifetime.”

• “Because every case will be different,” Supreme Court “will notprovide trial courts with a precise time frame for setting thesefuture parole hearings in a nonhomicide case.” But sentence“must provide him or her a ‘meaningful opportunity to obtainrelease based on demonstrated maturity and rehabilitation’ underGraham's mandate.”

• The Caballero opinion “urge[s] the Legislature to enactlegislation establishing a parole eligibility mechanism thatprovides a defendant serving a de facto life sentence withoutpossibility of parole for nonhomicide crimes that he or shecommitted as a juvenile with the opportunity to obtain release ona showing of rehabilitation and maturity.”

• The disposition paragraph of the Supreme Court opinion“reverse[s] the judgment of the Court of Appeal and remand[s]the matter for reconsideration in light of this opinion.”• However, in the body of the opinion, the Supreme Court

states: “Defendants who were sentenced for crimes theycommitted as juveniles who seek to modify life withoutparole or equivalent defacto sentences already imposedmay file petitions for a writ of habeas corpus in the trialcourt in order to allow the court to weigh the mitigatingevidence in determining the extent of incarcerationrequired before parole hearings.”

• Justice Werdegar’s concurrence (also joined by Justice Liu)

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noted that the opinion may not provide sufficient “guidanceon remand.” Because a de facto LWOP sentence for a non-homicide juvenile offense is unconstitutional “at theoutset,” the appropriate appellate disposition is to “remand... with directions to resentence defendant to a term ... that,although undoubtedly lengthy, provides ... a ‘meaningfulopportunity to obtain release based on demonstratedmaturity and rehabilitation.’ [Citing Graham.]”

• Pending further case law on the subject, counsel should argue thatCaballero requires a remand for resentencing whenever theissues arises on direct appeal from the sentence, as in Caballeroitself. The opinion’s reference to the availability of relief throughsuperior court habeas petitions should be read as guidance forinmates whose cases are no longer pending on direct appeal. Ifa case is still on direct review, the appropriate appellate remedyshould be a remand for resentencing.

Miller v. Alabama: Eighth Amendment bar on mandatory LWOP for juvenilehomicide.

• Miller v. Alabama (2012) 132 S.Ct. 2455: Drawing on its recent casescategorically barring the death penalty for offenders under the age of 18(Ropers v. Simmons) and barring LWOP for minors convicted of non-homicideoffenses (Graham v. Florida),, the Supreme Court holds that mandatoryLWOP for juveniles convicted of murder violates the Eight Amendment.

• “Such a scheme prevents those meting out punishment from consideringa juvenile’s ‘lessened culpability’ and greater ‘capacity for change’[citing Graham] and runs afoul of our cases’ requirement ofindividualized sentencing for defendants facing the most seriouspenalties.” Miller at 2460.

• Ban on mandatory juvenile LWOP, even for murder, represents a“confluence” of two lines of Eighth Amendment authorities:• (1) Roper’s and Graham’s holdings regarding the developmental

and cognitive differences between adults and minors and thelesser “moral culpability” of juvenile offenders; and

• (2) Longstanding Eight Amendment standards for capital

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sentencing of adult offenders, “requiring that sentencingauthorities consider the characteristics of the offender and thedetails of his offense before sentencing him to death.” Id. at2463-2464.

• Choice of LWOP as punishment for a juvenile’s homicide offensesimilarly requires an individualized sentencing determination. Thatdecision must take into account “the mitigating qualities of youth” andits “hallmark features,” including “immaturity, impetuosity, and failureto appreciate risks and consequences.” Sentencing court must alsoweigh the minor’s “family and home environment ... from which hecannot usually extricate himself, no matter how brutal or dysfunctional.”

• Justices Breyer and Sotomayor would recognize a further, categoricalbar on LWOP for any “juvenile offender did not kill or intend to kill”(such as a non-killer felony-murder accomplice). Under reasoning of Graham and Miller majority opinions, such a juvenile offender “has atwice diminished moral culpability” as compared to an “adult murderer.” Miller at 2475-2477 (Breyer, J., concur.).

