Filed 7/19/21 P. v. Anderson 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.

YOLANDA RAE ANDERSON,

Defendant and Appellant.

 B306032

 (Los Angeles County

 Super. Ct. No. VA008469)

APPEAL from an order of the Superior Court of 

Los Angeles County, Debra Cole-Hall, Judge. Reversed and 

remanded. 

Gibson, Dunn & Crutcher, Courtney M. Johnson, Eric D. 

Vandevelde for Defendant and Appellant. 

Matthew Rodriguez, Acting Attorney General, Lance E. 

Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Senior Assistant Attorney General, Michael R. Johnsen, 
2

Supervising Deputy Attorney General, and Peggy Z. Huang, 

Deputy Attorney General for Plaintiff and Respondent. 

________________________

Yolanda Rae Anderson, convicted of two counts of first 

degree murder in 1993, appeals the superior court’s order 

denying her petition for resentencing under Penal Code 

section 1170.951 based on the court’s finding Anderson had not 

made a prima facie showing she was entitled to relief. Anderson

contends, and the Attorney General concedes, the superior court 

erred by prematurely engaging in factfinding not permitted 

before issuing an order to show cause and conducting an 

evidentiary hearing. We agree, reverse the order denying 

Anderson’s petition and remand with directions to issue an order 

to show cause and to conduct further proceedings in accordance 

with section 1170.95, subdivision (d).

FACTUAL AND PROCEDURAL BACKGROUND

1. Anderson’s Felony-murder Conviction

Anderson was charged in an information filed October 10, 

1991 with two counts of first degree murder (§ 187, subd. (a)) and 

two counts of first degree robbery (§§ 211, 212.5) with special 

allegations that a principal had been armed with a firearm 

during the commission of all four offenses (§ 12022, subd. (a)(1)). 

The information did not include accomplice-liability, felonymurder special-circumstance allegations (see §§ 190.2, 

subds. (a)(17), (d)).

Our opinion affirming Anderson’s judgment of conviction 

described the evidence presented at trial, which included 

1 Statutory references are to this code.
3

Anderson’s testimony. (People v. Anderson (Sept. 20, 1994, 

B076960) [nonpub. opn.].) 

Late at night on June 27, 1991 Anderson went to the 

Hammock family’s apartment in Downey with Samuel Simpson, 

a former boyfriend, and Samuel’s brother, La France Simpson. 

Anderson knew the Hammock family. As instructed by Samuel

Simpson, Anderson knocked on the door and asked the family’s 

11-year-old son to let her inside and to wake his mother, 

explaining she was experiencing an emergency. When the boy 

went to get his mother, the Simpsons entered the home. 

Anderson returned to her car. The Simpsons tied up the boy; 

demanded money and jewelry from his parents, Thomas and 

Lawana Hammock; ransacked the home taking valuables; and 

shot and killed Thomas and Lawana Hammock.

According to the preliminary hearing testimony of one of 

the Hammocks’ neighbors, admitted at trial after the court found 

the neighbor was unavailable, Anderson, followed by two men, 

got out of a car that parked in the lot next to the Hammocks’ 

apartment complex. Anderson walked into the apartment 

building; the two men jumped over the surrounding wall. A few 

minutes later Anderson returned to the car, sat in the driver’s 

seat and started the engine. She then opened the front passenger 

door, revved the engine “as if to give a signal,” and turned the 

lights on and off. Fifteen minutes later the two men jumped back 

over the wall and returned to the car. Anderson drove away with 

the two men inside.

Anderson testified the Simpsons drove her to an apartment 

Samuel Simpson said belonged to a former girlfriend to pick up 

his son. Anderson did not recognize it as the Hammocks’ 

residence and insisted she had no idea the Simpsons planned a 
4

robbery. At the apartment she knocked on the door, as directed, 

and said it was “Yolanda.” She could not see inside and did not 

recognize the boy’s voice when he responded. She asked to speak 

to the boy’s parents, as the Simpsons instructed, and then 

returned to the car where she waited until the two men came 

back. Samuel Simpson told her to drive when they left the area. 

