State Supreme Court takes of the question of counsel in felony murder resentencings

The California Supreme Court appeared skeptical of the attorney general's arguments Wednesday that the Legislature intended to allow trial courts to summarily reject resentencing petitions without appointing counsel to represent the petitioner when it amended California's felony murder law to provide an avenue of relief for accomplices convicted of first- or second-degree murder.

The case, which involves a petition that was denied by a superior court judge without granting the convicts' request for legal representation and without holding a hearing, could have broad implications on the retroactive scope of the law.

Enacted in 2019, SB 1437 eliminated felony murder liability under the natural and probable consequences doctrine. It also created a new procedure under Penal Code Section 1170.95 for people convicted of murder under the old law to file a petition for a lighter sentence.

The statute tasks superior court judges with reviewing petitions to determine whether a prima facie case has been made, and if requested, to "appoint counsel to represent the petitioner." Additionally, the statute maintains that if a prima facie showing is made by the petitioner, the court must issue an order to show cause.

Deputy Attorney General Idan Ivri argued the language of 1170.95 was deliberately written in chronological order to preclude the appointment of counsel until a defendant has facially shown they may be eligible for a new sentence.

But sole practitioner Robert D. Bacon of Oakland rejected the chronological argument, saying the Legislative text makes clear that defendants are always entitled to appointed counsel in these cases. It would be "dangerous" and "impossible to draw a line that's principled and enforceable to set aside some class of cases in which the defendant doesn't really need counsel before the court examines the record of conviction," Bacon said.

Bacon's client, convicted murderer Vincent Lewis, sought to reduce his 25 years to life sentence shortly after SB 1437 took effect. His petition argued he could not be convicted of first-degree murder in the death of a fellow gang member because he was an accomplice, not the actual killer.

The petition was rejected by Los Angeles County Superior Court Judge Ricardo R. Ocampo, along with Lewis' request for counsel. The judge pointed to the 2nd District Court of Appeal's 2014 affirmation of Lewis' conviction to justify his finding that Lewis was ineligible for relief under the change in the law and that counsel would not have cast any reasonable doubt about his culpability, records show.

On a second appeal last year, the 2nd District again upheld the lower court.

Seeking an affirmation of that decision, Ivri argued 1170.95 was structured in a way that allows courts to avoid a flood of meritless petitions.

"If we appoint counsel and require briefing for all petitions without any screening, it leaves fewer judicial resources for potentially meritorious decisions," Ivri said.

Universally appointing counsel, he said, "would turn the process of 1170.95 into a pseudo-habeas kind of collateral action where any underlying claim can be raised."

Justice Joshua P. Groban said Ivri was making a "supposition about the policy judgments that the Legislature made that aren't necessarily part of the record." He also said the statute's language makes "pretty clear" that the court shall appoint counsel after a petition has been filed.

But Ivri said the Legislature intended to create a screening process for judges to address cases that are "easy to dispose of." He said if there is any doubt about a petitioner's eligibility for relief, then the first step of establishing a prima facie showing is satisfied and counsel can be appointed as step two.

"Isn't it the Legislature's prerogative to decide that counsel should be appointed even in situations in which a court of appeal might decide looking back...that counsel wouldn't have made a difference?" Justice Leondra R. Kruger asked.

Ivri said it would be, but "had the Legislature expressed its intent that counsel shall be universally appointed, then it could have done so."

Asked by Justice Goodwin H. Liu what remedy the high court could provide assuming Lewis's request for an attorney should have been granted, Bacon said the answer was to remand the case with instructions to do just that. Bacon also countered Ivri's argument that such a decision would strain judicial resources.

"In discussing economy, it is wise to keep in mind what is at stake," he said. "Convictions for murder. Decades of incarceration at great human cost as well as great financial cost. It's worth some time, it's worth some public money, to litigate that on an adversary basis to make sure we get it right. It's not absurd to attribute that conclusion to the Legislature."