Filed 9/15/20 P. v. Snyder CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ANTHONY SNYDER,

Defendant and Appellant.

 B299921

 (Los Angeles County

 Super. Ct. No. BA012694)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, George G. Lomeli, Judge. Reversed and 

remanded with directions.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Amanda V. Lopez and Idan Ivri, 

Deputy Attorneys General, for Plaintiff and Respondent.

____________________________________
2

A jury found Michael Anthony Snyder guilty of the murder 

of James Pickett during a residential burglary, which occurred 

after Snyder and another individual forcibly entered Pickett’s 

home on January 19, 1990. Snyder was sentenced to an 

indeterminate state prison term of 15 years to life for the murder, 

plus one year for a firearm enhancement. The sentence for the 

burglary conviction was stayed pursuant to Penal Code 

section 654.1 This court affirmed Snyder’s convictions on direct 

appeal. (People v. Snyder (Apr. 7, 1993, B056621) [nonpub. 

opn.].) 

On January 4, 2019 Snyder petitioned to vacate his murder 

conviction and for resentencing under section 1170.95. The 

superior court summarily denied the petition without first 

appointing counsel, ruling that, while Snyder may have met 

section 1170.95’s requirements for relief, that section is 

unconstitutional.

We reverse the postjudgment order and remand for the 

superior court to appoint counsel for Snyder and to consider his 

petition in accordance with the procedures described in our 

opinion in People v. Verdugo (2020) 44 Cal.App.5th 320, review 

granted March 18, 2020, S260493 (Verdugo).2 

1 Statutory references are to this code unless otherwise 

stated.

2 The Supreme Court in Verdugo, supra, S260493 ordered 

briefing deferred pending its disposition of People v. Lewis (2020) 

43 Cal.App.5th 1128, review granted March 18, 2020, S260598. 

The Court limited briefing and argument in People v. Lewis to the 

following issues: “(1) May superior courts consider the record of 

conviction in determining whether a defendant has made a prima 

facie showing of eligibility for relief under Penal Code 
3

FACTUAL AND PROCEDURAL BACKGROUND

1. Snyder’s Conviction for Murder

a. The shooting

As described in our 1993 opinion,

3 the evidence at trial 

established that, on the afternoon of January 19, 1990, Pickett 

arrived home and told his foster sister he had just had an 

argument with Snyder, who lived down the street and with whom 

Pickett had been friends when they were children. 

Approximately 30 minutes later someone knocked on the door of 

Pickett’s house. His foster sister asked who was there but got no 

response. Looking out the window she saw Snyder standing on 

the porch and another man standing on the sidewalk at the 

corner of the property. She did not open the door. 

Snyder walked to the house’s side door and asked through 

the security screen whether Pickett was home. Snyder appeared 

angry. While Snyder was at the side door, the other man kicked 

down the front door and knocked Pickett’s foster sister to the 

floor. The second man then let Snyder into the house through the 

side door.

Pickett and Snyder began fighting. While they struggled, 

Snyder’s companion fired a revolver one to three times at Pickett, 

hitting him in the chest and/or abdomen. At that point a car 

section 1170.95? (2) When does the right to appointed counsel 

arise under Penal Code section 1170.95, subdivision (c)?”

3 Our 1993 opinion affirming Snyder’s convictions is not in 

the record. It is clear from the superior court’s order it consulted 

our opinion, but counsel notes the opinion is not available 

electronically. We augment the record on our own motion to 

include our 1993 opinion. (Cal. Rules of Court, rule 8.340(c).)
4

drove up in front of the house, and the driver honked the horn 

multiple times. Snyder and the gunman ran out of the house and 

entered the car, which drove away at a high speed. Neither 

Snyder nor the gunman spoke during the incident. Pickett died.

b. The trial: instructions and verdict

Snyder was charged in an information with one count of 

murder (§ 187, subd. (a)) and one count of residential burglary 

(§ 459). The information specially alleged as to both counts that 

a principal was armed with a firearm during the commission of 

the offense. (§ 12022, subd. (a)(1).) 