She found out later the Simpsons had committed robbery and 

murder at the apartment. 

On cross-examination Anderson explained she visited the 

Hammocks frequently at another location and had been to the 

Downey apartment only once and did not recognize it. She 

testified the Simpsons accompanied her to the front door of the 

apartment (rather than jumping over a wall) and she did not see, 

and was not aware, that they had weapons. At the door Samuel 

Simpson grabbed her, ordered her to return to the car and 

threatened her daughter’s safety if she did not do as he said. She 

denied she had acted intentionally as the getaway driver for the 

robbery.2 

The jury convicted Anderson of two counts of first degree 

murder and two counts of first degree robbery and found true the 

special allegation a principal had been armed with a firearm. 

Anderson was sentenced to an aggregate indeterminate state 

prison term of 51 years to life. We affirmed Anderson’s 

2 With her reply brief in support of the petition for 

resentencing, Anderson attached transcripts of two parole 

consideration hearings dated August 10, 2017 and February 5, 

2019. During those hearings Anderson admitted she knew the 

Simpsons planned to rob the Hammocks after she allowed them 

to gain access to the home. She continued to deny knowing either 

man was armed.
5

convictions on appeal, rejecting her contentions it was error to 

admit the neighbor’s preliminary hearing testimony and the 

definition of reasonable doubt in the version of CALJIC No. 2.90 

used by the trial court violated her right to due process. (People 

v. Anderson, supra, B076960.) 

2. Anderson’s Petition for Resentencing

On April 15, 2019 Anderson, represented by counsel, filed a 

petition for resentencing under section 1170.95. With the

petition Anderson submitted her declaration under penalty of 

perjury stating she had been convicted of two counts of first 

degree murder under the felony-murder rule. Anderson further 

declared she could not now be convicted of first or second degree 

murder because of changes made to sections 188 and 189 by 

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

ch. 1015) (Senate Bill 1437) and specifically averred she was not 

the actual killer in her commitment offenses, did not aid or abet 

the actual killer with an intent to kill, and was not a major 

participant in the felony and had not acted with reckless 

indifference to human life during the course of the robbery.

The District Attorney filed an opposition to the petition on 

January 29, 2020, contending Anderson was ineligible for 

resentencing because she had been a major participant in the 

robberies and had acted with reckless indifference to human life

and, therefore, could still be convicted of first degree murder 

under the amended felony-murder rule. The District Attorney 

also argued Anderson could be convicted of second degree murder 

under a theory of implied malice. Anderson filed a reply brief on 

February 19, 2020. 

The superior court held a hearing on March 5, 2020 to 

determine whether Anderson had established a prima facie case 
6

for relief. Following argument of counsel, the court denied 

Anderson’s petition. After summarizing its view of the facts, the 

court stated: “In reviewing this case to see whether or not the 

defendant was a major participant in the underlying felony, the 

court read the Banks case and the factors.[3] And you don’t have 

to have all of those factors in order to be deemed a major 

participant. . . . [Anderson], in her statement, had indicated she 

didn’t know where they were going; she was just dropping these 

guys off somewhere. And her credibility—let me put it this way. 

Do I believe she was a major participant? You bet I do. When 

you create a situation, and you trick that young boy into letting 

you into—letting you in, and then you allow two other men to 

enter that home and kill that boy’s parents in front of [him], yes, 

she was a major participant. No, she wasn’t there at the time of 

the shooting, but she was involved in the planning and the 

execution of that robbery that led to the death of the two victims 

in this case. And the court finds the defendant was a major 

participant in the underlying felony murder and acted with 

reckless indifference to life. And the court finds there is no prima 

facie case.” 

Anderson filed a timely notice of appeal.4

3 In People v. Banks (2015) 61 Cal.4th 788 the Supreme 

Court identified factors that courts should consider in 

determining whether a defendant was a “major participant” 

within the meaning of the special circumstance statute for aiders 

and abettors of felony murder (§ 190.2, subds. (a)(17), (d)). 