Implications for California.

• Unlike Alabama and Arkansas statutes struck down in Miller, Californianominally does not make LWOP “mandatory” for juveniles convicted ofspecial circumstance murder. Under Pen. Code § 190.5(b), where thedefendant was 16 or 17 at the time of the offense, the punishment for specialcircumstance murder “shall be confinement in the state prison for life withoutpossibility of parole or, at the discretion of the court, 25 years to life.” (Emphasis added.)

Although § 190.5(b)’s allowance of the possibility of a parole-eligible term of25 to life does not present a clear-cut “mandatory” LWOP statute, thereasoning of Miller provides several potential grounds for challenges tojuvenile LWOP terms under California’s nominally “discretionary” regimen:

• The inverted presumption. Although § 190.5(b) gives a sentencing court “discretion” to sentence a juvenile defendant to 25-to-life rather than LWOP,the statute (as judicially construed) stacks the deck against leniency. The cases

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consistently construe the statute as establishing a “presumption” in favor ofLWOP. People v. Guinn (1994) 28 Cal.App.4th 1130; accord, e.g., People v.Blackwell (2011) 202 Cal.App.4th 144. • Yet the reasoning of Miller v. Alabama should require the opposite

presumption: “[G]iven all we have said in Roper, Graham, and thisdecision about children's diminished culpability and heightened capacityfor change, we think appropriate occasions for sentencing juveniles tothis harshest possible penalty will be uncommon.” It should be reservedfor “‘the rare juvenile offender whose crime reflects irreparablecorruption.’” Miller at 2469. In view of those admonitions, Millershould require a presumption against LWOP for any offender under theage of 18.

• Regardless of whether the sentencing court explicitly referred to thestandard for its § 190.5(b) determination, the judge is presumed to havefollowed California law defining LWOP as the presumptive choice. Because the error appears similar to an erroneous burden of proof , itshould not be salvageable through harmless error analysis.

• Failure to consider the paramount factors concerning a minor’s lesserculpability. While the “inverted presumption” argument potentially applies toall or most juvenile LWOP’s imposed under § 190.5(b), other Miller-basedchallenges may depend on the particulars of the sentencing hearing. OneCalifornia opinion has already remanded for a new hearing, where thesentencing court did not place the age- and maturity-related considerationshighlighted in Miller “at the forefront” of its discretionary determination.People v. Hoffman (5 Dist. F061127; July 30, 2012) 2012 WL 3066392. th

• The Hoffman sentencing court had looked to traditional aggravating andmitigating circumstances (Cal. Rules of Court, rules 4.421, 4.423). However, “those factors ... cannot supplant the factors deemedparamount in Miller: the juvenile's ‘chronological age and its hallmarkfeatures—among them, immaturity, impetuosity, and failure toappreciate risks and consequences,’ ‘the family and home environmentthat surrounds him—and from which he cannot usually extricatehimself—no matter how brutal or dysfunctional,’ ‘the circumstances ofthe homicide offense, including the extent of his participation in theconduct and the way familial and peer pressures may have affected him,’‘that he might have been charged and convicted of a lesser offense if not

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for incompetencies associated with youth – for example, his inability todeal with police officers or prosecutors (including on a plea agreement)or his incapacity to assist his own attorneys,’ and ‘the possibility ofrehabilitation.’”

• Surprisingly, though Hoffman represents the first application of Millerto a California juvenile LWOP sentencing determination, the FifthDistrict did not publish the opinion.)

• “Categorical” challenge to LWOP for non-killer felony-murder aider/abettor. The Miller majority left open whether there should be a “categorical” ban onLWOP for a juvenile accomplice convicted on a felony-murder theory. However, Justices Breyer and Sotomayor would recognize a proscription onLWOP for any juvenile who “neither kills nor intends to kill the victim.” Miller at 2475-2477 (Breyer, J., concur.).• California’s felony-murder special circumstance applies to an aider-

abettor who does not personally kills, so long as he was a “majorparticipant” in the predicate felony and acted with “reckless disregardfor human life.” § 190.2(d). The “major participant”/“recklessdisregard” formulation derives directly from Tison v. Arizona (1987)481 U.S. 137. Under Tison, “reckless disregard” for life is deemed asufficient predicate for imposition of the death penalty on an adultfelony-murder participant.

