Filed 11/24/20 P. v. Mallet CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JEROME EVAN MALLET

Defendant and Appellant.

 B301369

 (Los Angeles County

 Super. Ct. No. A619834)

APPEAL from an order of the Superior Court of Los 

Angeles County, John J. Lonergan, Jr., Judge. Affirmed.

Tracy A. Rogers, under appointment by the Court of

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Charles S. Lee and Stephanie C. Santoro, 

Deputy Attorneys General, for Plaintiff and Respondent.

______________________
2

In 1981, a jury convicted Jerome Evan Mallet of first 

degree murder and other charges. On January 16, 2019, Mallet 

filed a petition for resentencing under Penal Code section 

1170.95,

1 which the trial court summarily denied. Mallet appeals 

from this denial. The appeal centers on a common issue faced by 

trial courts in applying section 1170.95, namely, the scope of the 

trial court’s prima facie review of the petition. In this case, the 

People agree the trial court exceeded the scope of this review by

making factual findings. We agree and reverse with instructions 

for the trial court to issue an order to show cause and conduct a 

hearing pursuant to section 1170.95, subdivision (d).

BACKGROUND

A. Summary of Facts

This court affirmed the judgment on June 29, 1983. (People 

v. Mallet (June 29, 1983, No. 41449) [nonpub. opn.].) The 

following summary of the facts is derived from our unpublished 

opinion from Mallet’s direct appeal.

On December 27, 1980, between 11:00 p.m. and midnight, 

Cora Taylor2 was at home with her daughter Mary, her son 

Michael, and Michael’s friend, William Birdsong. According to 

Cora’s trial testimony, following a knock at the front door, Mallet

and two other young men entered her apartment and asked to 

speak with “Pierre,” a nickname for Michael. As the three men,

Cora, Michael, Mary, and Birdsong gathered in the combined 

living room and bedroom, Mallet hit Birdsong in the mouth and a 

1 All unspecified statutory references are to the Penal Code.

2 Because they share the same last name, we will refer to 

Cora Taylor and her children, Mary and Michael, by their first 

names, intending no disrespect.
3

scuffle ensued. Michael stated he knew Mallet from the local 

park. At trial, Mary testified she had seen Mallet twice before in 

their neighborhood.

Mallet directed the four occupants to lie on the bed face 

down and a coat was thrown over their heads. The assailants

started ransacking the house. Cora observed that Mallet had a 

gun. At one point, he aimed a gun at Cora and said, “You old 

bitch, I ought to blow your head off.” The assailants asked the 

Taylors and Birdsong if there was money in the house and were 

told there was none. Birdsong was asked if he had any money; he 

said he had five dollars. He was told that if it was discovered 

that he had more, his head would be blown off. One of the 

assailants went through Birdsong’s pockets, and whispered in 

Birdsong’s ear, “You have been invited to your friend’s death.” 

Cora’s purse was taken, and the assailants continued ransacking 

her home.

At one point, Mallet hit Mary near her left ear. Cora also 

was struck. Cora, who was able to catch glimpses of what was 

occurring by peeking from under the coat, saw one of the 

assailants pull Mary off the bed by her hair. Then, someone also 

pulled Birdsong up by his hair. Cora and Michael were told to 

stand. Michael was asked about money, and he said there was 

some money in the kitchen.

One of the assailants raped Mary in the bathroom. Mallet

attempted to rape Mary. Cora and Birdsong subsequently were 

pushed into the bathroom with Mary. While the bathroom door 

was closed, they heard gunshots. Cora testified that she peeked 

through the bathroom door and saw Michael lying in a puddle of 

blood in the living room. He had been shot in the head. Birdsong 

testified that one of the assailants said to Michael, “We don’t like 
4

you anyway.” At trial, Cora and Mary identified Mallet as the 

gunman.

The suspects fled. A few minutes after midnight, law 

enforcement officers near the local park saw a vehicle traveling 

without lights. Officers pursued the vehicle, which crashed. 

Four young men ran from the vehicle and officers subsequently 

found Mallet nearby, hiding in a bush.