4 Anderson was granted parole and released from custody in 

October 2020. The change in her status does not moot her 

appeal. (Cf. People v. Nuckles (2013) 56 Cal.4th 601, 609 [“a 

convicted felon released on parole is subject to substantial 

restraints on his liberty and is deemed to remain in the 
7

DISCUSSION

1. Senate Bill 1437 and the Section 1170.95 Petition 

Procedure 

Senate Bill 1437 eliminated the natural and probable 

consequences doctrine as a basis for finding a defendant guilty of 

murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843 

(Gentile)) and significantly narrowed the felony-murder exception 

to the malice requirement for murder. (See, e.g., People v. 

Rodriguez (2020) 58 Cal.App.5th 227, 236, review granted 

Mar. 10, 2021, S266652; People v. Bascomb (2020) 55 Cal.App.5th 

1077, 1080.) It also authorized, through new section 1170.95, an 

individual convicted of felony murder or murder based on the

natural and probable consequences doctrine 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. (See Gentile, at p. 859.) 

If the section 1170.95 petition contains all the required 

information, including a declaration by the petitioner that he or 

she was convicted of murder and is eligible for relief (§ 1170.95, 

subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a 

process for the court to determine whether to issue an order to 

show cause and hold an evidentiary hearing to consider if the 

murder conviction should be vacated and the petitioner 

resentenced on any remaining counts: “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 

constructive custody of the Department of Corrections and 

Rehabilitation”].)
8

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.” 

In determining whether the petitioner has carried the 

burden of making the requisite prima facie showing he or she 

falls within the provisions of section 1170.95 and is entitled to 

relief, the superior court properly examines the record of 

conviction and “can dismiss any petition filed by an individual 

who was not actually convicted of first or second degree murder.” 

(People v. Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo), 

review granted Mar. 18, 2020, S260493.) “The record of 

conviction might also include other information that establishes 

the petitioner is ineligible for relief as a matter of law because he 

or she was convicted on a ground that remains valid 

notwithstanding Senate Bill 1437’s amendments to sections 188 

and 189 (see § 1170.95, subd. (a)(3))—for example, a petitioner 

who admitted being the actual killer as part of a guilty plea or 

who was found to have personally and intentionally discharged a 

firearm causing great bodily injury or death in a single victim 

homicide within the meaning of section 12022.53, 

subdivision (d).” (Ibid.) As this portion of our decision in 

Verdugo emphasized, for relief to be denied without the court 

first issuing an order to show cause and conducting an 

evidentiary hearing, the record of conviction must establish the 

petitioner’s ineligibility as a matter of law. (Ibid.; see People v. 

Smith (2020) 49 Cal.App.5th 85, 92, review granted July 22, 

2020, S262835 [“[i]f it is clear from the record of conviction that
9

the petitioner cannot establish eligibility as a matter of law, the 

trial court may deny the petition”]; People v. Cornelius (2020) 

44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410 

[record must show defendant is “indisputably ineligible for 

relief”].)

Once the section 1170.95, subdivision (c), prima facie 

showings have been made, the court must issue an order to show 

cause and hold an evidentiary hearing to determine whether to 

vacate the murder conviction and resentence the petitioner on 

any remaining counts. (§ 1170.95, subd. (d)(1).) 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); Rodriguez, supra, 58 Cal.App.5th at 

p. 230, review granted; People v. Lopez (2020) 56 Cal.App.5th 

936, 949, review granted Feb. 10, 2021, S265974; but see People 

v. Duke (2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 

2021, S265309.) 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. Tarkington (2020) 

49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020, 

S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981; 

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

Mar. 18, 2020, S260598.)

2. The Superior Court Erred in Denying Anderson’s 

Petition Without an Evidentiary Hearing

Anderson’s petition complied with the statutory 

requirements of section 1170.95; and her declaration, if accepted 

as true, made a prima facie showing of her eligibility for relief. 