• As discussed in Justice Breyer’s concurrence, “even juveniles who meetthe Tison standard of ‘reckless disregard, may not be eligible for lifewithout parole.” Under the reasoning of Graham v. Florida, “[t]he onlyjuveniles who constitutionally may be sentenced to [LWOP] are thoseconvicted of homicide offenses who ‘kill or intend to kill.’” Miller at2476 (Breyer, J., concur.).

• The standard California instructions allow a felony-murder specialcircumstance finding as long as an aider/abettor acted with “recklessdisregard,” but do not require a finding of specific intent to kill. A“categorical” argument along the lines of Justice Breyer’s concurrence provides a potential basis to challenge the LWOP sentence for anyjuvenile convicted on an aiding/abetting theory (including in cases inwhich jurors rejected personal weapon use allegations).

• State habeas. Because Miller v. Alabama redefines the constitutional limits for

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imposition of LWOP on a juvenile offender, its holding should apply to allinmates currently serving such sentences, including cases that have alreadybecome “final” on direct review. A full discussion of the retroactivity topic isbeyond the scope of these materials, but two points merit brief note:

• State habeas is available to consider a claim based on anintervening change in the law (even where a similar argument hadbeen raised and rejected on appeal, prior to that change). In reHarris (1993) 5 Cal.4th 813, 841; In re Lucero (2011) 200Cal.App.4th 38, 43-45. A recent California Supreme Courtdecision confirms that this “change in the law” rationale appliesto a cruel-and-unusual punishment claim based on new case law. See In re Coley (2012) 55 Cal.4th __ [146 Cal.Rptr.3d 382, 392].

• Miller itself – or more precisely, its companion case –demonstrates that the issue is properly cognizable on post-affirmance collaeral review. While Miller was a direct appeal,theconsolidated companion case, Jackson v. Hobbs, arose on acollateral review petition in the Arkansas courts, several yearsafter affirmance of the sentence on direct appeal. Miller at 2461-2462. Despite those different procedural postures, the SupremeCourt vacated the mandatory LWOP terms and remanded forresentencing in both cases. Miller at 2475.

Breaking News! New Statutory Procedure for Reconsideration of Juvenile LWOPs

As these materials are going to press, California has enacted a new statutoryprocedure for defendants to seek reconsideration of LWOP sentences imposedfor crimes committed as juveniles – S.B. 9 (signed Sept. 30, 2012; effectiveJan. 1, 2013). A new statutory subdivision, Pen. Code § 1170(d)(2), establishes a mechanism for a defendant who has served at least 15 years ofan LWOP term for an offense as a juvenile to petition the superior court to“recall” and reconsider his sentence. The full text of § 1170(d)(2) is reprintedat the end of these materials.

§ 1170(d)(2) application and hearing process.

• Application. The “petition for recall and resentencing” must include“the defendant’s statement describing his remorse and work toward

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rehabilitation.” (Subd. (d)(2)(B).) The case must come within one ofthe following categories :• (i) conviction based on “felony murder or aiding and abetting

murder”;• (ii) no “prior “juvenile felony adjudications for assault or other

felony crimes with a significant potential for personal harm....”;• (iii) commission of the offense “with at least one adult

codefendant”; or• (iv) acts “that tend to indicate rehabilitation or the potential for

rehabilitation” including participation in available “rehabilitative,educational, or vocational programs,” “self-study for self-improvement, or showing evidence of remorse.”

The statute explicitly excludes offenses in which the defendant“tortured” a victim or in which the victim was a “public safety official,”“law enforcement officer,” or “firefighter.” (Subd. (d)(2)(A)(ii))

• Review of the application/granting a recall hearing. The prosecutionmay file a reply to the recall petition within 60 days. (Subd. (d)(2)(D)) “If the superior court finds by a preponderance of the evidence that thestatements in the petition are true, the court shall hold a hearing toconsider whether to recall the sentence....” (Subd. (d)(2)(E)) Notwithstanding the statute’s use of a preponderance burden, thesuperior court will apparently make this factual determination based ona review of the papers, rather than any evidentiary proceeedings.

