SB 775 modifies Penal Code section 1170.95 by, inter alia, expanding its application to attempted murder and manslaughter, codifying the holding of People v. Lewis (2021) 11 Cal.5th 952, outlining what evidence is admissible at the (d)(3) hearing, and reaffirming the proper burden of proof at the (d)(3) hearing

     On October 5, 2021, Governor Gavin Newsom signed Senate Bill No. 775, effective January 1, 2022, which amends Penal Code section 1170.95. The changes are significant. They are:

• Amendment to subdivision (a) expands eligibility to file a petition to vacate convictions to persons who were convicted of murder based on a theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural probable consequences doctrine or who were convicted of manslaughter.
• Addition of subdivision (b)(3) clarifies that after receiving a petition which is facially sufficient, or where any missing information could readily be ascertained, the court must appoint counsel if petitioner so requests. This subdivision codifies a holding from People v. Lewis (2021) 11 Cal.5th 952, 963.
• Amendment to subdivision (c) clarifies that after the parties submit briefing, the court must hold a hearing to determine whether petitioner has established a prima facie case for relief; and if the court declines to find a prima facie case and issue an order to show cause, it must provide a statement of reasons for its decision
• Amendment to subdivision (d)(3) clarifies two important points: the government's burden and the evidence which can be admitted at the hearing to determine whether petitioner is entitled to relief.
  • With respect to the burden, it is the government that must show, beyond a reasonable doubt, that petitioner is guilty of murder or attempted murder under California law as amended by Senate Bill No. 1437, to defeat relief. The new statute specifically states: “A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petition is ineligible for resentencing.”
  • With respect to evidence that can be admitted at the hearing, the amendment removed language permitting the parties to rely on the record of conviction. Instead, the prior appellate opinion can be considered for the procedural history of the case. The amendment explicitly allows admission of evidence as governed by the Evidence Code. And, it clarifies that evidence admitted at a prior hearing or trial can be admitted during the (d)(3) hearing, only if that evidence is admissible under current law. Notably, hearsay evidence admitted at a preliminary hearing under Penal Code section 872, subdivision (b) (see Whitman v. Superior Court (1991) 54 Cal.3d 1063) must be excluded unless it is admissible pursuant to another exception to the hearsay rule.
• Amendment to subdivision (e) directs that if petitioner is entitled to relief, and a target offense was not charged but rather only murder or attempted murder were generically charged, the conviction shall be redesignated as the target offense or underlying felony for resentencing purposes.
• Addition of subdivision (g) allows defendant to pursue relief based on the changes to Penal Code sections 188 and 189, in the direct appeal. This new subdivision explicitly overrules People v. Gentile (2020) 10 Cal.5th 830, 851-852.
• Amendment to redesignated subdivision (h) sets the maximum permissible parole period after resentencing to be two years instead of three years.