1

Filed 11/4/21 P. v. Oliver CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

JACK T. OLIVER,

Defendant and Appellant.

 A159606

 (San Francisco County

 Super. Ct. No. SCN113500)

Jack T. Oliver (appellant) appeals from the trial court’s denial of his 

petition for resentencing pursuant to Penal Code section 1170.951 on the 

ground that he failed to demonstrate a prima facie case. We reverse and 

remand.

LEGAL BACKGROUND

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘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 

1 All undesignated section references are to the Penal Code.
2

kill, or was not a major participant in the underlying felony who acted with 

reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).) In 

addition to substantively amending sections 188 and 189 of the Penal Code, 

Senate Bill 1437 added section 1170.95, which provides a procedure for 

convicted murderers who could not be convicted under the law as amended to 

retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 959

(Lewis).)

“Pursuant to section 1170.95, an offender must file a petition in the 

sentencing court averring that: ‘(1) A complaint, information, or indictment 

was filed against the petitioner that allowed the prosecution to proceed under 

a theory of felony murder or murder under the natural and probable 

consequences doctrine[;] [¶] (2) The petitioner was convicted of first degree or 

second degree murder following a trial or accepted a plea offer in lieu of a 

trial at which the petitioner could be convicted for first degree or second 

degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or 

second degree murder because of changes to Section 188 or 189 made 

effective January 1, 2019.’ (§ 1170.95, subds. (a)(1)–(3); see also § 1170.95 

subd. (b)(1)(A).) . . . [¶] Where the petition complies with subdivision (b)’s 

three requirements, then the court proceeds to subdivision (c) to assess 

whether the petitioner has made ‘a prima facie showing’ for relief. 

(§ 1170.95, subd. (c).)” (Lewis, supra, 11 Cal.5th at pp. 959–960.)

“If the trial court determines that a prima facie showing for relief has 

been made, the trial court issues an order to show cause, and then 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 in the 

same manner as if the petitioner had not . . . previously been sentenced, 

provided that the new sentence, if any, is not greater than the initial 
3

sentence.’ (§ 1170.95, subd. (d)(1).) ‘The prosecutor and the petitioner may 

rely on the record of conviction or offer new or additional evidence to meet 

their respective burdens.’ (§ 1170.95, subd. (d)(3).) At the hearing stage, ‘the 

burden of proof shall be on the prosecution to prove, beyond a reasonable 

doubt, that the petitioner is ineligible for resentencing.’ (§ 1170.95, 

subd. (d)(3).)” (Lewis, supra, 11 Cal.5th at p. 960.)

FACTUAL AND PROCEDURAL BACKGROUND

Record of Conviction

In 1985, a jury found appellant guilty of first degree murder (§ 187), 

residential burglary (§ 459), and robbery (§ 211). 

The facts underlying appellant’s conviction, as set forth in the Court of 

Appeal opinion affirming the judgment, are as follows: “On Monday, June 14, 

1982, when his employer became concerned at his absence from work and 

alerted the management of his apartment complex, the body of [the victim] 

was discovered by two maintenance workers. When they arrived, the door to 

the apartment was broken and standing ajar; [the victim]’s bound body was 

on the bedroom floor. Although the body showed signs of a struggle, [the 

victim] died from asphyxiation caused when a pair of his underpants with 

which he had been gagged forced his tongue back into his throat, suffocating 

him. [The victim] had apparently died sometime between 5 p.m., Sunday, 

June 13, 1982, and the afternoon of the following day when his body was 

discovered.

“[The victim]’s younger brother, who had visited [the victim] in April or 

May, came to San Francisco and provided the police with a list of items 

comp[iled] from memory which he believed were missing from the apartment.

That list included a small television set, two pieces of stereo equipment, a 
4

35-millimeter camera, a hand-held calculator and a black attaché case. 

Various fingerprints were recovered from the crime scene.

“The murder remained an unsolved and open case. When San 

Francisco installed a fingerprint computer in March 1984, fingerprints from 

[the victim’s] case were among those from various unsolved homicides which 

were run through the computer. The computer found a close correspondence 

between the prints of defendant and two prints found in [the victim]’s 

apartment.

“In June 1982, defendant had been living with Ms. Toni Oldyn. On 

June 17, Oldyn, defendant, Denny Mickle and a fourth man were arrested in 

connection with their possession of two television sets which had been stolen 

on June 11, 1982, from a house down the street from their apartment. In 

1984, once the officers investigating [the victim’s] murder learned that 

defendant’s prints had been identified, they pulled his arrest record. Finding 

the record of defendant’s 1982 arrest, they then checked the fingerprints of 

Oldyn and Mickle against the other prints found in [the victim]’s apartment. 

They also checked pawnshop records for June 1982. While the fingerprint 

check was unproductive, the pawnshop records showed that Oldyn had 

pawned two pieces of stereo equipment on June 23, 1982. These pieces of 

equipment were traced to their present owner and introduced as evidence at 

trial.” (People v. Oliver (Nov. 5, 1986, A030861) [nonpub. opn.].)

The preliminary hearing transcript includes testimony from Oldyn, 

under a grant of immunity. Oldyn testified that, a few days before her arrest 

for possession of stolen property, “Dennie” told appellant he had a key to a 

friend’s house who was leaving town and said, “ ‘Come down, go with me,’ ” 

and they then left together. They returned with a third man and a large
5

number of items, some of which matched the items missing from the victim’s 

apartment. 