The superior court’s contrary ruling was based on its finding that 
10

Anderson could still be convicted of murder under the felonymurder rule.

At the time of Anderson’s trial, section 189 permitted a 

conviction for felony murder by imputing malice to a participant 

in an inherently dangerous felony, including robbery, that 

resulted in homicide, even if the death was accidental. 

(See People v. Chun (2009) 45 Cal.4th 1172, 1184.) As amended 

by Senate Bill 1437, section 188, subdivision (a)(3), now prohibits 

imputing malice based solely on an individual’s participation in a 

crime and requires proof of malice to convict a principal of 

murder except under the revised felony-murder rule as set forth 

in new section 189, subdivision (e). Section 189, subdivision (e),

in turn, limits the felony-murder exception to the malice 

requirement to situations in which the defendant was the actual 

killer, aided or abetted the underlying serious felony with the 

intent to kill, or was a major participant in the felony and acted 

with reckless indifference to human life.

It is undisputed that Anderson was not the actual killer of

Thomas and Lawana Hammock. As discussed, although the 

District Attorney argued the evidence would support a finding 

that Anderson had acted with implied malice and could be found 

guilty of second degree murder, there was never a suggestion 

Anderson had acted during the robbery with express malice—

that is, an intent to kill. Rather, the superior court’s ruling was 

predicated on the third felony-murder category, finding that 

Anderson had been a major participant in the robbery of the 

Hammock family and had acted with reckless indifference to 

human life. Those findings are necessarily fact-intensive. 

(See In re Scoggins (2020) 9 Cal.5th 667, 683 [determining 

whether a defendant was a major participant in an underlying 
11

felony who acted with reckless indifference to life within the 

meaning of the special circumstance statute “requires a factintensive, individualized inquiry”]; In re Parrish (2020) 

58 Cal.App.5th 539, 542 [Supreme Court has prescribed “a factintensive and individualized inquiry” to determine whether the 

evidence demonstrates reckless indifference and major 

participation].)

The Attorney General acknowledges, although the evidence 

that Anderson could still be convicted of murder under the felonymurder rule may be strong, the record of conviction does not 

establish as a matter of law that she is ineligible for resentencing

as a major participant in the robberies who acted with reckless 

indifference to human life. The superior court’s ruling that 

Anderson could still be convicted of first degree murder required 

the court to weigh the evidence, including Anderson’s credibility,

and engage in factfinding, activities not permitted under 

section 1170.95 prior to the issuance of an order to show cause. 

As the court explained in People v. Drayton, supra, 

47 Cal.App.5th at page 980, “when assessing the prima facie

showing, the trial court should assume all facts stated in the

section 1170.95 petition are true. [Citation.] The trial court

should not evaluate the credibility of the petition’s assertions, but

it need not credit factual assertions that are untrue as a matter

of law . . . . However, this authority to make determinations 

without conducting an evidentiary hearing pursuant to 

section 1170.95, subd[ivision] (d) is limited to readily 

ascertainable facts from the record (such as the crime of 

conviction), rather than factfinding involving the weighing of 

evidence or the exercise of discretion (such as determining 

whether the petitioner showed reckless indifference to human life 
12

in the commission of the crime). [¶] If, accepting the facts 

asserted in the petition as true, the petitioner would be entitled 

to relief because he or she has met the requirements of 

section 1170.95[, subdivision] (a), then the trial court should 

issue an order to show cause.” (Accord, People v. Duchine (2021) 

60 Cal.App.5th 798, 815 [“the time for weighing and balancing 

and making findings on the ultimate issues arises at the 

evidentiary hearing stage rather than the prima facie stage, at 

least where the record is not dispositive on the factual issues”].) 

Accordingly, as both parties agree, the matter must be 

remanded for the superior court to conduct an evidentiary 

hearing in accordance with section 1170.95, subdivision (d).

DISPOSITION

The order denying Anderson’s section 1170.95 petition is 

reversed. On remand the superior court is to issue an order to 

show cause and to conduct further proceedings in accordance 

with section 1170.95, subdivision (d).

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.