At trial the prosecution relied on a conspiracy theory of 

liability and, in the alternative, an aider and abettor theory of 

liability. The exact language of the jury instruction given 

regarding conspiracy liability is not in the record, but in our 

1993 opinion we recounted, “once a defendant is found to be a 

member of a conspiracy, he is not only liable for the crimes 

actually contemplated, but is also liable for all the natural and 

probable or reasonably foreseeable consequences of the originally 

contemplated objective of the conspiracy. (CALJIC No. 6.11.)”4 

(People v. Snyder, supra, B056621, at p. 10.) The alleged 

alternative objects of the conspiracy in this case were “(1) assault 

with a deadly weapon; (2) assault with force likely to produce 

4 In 1990 CALJIC No. 6.11 stated, in part, “A member of a 

conspiracy is not only guilty of the particular crime that to [his] 

[her] knowledge [his] [her] confederates are contemplating 

committing, but is also liable for the natural and probable 

consequences of any act of a co-conspirator to further the object of 

the conspiracy, even though such an act was not intended as a 

part of the original plan and even though [he] [she] was not 

present at the time of the commission of such act.”
5

great bodily injury; (3) battery with serious bodily injury; or, 

(4) murder.” (Id. at p. 6.)

As to aider and abettor liability, using CALJIC No. 3.02,5

the court instructed the jury criminal liability of an aider and 

abettor extends to “‘the reasonably foreseeable consequences of 

any criminal act he knowingly and intentionally aided and 

abetted.’” (People v. Snyder, supra, B056621, at pp. 11-12.)

The jury found Snyder guilty of second degree murder and 

residential burglary and found the firearm allegations true. 

These convictions were affirmed on appeal. 

2. Senate Bill No. 1437 and Snyder’s Petition for 

Resentencing 

a. Senate Bill No. 1437 and the section 1170.95 petition 

procedure

Senate Bill No. 1437 (2017- 2018 Reg. Sess.) (Stats. 2018, 

ch. 1015) (Senate Bill 1437), effective January 1, 2019, amended 

the felony-murder rule and eliminated the natural and probable 

consequences doctrine as it relates to murder through 

amendments to sections 188 and 189. New section 188, 

subdivision (a)(3), provides, “Except as stated in subdivision (e) of 

Section 189, in order to be convicted of murder, a principal in a 

crime shall act with malice aforethought. Malice shall not be 

5 In 1990 CALJIC No. 3.02 stated, in part, “One who aids 

and abets is not only guilty of the particular crime that to [his] 

[her] knowledge [his] [her] confederates are contemplating, but 

[he] [she] is also liable for the natural and probable consequences 

of any criminal act that [he] [she] knowingly and intentionally 

aided and abetted.”
6

imputed to a person based solely on his or her participation in a 

crime.”

New section 189, subdivision (e), in turn, provides with 

respect to a participant in the perpetration or attempted 

perpetration of a felony listed in section 189, subdivision (a), in 

which a death occurs—that is, as to those crimes that provide the 

basis for the charge of first degree felony murder—that an 

individual is liable for murder “only if one of the following is 

proven: [¶] (1) The person was the actual killer. [¶] (2) The 

person was not the actual killer, but, with the intent to kill, 

aided, abetted, counseled, commanded, induced, solicited, 

requested, or assisted the actual killer in the commission of 

murder in the first degree. [¶] (3) The person was a major 

participant in the underlying felony and acted with reckless 

indifference to human life, as described in subdivision (d) of 

Section 190.2.” 

Senate Bill 1437 also permits, through new section 1170.95, 

an individual convicted of felony murder or murder under a 

natural and probable consequences theory to petition the 

sentencing court to vacate the conviction and be resentenced on 

any remaining counts if he or she could not have been convicted 

of murder because of Senate Bill 1437’s changes to the definition 

of the crime. The petition must include: “(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.” (§ 1170.95, subd. (b)(1); see Verdugo, 

supra, 44 Cal.App.5th at pp. 326-327.)
7

If any of this required information “is missing 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.’ (§ 1170.95, subd. (b)(2).)” 

