By Linh Nguyen
The California Second District Court of Appeal heard an appeal in which two defendants were denied resentencing under Senate Bill 1437 and section 1170.95 of the Penal Code for a gang-related crime involving a firearm in 2006.
In 2006, defendants and appellants Dana Offley and Robert Mitchell Keller were charged with involvement in a gang-related shooting that led to the death of a person and serious injury of another victim. The defendants were charged with one count of murder, one count of attempted murder and one count of firing into an occupied vehicle. The jury convicted both defendants of all three counts. Offley and Keller appealed. Offley challenged the firearm enhancement on his murder conviction, arguing that there was insufficient evidence to prove that he personally fired the weapon causing the victim’s death. Keller challenged the imposition of a gang enhancement that was wrongly listed in the judgment summary.
The justices sided with the trial court’s judgment for Offley’s appeal because “the Penal Code required the trial judge to enhance Offley’s sentence by 25 years to life regardless of whether he personally discharged a firearm proximately causing death so long as a principal discharged a firearm proximately causing death.”
In January 2019, both defendants filed petitions in the trial court for resentencing under section 1170.95 following the enactment of SB 1437, which was enacted in 2018. Senate Bill 1437 requires proof of personal malice in all murder convictions to eliminate liability for murder. Section 1170.95 establishes a procedure for vacating murder convictions for defendants who could not have been convicted of murder under the new law and resentencing those who were convicted.
Keller claimed that there was no evidence presented that he was the actual killer and that no witness testified that they saw him fire the weapon. Offley also claimed that he did not kill the victim, citing the prosecutor who agreed that the bullet from Offley’s gun did not kill the victim.
The trial court denied Keller and Offley’s petitions without appointing counsel or holding a hearing because the jury found they intentionally fired a weapon at the victim and caused great bodily injury or death.
Before the enactment of SB 1437, a defendant who aided and abetted a crime that resulted in a victim’s death could be convicted of murder even if the defendant personally did not act with malice under the natural and probable consequences doctrine.
The natural and probable consequences doctrine states “a person who knowingly aids and abets criminal conduct is guilty of not only the intended crime but also of any other crime the perpetrator actually commits that is a natural and probable consequence of the intended crime.”
Section 1170.95 created a two-step process for determining a defendant’s eligibility. First, the trial court must determine whether the defendant falls within the provisions of the statute. Next, the court would examine the record of conviction. The trial court cannot reject a defendant’s petition unless it determines that the petitioner is “ineligible for relief as a matter of law.”
The appellate court found that the trial court in Los Angeles County wrongfully denied the defendants’ petitions at the first step because they referred to the original jury’s findings.
The appellate court reverses the denial of Offley’s petition because the enhancement that he challenged does not establish a matter of law that he acted with malice. The justices could not conclude that Offley is “ineligible for relief as a matter of law,” as stated in section 1170.95.
This is because the jury could have possibly relied on the natural and probable consequences doctrine in convicting Offley, which is how the trial court instructed the jury in instruction on conspiracy liability:
“A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime of a co-conspirator to further object of the conspiracy, even though that crime was not intended as a part of the agreed upon objective and even though he was not present at the time of the commission of that crime.”
The justices said they could not exclude the possibility that the jury believed Offley acted without intending to kill Barrales or consciously disregarding that risk. There was a chance the jury concluded Offley intended to take part in a conspiracy with the intent of injuring or intimidating the victim.
The appellate court also reverses the denial of Keller’s petition because the trial court misinterpreted the record.
With these decisions, the appellate court will remand the case with instructions to the trial court to proceed to the second stage of review under section 1170.95.
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