Officers recovered a stereo and a .357 Luger pistol from the 

getaway vehicle. It was determined that Michael died of a 

gunshot wound to the head. Due to the damaged condition of the 

bullet removed from his body, it was not possible to correlate the 

bullet to the Luger. (People v. Mallet, supra, No. 41449.)

B. The Jury Verdict and Sentencing Hearing

Following a jury trial, Mallet was convicted of one count of 

first degree murder under section 187 (count 1), two counts of 

rape in concert under section 264.1 (counts 2 & 3), one count of 

assault with intent to commit rape under section 220 (count 4), 

one count of burglary under section 459 (count 5), and three 

counts of robbery under section 211 (counts 6 through 8). The 

jury found true the allegations that Mallet personally used a 

firearm and that a principal was armed with a firearm in the 

commission of all the offenses, except count 4, assault with intent 

to commit rape.3

As to count 6, which charged Mallet with robbery of 

Michael, the murder victim, it was alleged that Mallet personally 

inflicted great bodily injury on Michael. The jury found this 

allegation to be not true. The jury deadlocked on the special 

3 The trial court granted a motion to dismiss the principal 

armed allegation with respect to count 4.
5

circumstance allegations that the murder was committed during 

the commission of a robbery and a burglary—which, prior to the 

passage of Proposition 115 in 1990, necessarily would have 

required the jury to find that Mallet was the actual killer or 

intentionally aided and abetted in first degree murder. (§ 190.2; 

see People v. Banks (2015) 61 Cal.4th 788, 798 [“as it stood in 

1990, state law made only those felony-murder aiders and 

abettors who intended to kill eligible for a death sentence”];

Yoshisato v. Superior Court (1992) 2 Cal.4th 978, 986-987

[discussing amendments to § 190.2 following passage of 

Proposition 115].)

The special circumstance allegations were dismissed at the 

time of sentencing. At the sentencing hearing, the trial court 

commented that based on the jury’s failure to find that Mallet

inflicted great bodily injury on the murder victim, the jury 

apparently felt that Mallet was not the actual killer. The trial 

court clarified, “for the purpose of the record, I am going to 

conclude that [Mallet] was not the actual shooter. Nor did he 

actually aid and abet the actual shooter [¶] . . . [¶] [w]ithin the 

meaning of [section] 190.[2], because I could see some problems 

with respect to the special circumstance, and apparently one or 

more of the jurors did too.” “I just want the record to be clear so 

that the appellate court won’t think I am sentencing him on the 

basis that he actually aided and abetted the actual shooter.” The 

trial court predicated its sentencing decision on a finding that the 

murder was committed during a robbery. The court sentenced 

Mallet to state prison for the term prescribed by law on the 

murder count, plus two years for the firearm enhancement, to be 

served consecutive to a total term of 21 years and four months on 

the remaining counts.
6

C. The Direct Appeal

On appeal, Mallet argued, among other things, that the 

felony-murder doctrine was unconstitutional because it permitted 

a finding of malice aforethought as a matter of law when a killing 

occurred during the commission of certain enumerated felonies. 

We acknowledged that the issue was under review in the 

California Supreme Court. Our decision recited the current state 

of the law, as embodied in People v. Johnson (1974) 38 

Cal.App.3d 1, 8, which held that the felony-murder rule 

“dispenses with premeditation and malice as elements of first 

degree murder.”

We noted there was no eyewitness testimony about the 

actual shooting of Michael. The prosecution’s theory was that 

Mallet shot and killed Michael while perpetrating a robbery. We 

found there was some question “of the presence of actual, rather 

than artificially presumed, malice.” (People v. Mallet, supra, 

No. 41449.) Nonetheless, because malice aforethought was not 

an element of felony murder, we upheld the conviction under the 

existing law.

D. The Petition for Resentencing

Mallet filed a petition for resentencing under section 

1170.95 on January 16, 2019. He alleged that he was convicted of 

felony murder under a theory that is now invalid. The trial court 

appointed counsel to represent Mallet.

