Filed 7/20/23 P. v. Radloff CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMIE RADLOFF,

Defendant and Appellant.

 D080082

 (Super. Ct. No. SCN370158)

APPEAL from an order of the Superior Court of San Diego County, 

Carlos O. Armour, Judge. Affirmed.

Janice R. Mazur, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, 

Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for 

Plaintiff and Respondent.

Following her 2019 first degree murder conviction and the subsequent 

denial of her direct appeal in January 2021, in May 2021, Jamie Radloff filed 
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a petition for resentencing under former Penal Code section 1170.95 (now 

section 1172.6).1 The prosecutor filed a response, and the court eventually 

appointed Radloff counsel shortly before a hearing on the matter, at which 

Radloff’s attorney appeared. However, the court did not give Radloff an 

opportunity to file a brief responding to the prosecutor. The court denied the 

resentencing petition, concluding Radloff was not eligible for relief because 

she was convicted after section 1172.6 became effective.

Radloff appeals, contending the court erred by waiting to appoint 

counsel and by denying her petition without offering the opportunity to 

respond to the prosecution. The Attorney General concedes the court erred 

by making its decision without the benefit of briefing but contends the error 

was harmless. We agree with the Attorney General, and we affirm. 

BACKGROUND AND PROCEDURAL FACTS

The details of the crime are not essential to our analysis. A summary 

of them can be found in our opinion on Radloff’s direct appeal. (People v. 

Radloff (Jan. 27, 2021, D075891 [unpub. opn.].) 

At trial, the court provided a felony murder jury instruction that 

included the factors discussed in People v. Banks (2015) 61 Cal.4th 788 

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). The instructions 

also explained that “[a] person acts with reckless indifference to human life 

when he or she knowingly engages in criminal activity that he or she knows 

involves a grave risk of death. This requires the person to actually know that 

under the circumstances the crime in which he or she is participating carries 

a higher probability of death than normally attends to the commission of such 

1 All statutory references are to the Penal Code. Effective June 30, 2022, 

section 1170.95 was recodified without substantive change in section 1172.6, 

pursuant to Assembly Bill No. 200 (2021-2022 Reg Session). (See Stats. 2022, 

ch. 58, § 10.) We refer to the current codification throughout this opinion. 
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crime. [¶] Mere knowledge that an alleged co-participant in the crime is 

armed and the anticipation that lethal force might be used to accomplish the 

robbery is not sufficient by itself to prove beyond a reasonable doubt that the 

defendant knew the alleged conduct involved a grave risk of death.”

The jury convicted Radloff of first degree murder (§ 187, subd. (a)(1)) 

and robbery (§ 211) in April 2019. It also made a finding that she was 

vicariously armed with a firearm. (§ 12022, subd. (a)(1).) 

Radloff appealed the conviction, and we affirmed the judgment in 

January 2021. (People v. Radloff, supra, D075891.) 

In May 2021, Radloff filed a petition for resentencing under 

section 1172.6. She served the district attorney with the petition, and the 

People filed an initial response to the petition in July. By September, Radloff

had not received confirmation that her petition was received. So, in 

November, Radloff filed a petition to vacate her petition and request 

appointment of counsel. 

On January 28, 2022, the court assigned an attorney and set a hearing 

for February 10, 2022 to address Radloff’s petition. Radloff’s attorney 

appeared at the hearing. 

The court explained it had prepared an order several months earlier 

denying the petition, but it did not sign the order. The court said, “[A]s far as 

I’m concerned, this petition is not valid because she was not a person that 

was tried under the old law. She was tried under the current statute, and 

the new elements for felony murder were applied to her case and instructed 

to the jury. And they did find her guilty of murder.” It said that for those 

reasons, it would file the order denying the request, and it offered to hear 

from the attorneys. 
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Radloff’s attorney told the court that after Radloff’s trial there was a 

change in the law because the Supreme Court decision in In re Scoggins

(2020) 9 Cal.5th 667 “interpret[ed] Clark and the elements needed to prove 

reckless indifference to human life.” Radloff’s counsel also asked the court if 

the order was being dated that day, and the court confirmed it was, even 

though it “probably” completed the order within two weeks of receiving it. 

The court denied the petition. Radloff filed a timely notice of appeal. 

DISCUSSION

A. Legal Principles

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

amended Penal Code section 188, which defines malice, and section 189, 

which defines degrees of murder. (Stats. 2018, ch. 1015, §§ 2 & 3.)

Amended section 189 states: “A participant in the perpetration or 

attempted perpetration of a felony listed in subdivision (a) in which a 

death occurs 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. [¶] [or] (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.” 

(§ 189, subd. (e).)

Senate Bill 1437 also established resentencing relief for eligible 

defendants. (§ 1172.6, subd. (a); People v. Strong (2022) 13 Cal.5th 698, 

707-708 (Strong).) Under section 1172.6, subdivision (a), “[a] person 

convicted of felony murder or murder under a natural and probable 

consequences theory may file a petition” with the sentencing court to have 
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his or her murder conviction vacated and to be resentenced on any 

remaining counts “when all of the following conditions apply: [¶] (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. [¶] (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” under

Senate Bill 1437. 