(Verdugo, supra, 44 Cal.App.5th at p. 327.) If, however, “the 

petition contains all required information, section 1170.95, 

subdivision (c), prescribes a two-step process for the court to 

determine if an order to show cause should issue: ‘The court 

shall review the petition and determine if the petitioner has 

made a prima facie showing that the petitioner falls within the 

provisions of this section. If the petitioner has requested counsel, 

the court shall appoint counsel to represent the petitioner. The 

prosecutor shall file and serve a response . . . and the petitioner 

may file and serve a reply . . . . If the petitioner makes a 

prima facie showing that he or she is entitled to relief, the court 

shall issue an order to show cause.’” (Ibid.)

Once the order to show cause issues, the court must hold a 

hearing to determine whether to vacate the murder conviction 

and to recall the sentence and resentence the petitioner on any 

remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra, 

44 Cal.App.5th at p. 327.) At the hearing the prosecution has the 

burden of proving beyond a reasonable doubt that the petitioner 

is ineligible for resentencing. (§ 1170.95, subd. (d)(3).) The 

prosecutor and petitioner may rely on the record of conviction or 

offer new or additional evidence to meet their respective burdens. 

(See People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review 

granted Mar. 18, 2020, S260598.) 
8

b. Snyder’s section 1170.95 petition

In January 2019 Snyder petitioned for resentencing under 

newly enacted section 1170.95. In his petition on the Re:Store 

Justice form (see Verdugo, supra, 44 Cal.App.5th at p. 324 & 

fn. 2), Snyder checked boxes declaring an information had been 

filed against him allowing the prosecution to proceed under a 

theory of felony murder or murder under the natural and 

probable consequences doctrine; at trial he had been convicted of 

first or second degree murder pursuant to the felony-murder rule 

or the natural and probable consequences doctrine; and he could 

not now be convicted of first or second degree murder because of 

the amendments to sections 188 and 189. He also checked the 

box requesting appointment of counsel for the resentencing 

process. 

3. The Superior Court’s Ruling Denying the Petition

The superior court summarily denied Snyder’s petition. 

After briefly summarizing the statement of facts from our opinion 

on appeal, the court explained, “The petitioner was ultimately 

tried under a conspiracy theory as well as under an aiding and 

abetting theory of liability. Specifically, aiding and abetting 

and/or conspiracy to commit an assault upon the victim which 

ultimately resulting in his death. Although the petitioner was 

not tried under a felony murder rule, it appears . . . that a 

derivative of the natural and probable consequences theory was 

in part relied upon by the prosecution. Seemingly, malice was 

imputed upon the petitioner.” Based on this evidence the 

superior court concluded, “[i]t appears that the petitioner may be 

entitled to relief pursuant to Penal Code 1170/SB 1437 as he was 

neither the actual killer nor one who with the intent to kill aided 
9

in the killing nor one who was a major participant who acted 

with reckless indifference.” 

Nonetheless, the superior court denied the petition, ruling 

Senate Bill 1437 and section 1170.95 are unconstitutional 

because Senate Bill 1437 impermissibly amended two California 

initiatives, Propositions 7 (the Death Penalty Act, approved by 

the voters in November 1978) and 115 (the Crime Victims Justice 

Reform Act, approved by the voters in June 1990); violated the 

California Constitution (as amended by Proposition 9 in 2008, the 

Victims’ Bill of Rights Act of 2008, commonly known as Marsy’s 

Law) insofar as it purported to vacate final judgments in criminal 

cases; and violated the separation of powers doctrine by 

infringing on core judicial functions. 

DISCUSSION

1. Section 1170.95 Is Constitutional

Snyder contends, and the Attorney General agrees, the 

superior court erred in holding that section 1170.95, as enacted 

through Senate Bill 1437, was unconstitutional. In a 

comprehensive analysis of Propositions 7 and 115 and Senate 

Bill 1437, as well as the separation of powers doctrine and 

victims’ rights to finality of judgments as protected in Marsy’s 

Law, our colleagues in Division Two of the Fourth District in 

People v. Johns (2020) 50 Cal.App.5th 46, 63-69 rejected the 

reasoning employed by the superior court in this case and held 

Senate Bill 1437 is constitutional. 