The People filed an opposition to Mallet’s petition. The 

opposition attached and cited to the information, a probation

report, the abstract of judgment, the remittitur from the direct 

appeal, a comprehensive risk assessment of Mallet, a life prisoner 

evaluation, and transcripts of hearings relating to evidence and 

jury selection. Mallet, via his counsel, filed a reply.
7

On September 10, 2019, the trial court summarily denied 

Mallet’s section 1170.95 petition. In doing so, the trial court’s 

minute order specified that it reviewed Mallet’s petition, the 

People’s response, “the court file (if available),” and any appellate 

decisions. However, the trial court also stated that it derived the

summary of facts on which it based its ruling on “the appellate 

decision, People’s response in opposition to the petition and police 

reports.”

The trial court observed that it was not known whether 

Mallet was the actual killer. “Assuming he was not the one to

fire the fatal shot,” the court concluded, “Mallet clearly aided and 

abetted in the killing. In addition, the facts surrounding this 

incident show Mallet had the specific intent to kill Michael.” The 

trial court further concluded that Mallet was a major participant 

in the crime who acted with reckless indifference to human life 

because he initially possessed the firearm, he was the first to 

make physical contact with one of the victims “when he grabbed 

Birdsong,” he demanded money and drugs from the victims, he 

attempted to rape Mary, and he acted with the other assailants 

to isolate Michael from the other victims before killing him.

In response to our order for augmentation of the record, the 

trial court transmitted the superior court file and exhibits for our 

inspection. The clerk of the superior court certified that the 

police report was not located. The augmented record contains the 

transcript of the sentencing hearing, the abstract of judgment, 

and our opinion on direct appeal, among other records not 

relevant to our decision. It does not contain the jury instructions, 
8

jury questions, verdict forms, or transcripts of the trial testimony 

and arguments of counsel.4

Mallet timely appealed the September 10, 2019, order.

DISCUSSION

A. Section 1170.95

Mallet argues the trial court erred by denying his petition 

for resentencing without issuing an order to show cause or 

conducting an evidentiary hearing. The People agree, 

acknowledging that the record of conviction does not demonstrate 

as a matter of law that Mallet was either the actual killer, acted 

with specific intent to kill, or was a major participant who acted 

with reckless indifference to human life.

Senate Bill No. 1437 (2017-2018 Reg. Sess.) was enacted “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.” (Stats. 2018, ch. 1015, § 1, subd. (f); 

People v. Lewis (2020) 43 Cal.App.5th 1128, 1135, review granted 

Mar. 18, 2020, S260598.) Senate Bill No. 1437 accomplished this 

4 Based upon the trial court’s statement that it reviewed 

“the court file (if available),” it is unclear whether it had before it 

the same documents that were provided in response to our order 

for augmentation. The documents contained in the augmented 

record are at odds with the trial court’s statement that it 

reviewed “the court file (if available),” and “police reports.” Based 

on our decision to remand this matter for further proceedings, we 

need not consider the effect of this ambiguity.
9

by amending section 188, which defines malice, and section 189, 

which defines the degrees of murder, and as now amended, 

addresses felony murder liability under subdivision (e). (People v. 

Verdugo (2020) 44 Cal.App.5th 320, 326, review granted Mar. 18, 

2020, S260493.)

Senate Bill No. 1437 also enacted section 1170.95, which 

provides a vehicle for persons who were convicted of murder 

pursuant to a now invalidated theory to petition to have their 

conviction vacated and to be resentenced. (Lewis, supra, 43 

Cal.App.5th at p. 1135; see § 1170.95 subd. (a).)

Section 1170.95 requires the trial court to engage in 

multiple levels of review. (People v. Drayton (2020) 47 

Cal.App.5th 965, 975; People v. Verdugo, supra, 44 Cal.App.5th at 

pp. 327-328; People v. Lewis, supra, 43 Cal.App.5th at pp. 1136-

1138.) The trial court first conducts an initial review to 

determine the facial sufficiency of the petition. (§ 1170.95,

subd. (b); Drayton, supra, at p. 974; Verdugo, supra, at p. 328.) If 

the petition includes the required information, the trial court 

then reviews the petition to determine whether the petitioner has 

made a prima facie showing of eligibility. (§ 1170.95, subd. (c); 

Drayton, supra, at pp. 975-976; Verdugo, supra, at pp. 327-328, 

330; Lewis, supra, at p. 1138.) If so, the trial court must then 

appoint counsel and order briefing to assist the trial court in 

determining whether the petitioner has made a prima facie 

showing that he or she is entitled to relief. (§ 1170.95, subd. (c); 

Verdugo, supra, at p. 332 [concluding under subd. (c) of § 1170.95, 

the petitioner must demonstrate two prima facie showings]; 

Lewis, supra, at p. 1140 [holding § 1170.95, subd. (c) does not 

require appointment of counsel “until the court makes the 
10

threshold determination that [the] petitioner ‘falls within the 

provisions’ of the statute”].)