• Hearing. The function of a recall hearing is for the superior court todetermine, in its “discretion,” whether to grant a new sentencinghearing. However, the “recall” hearing contemplated by the statuteclosely resembles an actual sentencing hearing. The statute includes anon-exclusive list of factors “that the court may consider” in exercisingits discretion. These discretionary criteria repeat the same foureligibility categories for the original application (felony-murder oraiding/abetting; no prior violent juvenile adjudications; adult co-defendant; and evidence of rehabilitation), as well as four additionalfactors (Subd. (d)(2)(F)):• (iv) “the defendant had insufficient adult support or supervision

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and had suffered from psychological or physical trauma, orsignificant stress”;

• (v) “cognitive limitations due to mental illness, developmentaldisabilities, or other factors that did not constitute a defense, butinfluenced the defendant’s involvement”;

• (vii) maintenance of “family ties or connections” and eliminationof “contact with individuals outside of prison who are currentlyinvolved with crime”;

• (viii) “no disciplinary actions for violent activities in the last fiveyears” in which the defendant was the “aggressor.”

• The court may also “consider any other criteria” it “deemsrelevant,” but must “identif[y] them on the record” and statereasons for its findings on their applicability. (Subd. (d)(2)(I).)

• Resentencing. If the court does exercise its discretion to recall thesentence, it will then conduct a new hearing to “resentence the defendantin the same manner as if the defendant had not previously beensentenced” (but the new sentence must be no greater than the originalone). (Subds. (d)(2)(E) & (d)(2)(G)). This resentencing hearing willevidently be separate from the recall hearing, and victims and victims’family members “shall be notified of the resentencing hearing and shallretain their rights to participate.” (Subd. (d)(2)(G))

• Subsequent applications. If the superior court denies the petition torecall the sentence, the defendant has up to two further opportunities tofile recall petitions. He may submit another such petition after he hasbeen in custody “for at least 20 years” and may file a “final petition”“after having served 24 years.” (Subd. (H))

Initial thoughts and questions. S.B. 9 creates a statutory avenue for inmates toseek reconsideration of LWOP sentences where none previously existed. It ishard to predict at this juncture what proportion of the roughly 300 juvenileLWOP inmates in California may eventually obtain relief under the new §1170(d)(2) procedure. However, the statute raises a number of procedural andsubstantive questions.• Eligibility. Most juveniles under LWOP terms will likely come within

the four categories listed in § 1170(d)(2)(B). Indeed, category (i) –

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juveniles convicted of felony murder or as aiders/abettors probablyrepresents the majority of juvenile offenders under such sentences. (Note that, due to the disjunctive formulation, the provision is notrestricted to felony-murder aider-abettors. A direct perpetratorconvicted under a felony-murder theory should also qualify.)

• Counsel. There is no reference to appointment of counsel in the statute. By analogy to habeas corpus, it appears very likely that a superior courtwill be required to appoint counsel if it actually orders a recall“hearing.” These recall hearings appear to blend elements of habeasevidentiary hearings and sentencing hearings, each of which requireappointed counsel. Cf. In re Clark (1993) 5 Cal.4th 750, 780 (requiringappointment of habeas counsel upon issuance of OSC). It is much moredoubtful, however, that courts will be willing to appoint counsel to assistdefendants in preparing § 1170(d)(2) petitions in the first place.

• Remorse and rehabilitation. It remains to be seen what the courts willdemand of the requisite “defendant’s statement describing his or herremorse and work toward rehabilitation.” (Subd. (d)(2)(B).) Note thatcases reviewing parole denials by the Board of Parole Hearings or theGovernor emphasize that “an inmate need not agree or adopt the officialversion of a crime in order to demonstrate insight and remorse.” In reTwinn (2010) 190 Cal.App.4th 447, 466; In re Sanchez (Aug. 31, 2012,pub. Oct. 1, 2012; G046189) __ Cal.App.4th __; accord, e.g., In reAguilar (2008) 168 Cal.App.4th 1479, 1491 (no requirement thatprisoner must “‘admit his guilt or change his story to be found suitablefor parole”).

