Filed 4/23/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and 

Respondent,

v.

CHRISTOPHER DEHUFF,

Defendant and 

Appellant.

 B305374

 (Los Angeles County

 Super. Ct. No. PA028453)

APPEAL from an order of the Superior Court of Los 

Angeles County, Michael Terrell, Judge. Reversed and 

remanded.

Edward H. Schulman, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Chief Assistant Attorney General, Julie L. Garland, Senior 

Assistant Attorney General, Eric A. Swenson, Supervising 
2

Deputy Attorney General, Michael D. Butera, Deputy 

Attorney General, for Plaintiff and Respondent.

__________________________

Defendant and appellant Christopher DeHuff appeals

from the trial court’s postjudgment order denying his

petition for resentencing pursuant to Penal Code section 

1170.951 and Senate Bill No. 1437 (Senate Bill 1437). 

Section 1170.95 provides for vacatur of a murder conviction 

obtained under either the natural and probable

consequences doctrine or, under certain circumstances, the 

felony murder theory of liability. (People v. Martinez (2019) 

31 Cal.App.5th 719, 723.)

DeHuff contends the trial court erred by denying his 

petition at the second stage of section 1170.95 subdivision (c)

analysis when the court ruled that, although the jury was 

presented with two theories of liability—one valid (implied 

malice) and the other invalid (second degree felony 

murder)—substantial evidence supported a jury finding that 

DeHuff committed the killing with malice aforethought, and 

he was therefore ineligible for relief as a matter of law.

We reverse and remand to the trial court for further 

proceedings.

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

FACTS AND PROCEDURAL HISTORY2

The Offenses

“On October 13, 1997, Daniel Sylvers’s white 1991 

Dodge Caravan was stolen from Foothill Boulevard in Los 

Angeles. Sylvers reported the theft to police.

“On October 14, 1997, at about 9:30 p.m., Los Angeles 

Police Officers Douglas Gerst and Ron Stringer were on 

patrol on their motorcycles when they saw a white van 

driven by appellant straddling lane lines as it traveled west 

on Van Nuys Boulevard. The van swerved to the left, into 

oncoming traffic, then back to the right. The van then drove 

through a red light at about 60 miles per hour. The driver of 

a vehicle at that intersection braked sharply to avoid a 

collision, coming within one or two car lengths of the van.

“When Officers Gerst and Stringer caught up with the 

van, they activated their red lights. Appellant slowed down 

to about 25 miles per hour, but did not stop. The officers 

activated their sirens, but appellant still did not stop. 

Appellant then turned the van into a residential area, 

accelerated and swerved toward two oncoming cars, causing 

the cars to drive off the road. Appellant drove through a 

stop sign and a red light and missed colliding with a car by 

inches.

2 We take judicial notice of this court’s prior 

unpublished opinion in People v. DeHuff (Oct. 14, 1999, 

B126967) (DeHuff), from which the facts are drawn.
4

“After a sharp turn on Lassen, appellant accelerated to 

about 70 miles per hour. The van’s headlights were not on. 

At the intersection of Lassen and Sepulveda, appellant ran a 

red light and collided with a van driven by Linda Wageman. 

The van hit the center divider, flew four to five feet in the 

air, landed on its left side, slid[] to the curb and began 

burning. Officers Gerst and Stringer were able to remove a 

passenger, Rebecca Wageman, from the van. Fire prevented 

the officers from removing Linda Wageman from the van. 

She died. Rebecca suffered a concussion, a fractured rib, and 

second and third degree burns.

“Subsequent investigation of the accident scene 

determined that appellant was travelling at about 77 miles 

per hour at the time of the collision.

“Appellant was not a licensed driver.” (DeHuff, supra, 

B126967.)

The Trial

At trial, the jury was instructed on two theories of 

murder: (1) second degree implied malice murder; and (2) 

second degree felony murder based upon the offense of 

evading an officer while driving with willful and wanton 

disregard for the safety of persons or property (§ 2800.2, 

subd. (a)).