In determining whether a petitioner has demonstrated the 

prima facie showings, the trial court may review the record of 

conviction. (People v. Lewis, supra, 43 Cal.App.5th at p. 1138.) 

The record of conviction may include the complaint, information 

or indictment, the verdict forms or the factual basis for a 

negotiated plea, the abstract of judgment, and any appellate 

decision on direct appeal. (People v. Verdugo, supra, 44 

Cal.App.5th at pp. 329-330, 331-333; Lewis, supra, at p. 1138.)

At these initial stages, the trial court’s role is to determine 

whether the petitioner is ineligible for relief as a matter of law, 

making all factual inferences in favor of the petitioner. (People v. 

Drayton, supra, 47 Cal.App.5th at p. 980; People v. Verdugo, 

supra, 44 Cal.App.5th at p. 329.) It must not engage in factfinding or assess the credibility of the witnesses. (Drayton, 

supra, at p. 980.) The court “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).” (Ibid.)

If the petitioner satisfies both prima facie showings, then 

the trial court must issue an order to show cause why

resentencing relief should not be granted. (§ 1170.95, subd. (c); 

People v. Verdugo, supra, 44 Cal.App.5th at pp. 328-329.) “At the 

hearing to determine whether the petitioner is entitled to relief, 

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).) “The prosecutor and 
11

the petitioner may rely on the record of conviction or offer new or 

additional evidence to meet their respective burdens.” (Ibid.)

B. The Trial Court Erred in Summarily Denying 

Mallet’s Section 1170.95 Petition 

In the present case, the jury did not determine that Mallet

was the actual killer, aided and abetted in the first degree 

murder with the intent to kill, or was a major participant who 

acted with reckless indifference to human life. The jury was 

unable to reach a verdict on the special circumstance allegations 

and found not true the allegation that Mallet inflicted great 

bodily injury on Michael while committing the robbery. In fact, 

during sentencing, the trial court went so far as to observe that, 

in its view, Mallet was not the actual killer and did not aid or 

abet in the killing. Thus, although the jury instructions are not 

available, the trial court’s comments at sentencing indicate that 

Mallet was convicted on a theory of felony murder based solely on 

the commission of the underlying robbery. As we noted on direct 

appeal, at the time of Mallet’s trial in 1981, the felony murder 

rule did not require proof of premeditation and malice. (See

People v. Chun (2009) 45 Cal.4th 1172, 1182 [under prior law, a 

killing committed during an enumerated felony supports a 

murder conviction “without the necessity of further examining 

the defendant’s mental state”].)

In reaching the conclusions that Mallet aided and abetted 

with the specific intent to kill, or that he was a major participant 

who acted with reckless indifference to human life, the trial court 

engaged in the type of factfinding that is not permissible prior to 

the issuance of an order to show cause under section 1170.95, 

subdivision (c). (See People v. Drayton, supra, 47 Cal.App.5th at 

p. 982.) The record of conviction does not establish as a matter of 
12

law that Mallet is ineligible for relief under section 1170.95. 

Accordingly, the matter must be remanded for an order to show 

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

pursuant to section 1170.95, subdivision (d), during which the 

parties may “rely on the record of conviction or offer new or 

additional evidence to meet their respective burdens.” (§ 1170.95, 

subd. (d)(3).) We express no opinion on Mallet’s ultimate 

entitlement to relief following a hearing.

DISPOSITION

The order denying Mallet’s petition for resentencing under 

section 1170.95 is reversed and the matter is remanded to the 

superior court. On remand, the superior court shall issue an 

order to show cause and conduct a hearing in accordance with 

section 1170.95, subdivisions (c) and (d).

NOT TO BE PUBLISHED

FEDERMAN, J.*

We concur:

CHANEY, J.

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.
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BENDIX, Acting P. J.