Posted on January 1, 2019
Petition to Vacate Murder Conviction – California Penal Code 1170.95 PC
The California legislature passed Senate Bill (SB) 1437 which is written under penal code 1170.95 pc. This law changed the basis for someone to be convicted of murder. It applies retroactively allowing those that fall under its rules, to petition the court to be resentenced or have their murder conviction vacated entirely.
The legislative intent behind the enactment of this law is to ensure that criminal sentences are fairly addressed to match the culpability of the individual and assist in the reduction of prison overcrowding. The legislature finds that lengthy sentences that are not commensurate with the culpability of the individual who was not the actual killer.
For those seeking to petition for resentencing or vacate their murder conviction, there are two important requirements to establish eligibility. Your conviction must have been the result of liability under: (1) felony murder rule; or (2) your conviction was based on the natural and probable consequences theory. Specifically, you cannot succeed on a petition if you were the actual killer. Instead, you were an accomplice – e.g., provided assistance that ultimately resulted in the murder.
Requirements Before Filing Your Petition
A defendant convicted of felony murder or murder under the natural and probable consequences may file a petition in the court where they were sentenced to have their murder conviction vacated or be resentenced if the following apply:
- The charge sheet allowed the prosecutor to proceed under the felony murder or natural and probable consequences theory;
- The defendant was convicted of first or second degree murder after a trial or accepted a plea offer in lieu of trial;
- The defendant cannot be convicted of first or second degree murder because of the passing of SB 1437.
The petition must be served on the prosecuting agency in the county the conviction occurred in. If the judge who sentenced the defendant is not available, the presiding judge will designate another judge to rule on the petition. The petition must include:
- A declaration by the defendant that they are eligible for relief under SB 1437 / penal code 1170.85 based on the requirements set forth above;
- The case number and year of conviction;
- Whether the petitioner requests the appointment of counsel.
If any of the required information is missing or cannot be readily ascertained by the court, then the court may deny the application without prejudice and advise the defendant that it cannot rule on the petition without this necessary information. Fortunately, a denied petition under this basis, will not preclude a defendant from re-petitioning once the information has been retrieved.
Defendant’s Ineligible for Relief Under SB 1437 / PC 1170.95
A defendant is ineligible for relief if their case falls into any of the below circumstances:
- Defendant was the actual killer to the victim;
- Defendant did not actually kill the victim but harbored the intent to kill by aiding and abetting the actual killer in the commission of the murder;
- Defendant was a major participant in the murder and acted with reckless indifference to human life;
- The victim was a police officer engaged in the performance of their duty.
Petition Hearing Formalities and Procedures
The prosecutor must file and serve a response to a defendant’s petition within 60-days of service defendant’s petition and the defendant will have the opportunity to file a reply within 30-days thereafter. The court may grant extensions for responses and replies if either party establishes good cause.
Within 60-days after the judge issues an order to show cause, the court must hold a hearing to determine whether to vacate the conviction or to resentence the defendant. However, the defendant and the prosecution may agree to waive the hearing and stipulate that the defendant is eligible to vacate their conviction. This also applies if a jury or court made a finding that the defendant was either (1) not a major participant, or (2) did not act with reckless indifference to human life.
If a hearing is held, the prosecution holds the burden to prove beyond a reasonable doubt that the defendant is ineligible to vacate their murder conviction or be resentenced. Failing to prove that standard will result in the conviction to be vacated and/or defendant will be resentenced on any remaining counts. Either party may rely on the transcripts of the hearings or trial or produce new or additional evidence. 
If the defendant is entitled to relief, but the murder was charged generically, and the target offense was not charged, the defendant’s conviction must be redesignated as the target offense or underlying felony for resentencing purposes.
In the event a defendant is resentenced, the defendant must be given credit for time served. Thereafter, the judge may order parole supervision for up to three (3) year following the sentence.
Contact Us to Schedule a Free Consultation
If you or a loved one has been convicted of murder and are seeking to vacate the conviction under SB 1437 / Penal Code 1170.95, then contact an experienced Orange County criminal defense lawyer at the Law Offices of John D. Rogers. Our office provides free confidential consultations. This law can allow someone to get a second chance at freedom. It’s important that you retain someone competent and familiar with the new changes in the law. We handle petitions all throughout southern California including Los Angeles, Orange County, Riverside, San Diego, San Bernardino, Ventura, and Santa Barbara.
 See Penal Code 1170.95(a): A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:
(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.
(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.
 See Penal Code 1170.95(b)(1): The petition shall be filed with the court that sentenced the petitioner and served by the petitioner on the district attorney, or on the agency that prosecuted the petitioner, and on the attorney who represented the petitioner in the trial court or on the public defender of the county where the petitioner was convicted. If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition. The petition shall include all of the following:
(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a).
(B) The superior court case number and year of the petitioner’s conviction.
(C) Whether the petitioner requests the appointment of counsel.
 See Penal Code 1170.95(b)(2): If any of the information required by this subdivision is missing from the petition and cannot be readily ascertained by the court, the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information.
 See Penal Code 1170.95(c)
 See Penal Code 1170.95(d)(1)
 See Penal Code 1170.95(d)(3)
 See Penal Code 1170.95(g)