The jury found DeHuff guilty of second degree murder 

(§ 187, subd. (a) [count 1]), evading an officer while operating 

a motor vehicle with willful disregard (§ 2800.2, subd. (a) 
5

[count 3]), unlawful driving or taking of a vehicle (Veh. Code, 

§ 10851, subd. (a) [count 4]), receiving stolen property (§ 496, 

subd. (a) [count 5]), and misdemeanor unlicensed driver 

(Veh. Code, § 12500, subd. (a) [count 7]).3 As to counts 3 and 

4, the jury found true the allegations that DeHuff personally 

inflicted great bodily injury upon Rebecca Wageman in the 

commission of the crimes (§ 12022.7, subd. (a)).

The trial court sentenced DeHuff to 15 years to life in 

count 1, plus a consecutive determinate term of 3 years in

count 4 (the high term), plus 3 years for the infliction of 

great bodily injury enhancement in count 4. Counts 3 and 5 

were stayed pursuant to section 654. DeHuff was sentenced 

to six months for the misdemeanor in count 7.

The Appeal

On appeal, DeHuff argued that (1) the trial court 

erroneously limited the order in which the jury could 

consider the charges against him, and (2) his conviction for 

second degree felony murder violated his constitutional 

rights to due process of law because that crime was not 

defined by statute. (DeHuff, supra, B126967.) The People 

argued that the trial court failed to impose certain 

mandatory fines and assessments. (Ibid.) Another panel of 

this court imposed a parole revocation fine of $10,000 

pursuant to section 1202.45, but otherwise affirmed the 

judgment. (Ibid.)

3 Counts 2 and 6 were dismissed.
6

Motion to Recall the Remittitur

On March 10, 2005, DeHuff filed a motion to recall 

remittitur with the Court of Appeal, based on the Supreme 

Court’s decision in People v. Howard (2005) 34 Cal.4th 1129 

(Howard). Howard held that “a violation of section 2800.2 is 

not, in the abstract, inherently dangerous to human life. 

Therefore, the second degree felony-murder rule does not 

apply when a killing occurs during a violation of section 

2800.2.” (Id. at pp. 1138–1139.) DeHuff argued that 

Howard should apply retroactively in his case. The Court of 

Appeal denied the motion.

Petition for Resentencing, Opposition & Reply

On January 10, 2019, DeHuff filed a petition for 

vacatur of the murder conviction and resentencing under 

section 1170.95. He utilized a standardized form, and 

indicated that he was convicted of second degree murder 

under the natural and probable consequences doctrine or the 

second degree felony murder doctrine and could not now be 

convicted of murder due to the changes to section 188, 

effective January 1, 2019. He requested that counsel be 

appointed to him.

The People filed a response on October 15, 2019, 

contending that DeHuff was ineligible for relief because the 

record of conviction supported the conclusion that he had 

been convicted for second degree murder with malice 
7

aforethought and could still be convicted of second degree 

murder despite the changes to section 188. The People 

additionally filed a response arguing that section 1170.95 

was unconstitutional.

Defense counsel filed a reply on November 18, 2019.

The reply argued that the prosecution’s interpretation of 

implied malice was so broad as to render section 1170.95 

meaningless, and asserted that the People sought to avoid 

an evidentiary hearing where the burden of proof would fall 

to them. The reply argued that, at the stage of the 

proceedings then pending before the trial court, the question 

was whether DeHuff had made a prima facie showing of 

eligibility. If an inquiry into the facts was necessary to 

resolve DeHuff’s eligibility, the trial court was obligated to 

issue an order to show cause and hold an evidentiary 

hearing. The reply also argued that section 1170.95 was 

constitutional.

Hearing and Supplemental Briefing

At a hearing on December 16, 2019, the trial court 

ruled that section 1170.95 was constitutional, and permitted 

further argument on the issue of eligibility.

The prosecution argued that there was “ample evidence 

in the record of conviction to support a conclusion that a 

reasonable jury could find beyond a reasonable doubt that 

the defendant acted with implied malice.” (Italics added.)
8

Defense counsel responded that this proposed analysis 

would “gut” Senate Bill 1437 because the People could claim 

implied malice was an available theory of relief in almost 

any murder case. At trial in DeHuff’s case, the jury was 

instructed on implied malice, but the prosecutor told the jury 

it could ignore implied malice and convict on the second 

degree felony murder theory. Any comparison of what the 

jury would have done with respect to each theory required 

an evidentiary hearing. Defense counsel suggested that in 

this case he might call an accident reconstructionist. 