All other courts of appeal that have considered any of these 

grounds for a constitutional attack on Senate Bill 1437 have 

likewise rejected them. (See, e.g., People v. Prado (2020) 

49 Cal.App.5th 489; People v. Smith (2020) 49 Cal.App.5th 85, 
10

review granted July 22, 20202, S262835; People v. Bucio (2020) 

48 Cal.App.5th 300; People v. Solis (2020) 46 Cal.App.5th 762; 

People v. Cruz (2020) 46 Cal.App.5th 740; People v. Lamoureux

(2019) 42 Cal.App.5th 241.) We find the reasoning in these cases 

compelling and adopt it as our own. 

2. Remand Is Required To Determine Whether Snyder Has 

Made a Prima Facie Showing He Is Entitled to Relief

As discussed, section 188, subdivision (a)(3), precludes a 

conviction for murder of anyone who did not act with “malice 

aforethought” except in cases of felony murder, as specified in 

section 189, subdivision (e), and specifically prohibits imputing 

malice based solely on participation in a crime. Section 189, 

subdivision (e)(3), however, provides an aider and abettor of one 

of the felonies listed in section 189, subdivision (a), who is not the 

actual killer, may be convicted under the felony-murder rule 

without proof of an intent to kill (that is, without proof of 

“malice”) if that person was “a major participant in the 

underlying felony and acted with reckless indifference to human 

life.” This single exception to the prohibition of imputing malice 

applies only to cases tried under the felony-murder rule, not the 

natural and probable consequences doctrine. 

Here, there is no dispute Snyder was not the shooter. The 

jury was instructed Snyder could be found guilty of Pickett’s 

murder if he was a member of a conspiracy and the murder was 

the natural and probable or reasonably foreseeable consequence 

of the originally contemplated objective of the conspiracy. (People 

v. Snyder, supra, B056621, at p. 10.) Alternatively, the jury was 

instructed Snyder could be found guilty of murder if he aided and 

abetted a criminal act for which murder was a reasonably 

foreseeable consequence. (Id. at pp. 11-12.) 
11

As we explained in Verdugo, after receiving a facially 

sufficient petition but before appointing counsel for the 

petitioner, the superior court may examine the readily available 

portions of the record of conviction, including any appellate 

opinion affirming the conviction, to determine whether the 

petitioner has made a prima facie showing that he or she could 

not be convicted of first or second degree murder following the 

changes made to sections 188 and 189 and thus falls within the 

provisions of section 1170.95. (Verdugo, supra, 44 Cal.App.5th at 

pp. 329-330, 332.) We cautioned, however, because at this stage 

the court is only evaluating whether there is a prima facie 

showing the petition falls within the provisions of the statute, “if 

the petitioner’s ineligibility for resentencing under 

section 1170.95 is not established as a matter of law by the record 

of conviction, the court must direct the prosecutor to file a 

response to the petition, permit the petitioner (through appointed 

counsel, if requested) to file a reply and then determine, with the 

benefit of the parties’ briefing and analysis, whether the 

petitioner has made a prima facie showing he or she is entitled to 

relief.” (Id. at p. 330.) 

Based on his petition and our opinion affirming the 

conviction, Snyder has made a prima facie showing he falls 

within the provisions of section 1170.95. Even if he was a major 

participant in an aggravated assault and acted with reckless 

indifference to human life, a conviction for murder under the 

natural and probable consequences doctrine is no longer viable. 

Accordingly, as the Attorney General concedes, Snyder is entitled 

to appointment of counsel and to a determination, after briefing 

by both sides, whether he has made a prima facie showing that 
12

he is entitled to relief, as provided in section 1170.95, 

subdivision (c).6

DISPOSITION

The postjudgment order denying Snyder’s petition for 

resentencing is reversed. The cause is remanded with directions 

to appoint counsel for Snyder and to conduct further proceedings 

pursuant to section 1170.95 with respect to Snyder’s conviction 

for second degree murder. 

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

6 Because we find the superior court erred in summarily 

denying Snyder’s petition, we need not address Snyder’s 

argument the superior court violated his state and federal 

constitutional rights.