Filed 3/22/21 P. v. Roundtree CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JACK EDWARD ROUNDTREE,

Defendant and Appellant.

 A159477

 (San Mateo County

 Super. Ct. No. SC008779A)

Defendant Jack Edward Roundtree filed a petition for resentencing of 

his felony-murder conviction pursuant to Penal Code1 section 1170.95. The 

trial court concluded he failed to make a prima facie showing for relief, 

declined to issue an order to show cause, and denied his petition. On appeal, 

defendant contends the court erred in holding him ineligible for relief and 

failing to issue an order to show cause. We agree and reverse.

I. BACKGROUND

As relevant to this appeal, a jury convicted defendant of first degree 

murder (former § 187) and found true a felony-murder special circumstance 

(§ 190.2, former subd. (a)(17)(i)). Defendant was sentenced to life without the 

possibility of parole as to his murder conviction. Defendant appealed from 

1 All statutory references are to the Penal Code.
2

his conviction, and it was affirmed by this court. (People v. Roundtree 

(Nov. 19, 1982, A013425) [nonpub. opn.].)

In 2019, defendant filed a petition for resentencing under 

section 1170.95. The petition stated defendant was prosecuted and convicted 

of “1st or 2nd degree murder pursuant to the felony murder rule or the 

natural and probable consequences doctrine.” It further asserted defendant 

could not now be convicted of first degree murder because (1) he was not the 

actual killer, (2) he did not have intent to assist the actual killer, (3) he was 

not a major participant in the felony or act with reckless indifference to 

human life during the course of the felony, and (4) the victim was not a peace 

officer. 

The prosecutor opposed defendant’s petition, arguing defendant failed 

to state a prima facie case for relief because the record indicated he was 

ineligible as a matter of law.

2 The prosecutor asserted defendant “could still 

be convicted” of being the actual killer or an aider and abettor acting with 

intent to kill. She also asserted defendant was “a ‘major participant’ of the 

underlying robbery while acting with a ‘reckless indifference to human life.’ ” 

In response, defendant argued he had met the prima facie showing for 

relief. He noted the prosecution acknowledged defendant was convicted on a 

felony-murder theory, the evidence at trial established a codefendant to be 

the shooter, and none of the jury instructions required a finding that 

defendant was a major participant in the underlying offense or acted with 

reckless indifference to human life. 

2 The prosecutor also filed a separate opposition claiming

section 1170.95 was unconstitutional. The trial court rejected that 

opposition, and it is not part of this appeal.
3

At the hearing, the prosecution acknowledged the jury did not consider 

whether defendant was a major participant or acted with reckless 

indifference to human life. However, the parties disagreed as to whether the 

trial court was required to consider those issues before issuing an order to 

show cause. The court concluded it was entitled to weigh some of the 

evidence to determine whether defendant could have been convicted as a 

major participant who acted with reckless disregard for human life. And, in 

considering the facts of the underlying offense, it concluded defendant could 

have been convicted and denied the petition. Defendant timely appealed. 

II. DISCUSSION

A. General Legal Standards

“Senate Bill No. 1437 [(2017–2018 Reg. Sess.)], which took effect on 

January 1, 2019, was passed ‘ “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 kill, or was not a major participant in the 

underlying felony who acted with reckless indifference to human life.” ’

[Citation.] ‘Under the felony-murder rule as it existed prior to Senate Bill 

[No.] 1437, a defendant who intended to commit a specified felony could be 

convicted of murder for a killing during the felony, or attempted felony, 

without further examination of his or her mental state.’ ” (People v. Cooper

(2020) 54 Cal.App.5th 106, 113, review granted Nov. 10, 2020, S264684

(Cooper).)

As relevant to this appeal, Senate Bill No. 1437 (2017–2018 Reg. Sess.) 

(Senate Bill No. 1437) “amended section 189 to provide that a defendant who 

was not the actual killer and did not have an intent to kill is not liable for 

felony murder unless he or she ‘was a major participant in the underlying 
4

felony and acted with reckless indifference to human life, as described in 

subdivision (d) of Section 190.2.’ ” (Cooper, supra, 54 Cal.App.5th at p. 113, 

rev. granted.)

“Senate Bill No. 1437 also enacted section 1170.95, which establishes 

the procedure by which a defendant ‘convicted of felony murder or murder 

under a natural and probable consequences theory’ may petition to have the 

‘murder conviction vacated and to be resentenced on any remaining counts.’ 