Counsel asserted that “the burden that the People have that 

they need to prove to the court is beyond a reasonable doubt, 

so the court will be sitting as the finder of fact for a fact 

which was not presented to the jury originally.”

The trial court stated that, in the absence of guidance 

from the courts of appeal, in its view the procedure required 

the court to first look at the record to determine whether it 

could reach a conclusion on the facts already presented. If 

the evidence was not sufficient, the parties could present

new evidence. The court believed it would be appropriate to 

issue an order to show cause so that the parties could point 

to specific portions of the record in support of their 

respective positions, and then “take it potentially a step 

further after that.”

The prosecution disagreed, arguing that, at this stage,

the trial court had to determine whether DeHuff had made a 

prima facie showing of eligibility on the basis of the record of 
9

conviction, and that an order to show cause should only be 

issued if additional evidence was needed.

Defense counsel reiterated that an order to show cause 

should issue whenever there were factual issues to be 

determined, whether or not new evidence was needed.

The court decided to conduct further research on the 

issue to determine whether it was necessary to issue an 

order to show cause, and invited the parties to submit 

further briefing.

On January 16, 2020, the People filed a supplemental 

opposition. Relying on People v. Lewis (2020) 43 Cal.App.5th 

1128 (Lewis), review granted March 18, 2020, S260598, the 

People argued that the court could rely on the record of 

conviction to make a prima facie determination without 

holding an evidentiary hearing. The People asserted that 

the trial court’s role was to determine whether the record of 

conviction contained sufficient evidence that DeHuff acted 

with conscious disregard for life.

Trial Court’s Ruling

On February 7, 2020, the court issued its written 

decision, denying DeHuff’s petition for resentencing. The 

court ruled that Senate Bill 1437 was constitutional, but 

that DeHuff failed to make a prima facie showing and was 

not eligible for relief as a matter of law. The court stated 

that the question before it was whether DeHuff satisfied the 

condition that he “could not be convicted of first or second 
10

degree murder because of changes to Section 188 or 189 

made effective January 1, 2019.” The court cited to evidence 

of DeHuff’s conduct in the record, and concluded that “there 

was much more than sufficient evidence to establish that 

Defendant acted with conscious disregard for human life and 

that he could be found liable for murder under an implied 

malice theory.”

DeHuff timely appealed.

DISCUSSION

Section 1170.95

“Through section 1170.95, Senate Bill 1437 created a 

petitioning process by which a defendant convicted of 

murder under a felony murder theory of liability could 

petition to have his conviction vacated and be resentenced.” 

(People v. Smith (2020) 49 Cal.App.5th 85, 92 (Smith), 

review granted July 22, 2020, S262835.) We remain in 

agreement with the majority of the courts of appeal as to the

procedure set forth in the statute, which requires that a 

petitioner make two separate prima facie showings under 

section 1170.95, subdivision (c).

4 (See People v. Harris

4 The First District of the Court of Appeal, Division 

One, disagrees, and has held that a petitioner is entitled to 

counsel upon filing a facially sufficient petition for relief, and 

that subdivision (c) contemplates a single prima facie review 
11

(2021) 60 Cal.App.5th 939, 951, fn. 8 [listing cases favoring 

this view].)

In the first stage under subdivision (c), “[t]he 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.” Specifically, the court 

determines whether the petitioner has made a prima facie 

showing that he has met the requirements set forth in 

subdivision (a), including 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) [t]he 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) [t]he petitioner could not be convicted of first or 

second degree murder because of changes to Section 188 or 

189 made effective January 1, 2019.’ (See § 1170.95, subd. 

(c); People v. Verdugo (2020) 44 Cal.App.5th 320, 327, review 

granted Mar. 18, 2020, [S260493 (Verdugo)].)” (Smith, 

supra, 49 Cal.App.5th at p. 92.) “If it is clear from the record 

of conviction that the petitioner cannot establish eligibility 

as a matter of law, the trial court may deny the petition. 