The preliminary hearing transcript also includes testimony from a 

police officer who testified that out of seven usable prints found at the crime 

scene, two were the victim’s, two were appellant’s, and the remaining three 

were unidentified. 

The Court of Appeal opinion makes clear that appellant was convicted 

of felony murder: the court rejected a claim that his sentence was excessive 

because there was no evidence his participation was “less culpable than in 

the ordinary felony-murder situation”; and the court rejected appellant’s 

claim that the felony murder rule was unconstitutional. (People v. Oliver, 

supra, A030861.)

Resentencing Petition

In 2019, appellant filed a petition for resentencing pursuant to 

section 1170.95. In his petition, he averred that he was not the actual killer, 

he did not aid or abet the killer with the intent to kill, and he was not a major 

participant in the felony or did not act with reckless indifference to human 

life during the felony. The trial court appointed counsel. 

The trial court found appellant failed to establish a prima facie case

because “the evidence shows that [appellant] was the actual killer in the case

. . . . [¶] Any kind of other issues regarding other fingerprints that were found 

in the apartment, that was all vetted in front of the jury and upheld by the 

court of appeal. I don’t find there’s any second person involved. I do find 

[appellant] was the actual killer properly convicted under the felony murder 

theory and could still be convicted under a felony murder theory under

current case law.”
6

DISCUSSION

“While the trial court may look at the record of conviction after the 

appointment of counsel to determine whether a petitioner has made a prima 

facie case for section 1170.95 relief, the prima facie inquiry under 

subdivision (c) is limited. Like the analogous prima facie inquiry in habeas 

corpus proceedings, ‘ “the court takes petitioner’s factual allegations as true 

and makes a preliminary assessment regarding whether the petitioner would 

be entitled to relief if his or her factual allegations were proved. If so, the 

court must issue an order to show cause.” ’ [Citation.] ‘[A] court should not 

reject the petitioner’s factual allegations on credibility grounds without first 

conducting an evidentiary hearing.’ [Citation.] ‘However, if the record, 

including the court’s own documents, “contain[s] facts refuting the allegations 

made in the petition,” then “the court is justified in making a credibility 

determination adverse to the petitioner.” ’ [Citation.] [¶] . . . In reviewing any 

part of the record of conviction at this preliminary juncture, a trial court 

should not engage in ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at pp. 971–972, quoting 

People v. Drayton (2020) 47 Cal.App.5th 965, 978–979 (Drayton).) “As the 

People emphasize, the ‘prima facie bar was intentionally and correctly set 

very low.’ ” (Lewis, at p. 972.)

Drayton, supra, 47 Cal.App.5th 965, quoted heavily by the Supreme 

Court on this issue in Lewis, as noted above, is instructive.2 In Drayton, the 

petitioner pled guilty to murder and admitted he entered the victims’ home 

with the intent to commit theft. (Drayton, 47 Cal.App.5th at p. 969.) The 

preliminary hearing testimony revealed that four men, including the 

2 Drayton was abrogated on another ground in Lewis. (Lewis, supra, 11 

Cal.5th at p. 963.)
7

petitioner, entered the victims’ home. (Id. at p. 968 & fn. 2.) The petitioner 

had a gun and restrained and struck one of the victims; the other men 

sexually assaulted another victim and killed a third. (Id. at pp. 968–969.) In 

his petition for resentencing, the petitioner declared that he “ ‘was not a 

major participant in the felony or [he] did not act with reckless indifference to 

human life during the course of the crime or felony.’ ” (Id. at p. 970.) The 

trial court found the petitioner failed to make a prima facie showing of 

entitlement to resentencing, reasoning: “ ‘This court finds that petitioner was 

a major participant in the underlying felony, both the burglary and the 

robbery. Additionally, the court further finds that he acted with reckless 

indifference to human life, which I think is blatantly apparent by his conduct, 

being armed and his participation in this event, as well as the conduct of his 

co-conspirators, the other individuals.’ ” (Id. at p. 972.)

The Court of Appeal reversed: “At this stage of the petition review 

process, governed by section 1170.95(c), the trial court should not have 

engaged in this factfinding without first issuing an order to show cause and 

allowing the parties to present evidence at a hearing . . . . In making an 

assessment of the petitioner’s prima facie showing, the trial court should not 

have evaluated and weighed the evidence but instead should have accepted 

petitioner’s asserted facts as true.” (Drayton, supra, 47 Cal.App.5th at 

p. 982.) In other words, “the trial court should accept the assertions in the 

petition as true unless facts in the record conclusively refute them as a 

matter of law.” (Id. at p. 968.)

Appellant submitted a declaration averring that he was not the actual 

killer. The record of conviction demonstrated that he was convicted of felony 

murder, the victim died from a gag placed in his mouth during the robbery, 

and appellant participated in the robbery which appeared to involve more 
8

than one person. The trial court weighed the evidence to discredit appellant’s 

averment that he was not the actual killer and to find, based on the evidence, 

that appellant was the actual killer. Under Lewis and Drayton, this was 

inappropriate at the prima facie stage of the resentencing petition.3

DISPOSITION

The trial court’s order denying the petition is reversed and remanded 

with directions to issue an order to show cause under section 1170.95, 

subdivision (c) and hold a hearing pursuant to section 1170.95, 

subdivision (d) to determine whether to vacate appellant’s murder conviction 

and recall his sentence and resentence him.

SIMONS, Acting P. J.

We concur. 

NEEDHAM, J.

BURNS, J. 

(A159606)

3 We note that both Lewis and Drayton were decided after the trial 

court’s ruling.