• Discretion to recall sentence. § 1170(d)(2) appears to give a court verybroad discretion in determining whether or not to recall a sentence. Inparticular, the statute does not indicate how a court is to weigh thevarious listed factors. It does not explicitly require resentencing if thecourt finds certain factors.

• Resentencing. Notwithstanding the apparent breadth of the court’sdiscretion whether to recall a sentence, its discretion in the laterresentencing hearing will be much more limited. Any resentencing willbe “conducted in the same manner as if the defendant had not beenpreviously sentenced.” § 1170(d)(2)(G). That direction suggests thatany new sentencing hearing will again be conducted under the terms of§ 190.5(b)(2), including its “presumption” of LWOP.

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• Appeal of denial of petition. The statute does not specify whether thedenial of a § 1170(d)(2) petition (either with or without a hearing) willbe appealable. A defendant may not appeal a court’s refusal to recall aprison sentence under former § 1170(d) (now § 1170(d)(1)), becausethere is no right to move for such a recall in the first place. A court mayorder a conventional 1170(d) recall only on its own motion.. People v.Pritchett (1993) 20 Cal.App.4th 190, 194. However, that rationaleshould not apply to a § 1170(d)(2) denial: The statute does confer a rightto petition for a recall and establishes governing criteria, including thata court “shall” hold a hearing under specified circumstances. Consequently, the denial of a defendant’s § 1170(d)(2) applicationshould be appealable as an order after judgment affecting substantialrights. § 1237(b).

• Effect on appellate and habeas review of LWOP sentences. It is difficultto predict how the enactment of the § 1170(d)(2) procedure will affectappeals or habeas petitions challenging LWOP sentences on the Millerv. Alabama grounds discussed earlier. The state may attempt to arguethat such terms are not true LWOP’s anymore, because inmates willhave opportunities to petition for “recall” of their sentences after theyhave served 15, 20 or 24 years. The state may also oppose habeaspetitions on the ground that any post-conviction challenges to LWOPmust proceed through the new statutory mechanism. The short answerto both these substantive and procedural objections is that § 1170(d)(2)does not resolve the constitutional defects in the § 190.5(b) sentencingprocess, because the “presumption” of LWOP remains in place at anyresentencing. Moreover, because § 1170(d)(2) establishes a whollydiscretionary reconsideration mechanism, it does not provide a forum forlitigation of the constitutional issues raised by Miller v. Alabama.

Inmates will certainly want to avail themselves of the § 1170(d)(2) procedureafter they have served the requisite 15 years, especially if they appears to havestrong evidence of the mitigating and rehabilitative factors listed in subd.(d)(2)(F). However, the new statute is best viewed as an additional procedurefor reconsideration, directed to a sentencing court’s discretion. Direct appealand habeas remain the proper forums for presentation of the constitutionalclaims arising from Miller v. Alabama.

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APPENDIX: STATUTORY PROCEDURE FOR RECONSIDERATION OF JUVENILE LWOP

New Pen. Code § 1170(d)(2), enacted by S.B. 9 (eff. Jan. 1, 2013)

(2) (A) (i) When a defendant who was under 18 years of age at the time of the commissionof the offense for which the defendant was sentenced to imprisonment for life without thepossibility of parole has served at least 15 years of that sentence, the defendant may submitto the sentencing court a petition for recall and resentencing.

(ii) Notwithstanding clause (i), this paragraph shall not apply to defendants sentenced to lifewithout parole for an offense where the defendant tortured, as described in Section 206, hisor her victim or the victim was a public safety official, including any law enforcementpersonnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or anyfirefighter as described in Section 245.1, as well as any other officer in any segment of lawenforcement who is employed by the federal government, the state, or any of its politicalsubdivisions.