(Verdugo, [supra,] at p. 330.) If, however, a determination of 

eligibility requires an assessment of the evidence concerning 

of the petition. (People v. Cooper (2020) 54 Cal.App.5th 106, 

review granted Nov. 10, 2020, S264684.)
12

the commission of the petitioner’s offense, the trial court 

must appoint counsel and [order briefing]. (Verdugo,

[supra,] at p. 332; Lewis, supra, 43 Cal.App.5th at p. 1140.)” 

(Smith, supra, at p. 92, fn. omitted.)

In the second stage proscribed under section 1170.95, 

subdivision (c), the petitioner must make “a prima facie 

showing that he or she is entitled to relief.” (§ 1170.95, subd. 

(c); People v. York (2020) 54 Cal.App.5th 250, 262–263, 

review granted Nov. 18, 2020, S264954.)

“‘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.’ [¶] 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).) If the prosecutor does not stipulate 

to vacating the conviction and resentencing the petitioner 

(§ 1170.95, subd. (d)(2)), the People have the opportunity to 

present new and additional evidence at the hearing to 

demonstrate the petitioner is not entitled to resentencing. 

(§ 1170.95, subd. (d)(3).) The petitioner also has the 

opportunity to present new or additional evidence in support 

of the resentencing request. (Ibid.)” (Verdugo, supra, 44 

Cal.App.5th at p. 327.)
13

Analysis

This appeal presents the question of what a stage two 

analysis under section 1170.95, subdivision (c)—whether 

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

entitled to relief—entails. While the parties agree that the 

trial court erred in finding that DeHuff failed to make a 

prima facie showing of entitlement, they disagree as to how 

the trial court is to make such an evaluation, and as to the 

result that we should reach in DeHuff’s case as a 

consequence.

DeHuff argues that he is entitled to resentencing,

because the jury was presented with alternative legal 

theories of liability for murder—one valid (implied malice 

murder), and one invalid (second degree felony murder). He 

reasons that, because there is no special verdict reflecting 

which theory the jury based its finding of guilt upon, and the 

jury was not instructed that it must unanimously agree 

regarding the theory of liability for murder, there is no way 

to ascertain whether the jury relied on the invalid theory of 

second degree felony murder based on his violation of section 

2800.2, subdivision (a). DeHuff contends that the standard 

for evaluating “alternative theory error” of this sort is that 

the error must be harmless beyond a reasonable doubt as 

articulated in Chapman v. California (1967) 386 U.S. 18, 24 

(Chapman). He asserts that application of the Chapman

standard in this case “must necessarily lead to the granting 

of relief . . . this Court’s [sic] should order the trial court do 
14

so without further hearing.” Alternatively, DeHuff urges us 

to vacate his second degree murder conviction and remand to 

the trial court, giving the prosecution the option to either 

retry him on the charge of murder under the valid implied 

malice theory, or accept a conviction for evading an officer in 

violation of section 2800.2, subdivision (a).

The People agree that DeHuff has made a prima facie 

showing that he is entitled to relief under stage two of the 

section 1170.95, subdivision (c) inquiry, but argue that the 

appropriate remedy is remand to the trial court with 

directions to issue an order to show cause and hold a hearing 

at which the burden is on the People to prove that DeHuff is 

ineligible for relief beyond a reasonable doubt. (§ 1170.95, 

subd. (d)(3).) The People contend that at the entitlement 

stage of the inquiry under section 1170.95, subdivision (c), 

the trial court may only deny the petitioner relief if he is 

ineligible as a matter of law, and that the trial court erred in 

reviewing the record for substantial evidence that DeHuff 

could still be convicted under a valid theory of murder. We 

agree with the People.

We begin by rejecting DeHuff’s contention that the 

trial court must evaluate his murder conviction as the court 

of appeal would evaluate alternative legal theory error, and 

find that he is entitled to resentencing unless the error is 

harmless beyond a reasonable doubt. DeHuff 

misapprehends the procedures set forth in section 1170.95. 

This is not a direct appeal. Under section 1170.95, DeHuff is 

entitled to resentencing only if he is able to make prima facie
15

showing that he “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, subd. (a)(3).) 