After receiving a petition containing the required information, “the 

court must evaluate the petition ‘to determine whether the petitioner has 

made a prima facie case for relief.’ ” (Strong, supra, 13 Cal.5th at p. 708, 

citing § 1172.6, subd. (c).) “[P]etitioners who file a complying petition 

requesting counsel are to receive counsel upon the filing of a compliant 

petition.” (People v. Lewis (2021) 11 Cal.5th 952, 963 (Lewis).) The 

prosecutor then files and serves a response within 60 days of service of the 

petition, and the petitioner may respond within 30 days of the prosecutor 

serving the response. (Lewis, at p. 964; § 1172.6, subd. (c).) “[T]he court 

reviews the petition to determine ‘if the petitioner has made a prima facie 

showing that petitioner falls within the provisions of this section.’ ” (Lewis, 

at p. 962, quoting former § 1170.95, subd. (c).) The Supreme Court described 

the process: “[A] complying petition is filed; the court appoints counsel, if 

requested; the issue is briefed; and then the court makes one . . . prima facie

determination.” (Lewis, at p. 966.) If the defendant makes a prima facie 
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showing of entitlement to relief, the court must issue an order to show cause 

and hold an evidentiary hearing. (§ 1172.6, subds. (c), (d)(3).)

B. Analysis

Radloff and the Attorney General agree that the law requires a court to 

consider whether a petitioner makes a prima facie showing of eligibility for 

relief only after appointment of counsel and briefing occur. (§ 1172.6, 

subds. (b), (c); Lewis, supra, 11 Cal.5th at p. 957.) They agree that did not 

occur here because the court did not consider briefing before denying the 

petition.2 However, they dispute whether this error was prejudicial. 

(People v. Watson (1956) 46 Cal.2d 818.) Thus, we consider whether it is 

reasonably probable Radloff would have obtained a more favorable outcome if 

the court had received briefing from the parties. (Lewis, at pp. 973-974.)

Radloff’s trial occurred after the amendments to the felony murder law 

were effective, and the jury instructions reflected the requirements of the 

new law. For instance, the court instructed the jury that to convict Radloff of 

murder as an aider and abettor, the jury must find beyond a reasonable 

doubt that she either acted with the intent to kill or that she was a major 

participant who acted with reckless indifference to human life. In connection 

with whether Radloff was a major participant in the underlying robbery, the 

instructions directed the jury to consider her role in the robbery, her role in 

supplying or using lethal weapons, her awareness as to the dangers posed by 

the nature of the crime, any weapons used, Radloff’s past experience with the 

perpetrator, Radloff’s presence at the killing, whether Radloff was in a 

position to facilitate or prevent the murder, Radloff’s own actions or inaction

2 Although the court did not appoint Radloff counsel when she filed the 

petition, as it should have, the court did appoint counsel before the hearing, 

in which the attorney represented Radloff.
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and whether either played a particular role in the victim’s death, and her 

actions after lethal force was used. (See Banks, supra, 61 Cal.4th at p. 803.)

With regard to whether Radloff acted with a reckless indifference to human 

life, the instructions directed the jury to consider if she knowingly engaged in 

criminal activity that she knew involved a grave risk of death and whether 

Radloff “actually kn[e]w that under the circumstances[,] the crime in 

which . . . she . . . participat[ed] carrie[d] a higher probability of death than 

normally attends the commission of such a crime.” (See Clark, supra, 63 

Cal.4th at pp. 618-623.)

Radloff argues that Scoggins changed the law by clarifying that

reckless indifference has both objective and subjective elements. She 

contends that because the instructions used at her trial did not explicitly 

reference “objective” and “subjective” intent or tell the jury how to assess 

those requirements, it is “unclear whether the jury engaged in a complete 

and proper analysis of the requirements necessary to find her guilty.” In 

other words, Radloff contends that she is not sure on which of those factors 

the jury based its decision. But this does not tell us how the court’s failure to 

review briefing prejudiced her. Radloff’s attorney told the court about the 

Scoggins case, so the court heard that information before concluding Radloff 

was ineligible for relief. 

Additionally, Radloff’s argument essentially challenges the correctness 

of the jury instructions because she contends the jury did not have the 

necessary information to properly assess recklessness. That is a claim of trial 

error (see, e.g., People v. Hendrix (2022) 13 Cal.5th 933, 941 [discussing 

instructional error as error at trial]), and section 1172.6 “does not permit a 

petitioner to establish eligibility on the basis of alleged trial error.” (People v. 

DeHuff (2021) 63 Cal.App.5th 428, 438.) 
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To meet her burden, Radloff must be able to make a prima facie 

showing that all the components of section 1172.6, subdivision (a) apply.

Because she was convicted after section 1172.6 became effective in 2019, she 

cannot show that she could not be convicted of murder “because of changes to 

Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(3)). 

Thus, she does not show it is reasonably probable she would have obtained a 

more favorable outcome if the court had received briefing from the parties.

DISPOSITION

The order is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.