(§ 1170.95, subd. (a).) Briefly, there are four main steps in the process. First, 

the defendant files a petition, which the trial court may deny without 

prejudice if it does not contain certain required information. (§ 1170.95, 

subd. (b).) Second, the court determines whether the defendant has made a 

prima facie showing of entitlement to relief. If so, it issues an order to show 

cause. (§ 1170.95[, subd.] (c).) Third, the court holds an evidentiary hearing 

to determine whether the murder conviction should be vacated. (§ 1170.95, 

subd. (d)(1), (3).) And finally, if the defendant is entitled to relief, the court 

recalls the sentence, vacates the murder conviction and any accompanying 

enhancements, and resentences the defendant. (§ 1170.95, subd. (d).)” 

(Cooper, supra, 54 Cal.App.5th at pp. 113–114, rev. granted.) This case 

addresses the second step—whether the court properly concluded defendant 

did not make the required prima facie showing. 

B. Analysis

Defendant asserts he adequately made a prima facie showing of 

eligibility under section 1170.95. Specifically, defendant emphasizes he was 

not the actual killer, and neither the jury’s special circumstance findings nor 

the felony-murder special-circumstance findings established that defendant 

was an aider and abettor who acted with an intent to kill. The Attorney 

General agrees with defendant’s position. 
5

In assessing whether a defendant has met the prima facie showing, the 

court may consider “documents in the court file or otherwise part of the 

record of conviction” to determine whether the defendant is ineligible as a 

matter of law—i.e., if the defendant “was convicted on a ground that remains 

valid notwithstanding Senate Bill [No.] 1437[ ].” (People v. Verdugo (2020) 

44 Cal.App.5th 320, 329–330, fn. 9, review granted Mar. 18, 2020, S260493.) 

On this point, we find People v. Drayton (2020) 47 Cal.App.5th 965 (Drayton)

instructive. There, as in this case, the parties disputed whether the 

defendant had made the requisite prima facie showing under section 1170.95, 

subdivision (c). The district attorney contested the defendant’s assertion he 

was not a major participant in a robbery who acted with reckless indifference 

to human life, and “there had been no prior finding by a fact finder or 

admission by [the defendant] to that effect.” (Id. at p. 981.) The trial court 

evaluated testimony provided at the preliminary hearing and concluded the 

defendant was a major participant who acted with reckless indifference to 

human life, and it denied the petition. (Id. at p. 982.) 

The Court of Appeal reversed, emphasizing “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 so holding, the court explained, “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—for example, a 

petitioner’s assertion that a particular conviction is eligible for relief where 

the crime is not listed in subdivision (a) of section 1170.95 as eligible for 

resentencing.” (Id. at p. 980.) “[T]his 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 
6

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 in the commission of the 

crime).” (Ibid.; accord Cooper, supra, 54 Cal.App.5th at p. 124, rev. granted

[concluding the “trial court here erred by relying on the transcript of the 

preliminary hearing to deny [the defendant’s] petition”].)

3

Here, the record was silent as to any findings regarding whether 

defendant was a major participant or acted with reckless indifference to 

human life.4 In concluding otherwise, the trial court improperly engaged in 

factfinding and the weighing of evidence—assessments that should only have 

occurred through a new factfinding process following issuance of an order to 

show cause.

3 Some courts have held that trial courts “should not accept the 

petitioner’s assertions as true and issue an order to show cause if substantial 

evidence in the record supports a murder conviction under current law.” 

(People v. Garcia (2020) 57 Cal.App.5th 100, 116.) However, as explained by 

our colleagues in Division Two, “we cannot agree with cases like Garcia that 

interpret section 1170.95 to allow the trial court at the prima facie stage to 

resolve disputed facts or to answer only the question whether the existing 

record precludes a conviction on a murder theory that was never tried. By 

allowing new evidence and providing for an evidentiary hearing, the 

Legislature plainly intended that the issues concerning whether the 

defendant was guilty under theories of murder not previously or necessarily 

decided would be resolved anew, through a factfinding process affording a 

degree of due process to the petitioner.” (People v. Duchine (2021) 

60 Cal.App.5th 798, 813.)

4 The special circumstance findings in this matter did not require the 

jury to find defendant was a major participant or acted with reckless 

indifference. However, appellate courts are split as to whether pre-People v. 

Banks (2015) 61 Cal.4th 788/People v. Clark (2016) 63 Cal.4th 522 special 

circumstance findings that do require such findings renders a petitioner 

ineligible for relief under section 1170.95 as a matter of law. (See People v. 

Jones (2020) 56 Cal.App.5th 474, 478–479 [citing cases].)
7

III. DISPOSITION

The order denying defendant’s petition for resentencing is reversed, 

and the matter is remanded for the trial court to conduct further proceedings 

under section 1170.95, consistent with this opinion.
8

MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

SANCHEZ, J.

A159477

People v. Roundtree