The statute does not permit a petitioner to establish 

eligibility on the basis of alleged trial error.5 (§ 1170.95, 

subd. (a).) As we will discuss, DeHuff has made a prima 

facie showing of entitlement because he could no longer be 

prosecuted under a second degree felony murder theory, not 

because the jury was improperly instructed at trial.

6

5 In the response, the People cite our decisions in 

Smith, supra, 49 Cal.App.5th 85, and People v. Torres (2020) 

46 Cal.App.5th 1168, 1178–1180, review granted June 24, 

2020, S262011, as holding that a petitioner may base a claim 

for 1170.95 relief on a challenge to a special circumstance 

finding made prior to People v. Banks (2015) 61 Cal.4th 788

and People v. Clark (2016) 63 Cal.4th 522. Such holdings 

might undermine the position that an 1170.95 petition is not 

a means to attack a murder conviction on a basis other than 

the amendments to sections 188 and 189. However, this is 

an inaccurate characterization of our holdings in those cases. 

Neither Smith nor Torres holds that a petitioner may 

challenge a special circumstance true finding in a section 

1170.95 petition. Both cases hold that the trial court may 

not rule that a petitioner is ineligible for relief as a matter of 

law on the basis of a pre-Banks/Clark special circumstance

finding at the first stage of the analysis under section 

1170.95, subdivision (c), which takes place prior to briefing.

6 It is doubtful that DeHuff’s jury was, in fact, 

improperly instructed. Following the issuance of Howard, 

supra, 34 Cal.4th 1129, another panel of this court stated in 
16

With respect to how the trial court should determine 

whether a petitioner has made a prima facie showing of 

entitlement under section 1170.95, subdivision (c), there is 

disagreement between the courts of appeal. In People v. 

Drayton (2020) 47 Cal.App.5th 965, at pages 980 through 

981 (Drayton), the Sixth District of the Court of Appeal 

described the procedure as comporting with that of a habeas 

corpus proceeding: “[W]hen 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—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 

its order denying DeHuff’s motion to recall the remittitur: 

“We question whether Howard has any application to 

appellant’s case. The Supreme Court’s decision in Howard

was based on a 1998 amendment to section 2800.2, which 

broadened the scope of that section. The Court held that the 

broadened version of section 2800.2 was not an inherently 

dangerous felony because it could be violated in the abstract 

without endangering human life. Even assuming that 

Howard should be applied retroactively, it could only be so 

applied to crimes committed after the effective date of the 

amendment. Appellant committed his violation of section 

2800.2 in 1997, before the amendment was passed, and was 

tried in 1998, before the amendment’s effective date of 

January 1, 1999. (Veh. Code, § 2800.2; Stats.1998, c. 472 

(A.B.2066); Cal. Const., Art. IV, § 8.)”
17

1170.95 as eligible for resentencing. Just as in habeas 

corpus, if the record ‘contain[s] facts refuting the allegations 

made in the petition . . . the court is justified in making a 

credibility determination adverse to the petitioner.’ 

[Citation.] However, this authority to make determinations 

without conducting an evidentiary hearing pursuant to 

section 1170.95, subd. (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 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(a), then the trial court should issue an order to show 

cause. (§ 1170.95(c).)”

The majority of the courts of appeal to consider the 

question have agreed with Drayton. (People v. Tarkington

(2020) 49 Cal.App.5th 892, 898, review granted Aug. 12, 

2020, S263219; People v. Nguyen (2020) 53 Cal.App.5th

1154, 1165–1166; People v. Perez (2020) 54 Cal.App.5th 896, 

903–904, review granted Dec. 9, 2020, S265254; People v. 

Duchine (2021) 60 Cal.App.5th 798, 813 (Duchine); People v. 

Harris (2021) 60 Cal.App.5th 939, 958; People v. Rivera

(2021) 62 Cal.App.5th 217; People v. Secrease (Apr. 19, 2021, 

A158342) ___ Cal.App.5th ___ [2021 WL 1538008].)

