By Brinda Kalita
ANAHEIM, CA- Orange County Superior Court last week reversed an order which denied Hector Pacheco’s PC § 1170.95 petition, a chance to be resentenced out of his murder conviction.
Pacheco previously was found guilty of first-degree murder as an aider and abettor, attempted murder and gang participation. He was sentenced to 50 years to life plus a consecutive life term.
In 2019, Pacheco filed a Penal Code section 1170.95 petition, which would cancel his murder conviction and allow him to be resentenced.
This petition was first denied, with CA Attorney General Rob Bonta stating that the jury’s true finding on the gang’s special circumstances instructions would not entitle Pacheco to relief under section 1170.95.
However, Attorney Susan L. Jordan, who is representing Pacheco, disagreed with the decision being made by the trial court and argued for Pacheco to be resentenced.
In her argument for Pacheco’s resentencing, Attorney Jordan discussed the theory behind how Pacheco’s verdict was determined in the first place.
Originally, people were held liable for a murder crime either as direct participants, or as aiders and abettors.
The aiders and abettors could then be liable for crimes that they either intentionally helped with or unintentionally helped with, as when they were non-active participants to the crime like getaway drivers, for instance.
Then, if any person was being held liable for crimes that they had unintentionally helped with, they would be convicted under the natural and probable cause doctrine.
In January 2019, however, the CA State Legislature approved SB 1437.
This bill worked “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.”
This meant that the use of the natural and probable cause doctrine to determine liability for crimes by aiders and abettors had become obsolete.
In order to help people who were previously sentenced by the natural and probable cause doctrine, the Senate also enacted PC section 1170.95.
Since Pacheco was originally convicted under the natural and probable cause doctrine, he could no longer be convicted for 1st or 2nd degree murder due to the new change in the law, his attorney argued. And she added the trial court erred denying him the 1170.95 petition.
Additionally, Attorney Jordan reasoned how the jury at the time of Pacheco’s original sentencing used the natural and probable cause doctrine in determining Pacheco’s verdict.
Due to Pacheco’s gang involvement, the jury was able to find that Pacheco intended to kill someone. But, in fact, his attorney said, the act of doing something to directly aid the target crime, could not be established without the use of the natural and probable cause theory.
In essence, without the use of the natural and probable cause theory, Attorney Jordan argued that there was no proof that Pacheco directly aided and abetted the crime of murder.
Because of this, Pacheco is entitled to an evidentiary hearing on remand as to his murder conviction, Jordan maintained.
Judge Michael A. Leversen concurred with Attorney Jordan’s opinion and reversed the denial of Hector Pacheco’s 1170.95 petition.