(B) The defendant shall file the original petition with the sentencing court. A copy of thepetition shall be served on the agency that prosecuted the case. The petition shall include thedefendant's statement that he or she was under 18 years of age at the time of the crime andwas sentenced to life in prison without the possibility of parole, the defendant's statementdescribing his or her remorse and work towards rehabilitation, and the defendant's statementthat one of the following is true:

(i) The defendant was convicted pursuant to felony murder or aiding and abetting murderprovisions of law.

(ii) The defendant does not have juvenile felony adjudications for assault or other felonycrimes with a significant potential for personal harm to victims prior to the offense for whichthe sentence is being considered for recall.

(iii) The defendant committed the offense with at least one adult codefendant.

(iv) The defendant has performed acts that tend to indicate rehabilitation or the potential forrehabilitation, including, but not limited to, availing himself or herself of rehabilitative,educational, or vocational programs, if those programs have been available at his or herclassification level and facility, using self-study for self-improvement, or showing evidenceof remorse.

(C) If any of the information required in subparagraph (B) is missing from the petition, orif proof of service on the prosecuting agency is not provided, the court shall return thepetition to the defendant and advise the defendant that the matter cannot be consideredwithout the missing information.

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(D) A reply to the petition, if any, shall be filed with the court within 60 days of the date onwhich the prosecuting agency was served with the petition, unless a continuance is grantedfor good cause.

(E) If the court finds by a preponderance of the evidence that the statements in the petitionare true, the court shall hold a hearing to consider whether to recall the sentence andcommitment previously ordered and to resentence the defendant in the same manner as if thedefendant had not previously been sentenced, provided that the new sentence, if any, is notgreater than the initial sentence. Victims, or victim family members if the victim is deceased,shall retain the rights to participate in the hearing.

(F) The factors that the court may consider when determining whether to recall andresentence include, but are not limited to, the following:

(i) The defendant was convicted pursuant to felony murder or aiding and abetting murderprovisions of law.

(ii) The defendant does not have juvenile felony adjudications for assault or other felonycrimes with a significant potential for personal harm to victims prior to the offense for whichthe sentence is being considered for recall.

(iii) The defendant committed the offense with at least one adult codefendant.

(iv) Prior to the offense for which the sentence is being considered for recall, the defendanthad insufficient adult support or supervision and had suffered from psychological or physicaltrauma, or significant stress.

(v) The defendant suffers from cognitive limitations due to mental illness, developmentaldisabilities, or other factors that did not constitute a defense, but influenced the defendant'sinvolvement in the offense.

(vi) The defendant has performed acts that tend to indicate rehabilitation or the potential forrehabilitation, including, but not limited to, availing himself or herself of rehabilitative,educational, or vocational programs, if those programs have been available at his or herclassification level and facility, using self-study for self-improvement, or showing evidenceof remorse.

(vii) The defendant has maintained family ties or connections with others through letterwriting, calls, or visits, or has eliminated contact with individuals outside of prison who arecurrently involved with crime.

(viii) The defendant has had no disciplinary actions for violent activities in the last five yearsin which the defendant was determined to be the aggressor.

(G) The court shall have the discretion to recall the sentence and commitment previouslyordered and to resentence the defendant in the same manner as if the defendant had notpreviously been sentenced, provided that the new sentence, if any, is not greater than the

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initial sentence. The discretion of the court shall be exercised in consideration of the criteriain subparagraph (B). Victims, or victim family members if the victim is deceased, shall benotified of the resentencing hearing and shall retain their rights to participate in the hearing.

(H) If the sentence is not recalled, the defendant may submit another petition for recall andresentencing to the sentencing court when the defendant has been committed to the custodyof the department for at least 20 years. If recall and resentencing is not granted under thatpetition, the defendant may file another petition after having served 24 years. The finalpetition may be submitted, and the response to that petition shall be determined, during the25th year of the defendant's sentence.

(I) In addition to the criteria in subparagraph (F), the court may consider any other criteriathat the court deems relevant to its decision, so long as the court identifies them on therecord, provides a statement of reasons for adopting them, and states why the defendant doesor does not satisfy the criteria.

(J) This subdivision shall have retroactive application.

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