People v. Garcia (2020) 57 Cal.App.5th 100, review 

granted February 10, 2020, S265692 (Garcia) expresses a
18

contrary, minority view. In Garcia, the Court of Appeal, 

Second Appellate District, Division Six took the same 

position as the trial court in the present case, and held that, 

when determining entitlement in stage two, the trial court 

should determine whether substantial evidence supports the 

conclusion that the petitioner could still be convicted of 

murder following the amendments to sections 188 and 189.

The Garcia court explained: “Section 1170.95 clearly and 

unambiguously requires a prima facie showing that the 

petitioner ‘could not be convicted of . . . second degree 

murder because of changes to Section 188 . . . .’ (Id., subd. 

(a)(3), italics added.) ‘Could’ is ‘used . . . as an alternative to 

can suggesting less force or certainty.’ (Webster’s 3d New 

Internat. Dict. (1981) p. 517.) In view of the evidence that 

appellant directed [his co-defendant] to ‘stick’ the victim 

with a knife, as a matter of law appellant could be convicted 

of second degree murder as a direct aider and abettor despite 

the changes to section 188.” (Garcia, supra, at p. 114.) The 

court continued, “It is also possible that the jury believed 

appellant made this statement but intended only to wound 

[the victim], not kill him. But we should not speculate what 

the jury might have believed. The jury neither expressly nor 

impliedly found that appellant did not harbor the specific 

intent to kill when he allegedly told [his codefendant] to stab 

[the victim]. In the absence of such a finding, appellant 

could be convicted of murder as a direct aider and abettor 

because a reasonable trier of fact could find beyond a 

reasonable doubt that he said, ‘Stick him. Stick him,’ and 
19

that he intended to kill [the victim] when he made this 

statement.” (Id. at pp. 114–115.) In the Garcia court’s view, 

it was not necessary to “resort . . . to a ‘weighing of facts and 

evidence’ to reach this conclusion. If the jury had been 

instructed on direct aiding and abetting and had based its 

murder conviction on this theory, the conviction would have 

been upheld on appeal because it would have been supported 

by substantial evidence. [Citation.] . . . No weighing of the 

evidence is involved in applying the substantial evidence 

test.” (Id. at p. 115.) The Garcia court concluded, “There is 

a gatekeeping function to be performed here. . . . [¶] The 

gate in the instant matter should remain closed. The 

ameliorative statute was not designed to benefit a gang 

member who participated in a brutal gang assault upon a 

helpless victim ‘green-lighted’ by the gang and who, 

according to the trial testimony of percipient witnesses, 

directed the actual killer to stab the victim.” (Id. at p. 117.)

It is tempting in cases where the trial record includes 

extensive inculpatory evidence supporting the convictions for 

horrific crimes to agree with the procedure sanctioned in

Garcia, and we have empathy for the trial courts that 

anticipate an evidentiary hearing will have little chance of 

leading to a different result. However, we must honor the 

Legislature’s words and intent. In doing so, we conclude 

that Drayton expresses the better view of the statutory 

process and requirements.

7

7 The People state that this court authored People v. 

Duke (2020) 55 Cal.App.5th 113 (Duke), a case upon which 
20

Recently, the Court of Appeal, First District, Division 

Two, discussed the differences between Drayton and Garcia

in depth, in Duchine, supra, 60 Cal.App.5th at page 813, 

footnote omitted: “Drayton ascribes a meaning to the third 

element of section 1170.95, subdivision (a) different from 

that espoused in Garcia. If a defendant asserts he lacked 

the requisite intent or did not act in a manner that would 

make him liable under still-valid murder theories, unless the 

record of conviction refutes those assertions as a matter of 

law, the defendant has met his prima facie burden. 

(Drayton, supra, 47 Cal.App.5th at p. 980.) In that 

circumstance, the trial court should take him at his word 

and not engage in factfinding on the issues ‘without first 

issuing an order to show cause and allowing the parties to 

present evidence at a hearing.’ (Id. at pp. 981–982 [where 

petitioner denied he was a major participant in the felony or 

acted with reckless indifference to human life and record did 

not conclusively refute these assertions, trial court should 

not have decided these factual issues without issuing order 

to show cause and allowing parties to present evidence at 

hearing].) Implicit in Drayton’s holding is that the third 

element of section 1170.95, subdivision (a) does not require 

an absence of sufficient evidence, on the record of conviction, 

to support a hypothetical finding that the defendant is guilty 

of murder under a currently valid theory.”

Garcia heavily relied for its reasoning. In fact, Duke was 

authored by Division One of the Second District of the Court 

Appeal.
21

The Duchine court concluded: “In view of the 

ameliorative purposes of Senate Bill 1437, the Legislature’s 

stated concerns about proportionality, fairness and excessive 

punishment, and its adoption of a trial court proceeding at 

which new evidence may be submitted and a criminal trial 

burden of proof beyond a reasonable doubt is applied, 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.

“The standard adopted by Garcia, in which the trial 

court focuses on the state of the existing record and applies 

an appellate review substantial evidence standard, makes 

little sense in this context. If it had intended the process to 

be substantial evidence review of the existing record, the 

Legislature could simply have provided an appellate remedy, 

such as direct appeal for nonfinal convictions and habeas 

corpus for final convictions. This is not what it did. Instead, 

the Legislature imposed the burden of proof on the 

prosecution, at the resentencing hearing. The interpretation 

adopted by Garcia would mean the prosecution’s burden 
22

would be to prove ‘beyond a reasonable doubt’ that 

‘substantial evidence’ exists, which by itself borders on 

incomprehensible. The court would then employ these two 

widely divergent standards in a combined (and backwards) 

fashion to determine, as Garcia suggests, whether a jury 

hypothetically could have found a defendant guilty under a 

permissible theory had it addressed the issue. In short, the 

idea that the prosecution must prove beyond a reasonable 

doubt that there is substantial evidence in a prior record to 

support a hypothetical finding of guilt on a theory of murder 

that may never have been presented to a jury is beyond that 

border.” (Duchine, supra, 60 Cal.App.5th at pp. 813–814, fn.

omitted.)

We agree with Duchine and its reasoning. In this case, 

DeHuff was prosecuted on two theories of liability—implied 

malice and second degree felony murder based on evading an 

officer by driving with reckless disregard for the safety of 

persons or property (§ 2800.2, subd. (a))—and there is no 

way to ascertain from the record upon which theory the jury 

based its finding of guilt. Following the amendments to 

section 188, the statute now 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 imputed to a person based 

solely on his or her participation in a crime.” (§ 188, subd. 

(a)(3).) The offense of evading an officer while driving with 

reckless disregard for the safety of persons or property 

(§ 2800.2, subd. (a)), is not among the enumerated crimes in 
23

section 189, subdivision (a) that may still serve as a basis for 

a felony murder conviction under certain circumstances.8 

Thus, DeHuff could not be convicted of second degree felony 

murder based on a violation of section 2800.2, subdivision (a) 

as a result of these amendments.

There is substantial evidence in the record to support a 

finding that DeHuff committed second degree murder on an 

8 Section 189, subdivision (a) provides: “All murder 

that is perpetrated by means of a destructive device or 

explosive, a weapon of mass destruction, knowing use of 

ammunition designed primarily to penetrate metal or armor, 

poison, lying in wait, torture, or by any other kind of willful, 

deliberate, and premeditated killing, or that is committed in 

the perpetration of, or attempt to perpetrate, arson, rape, 

carjacking, robbery, burglary, mayhem, kidnapping, train 

wrecking, or any act punishable under Section 206, 286, 287, 

288, or 289, or former Section 288a, or murder that is 

perpetrated by means of discharging a firearm from a motor 

vehicle, intentionally at another person outside of the vehicle 

with the intent to inflict death, is murder of the first degree.” 

Section 189, subdivision (e) limits such liability to certain 

circumstances: “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. [¶] (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.”
24

implied malice theory, but that is not sufficient to preclude 

DeHuff from relief as a matter of law. We therefore reverse 

and remand to the trial court to issue an order to show cause 

and hold a hearing at which the prosecution has the burden 

of establishing that DeHuff is ineligible for relief beyond a 

reasonable doubt. (§ 1170.95, subd. (d)(3).)

DISPOSITION

We reverse the trial court’s order denying the petition 

and remand 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 DeHuff’s murder conviction and recall his 

sentence and resentence him.

MOOR, J.

We concur:

RUBIN, P. J.

KIM, J.