Filed 11/19/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DERRICK DANTE SWANSON,

Defendant and Appellant.

 B299638

 (Los Angeles County

 Super. Ct. No. NA015162)

APPEAL from an order of the Superior Court of Los 

Angeles County, Gary J. Ferrari, Judge. Affirmed.

Jonathan E. Demson, 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, Idan Ivri and Peggy Z. Huang, Deputy 

Attorneys General, for Plaintiff and Respondent.

_________________________
2

Derrick Swanson was convicted of first degree murder 

under the provocative act doctrine. He filed a petition in the 

superior court under Penal Code section 1170.95, which permits a 

defendant convicted of murder under the felony-murder rule or 

natural and probable consequences doctrine to be resentenced. 

The court found he was ineligible for relief as a matter of law 

because he was convicted neither under the felony murder rule 

nor under the natural and probable consequences doctrine. The 

court therefore denied the petition without appointing counsel or 

holding an evidentiary hearing.

Swanson contends Penal Code section 1170.95 should apply 

to his murder conviction, and he should have been appointed 

counsel to assist with his petition. We disagree with both 

contentions, and thus affirm.

BACKGROUND

We take the facts from our opinion affirming Swanson’s 

conviction. “On March 8, 1993, at approximately 8 p.m.,

appellant and Anthony Chapple robbed four individuals at 

gunpoint at a Long [B]each gas station. One of the victims, 

Ruben Garcia, worked at the gas station. The other victims were 

Garcia’s wife Rosa, his brother, and a female customer.

“Appellant and Chapple forced the victims into a storage 

room where they took Rosa’s jewelry and purse and several 

cartons of cigarettes. Then appellant, who had been told that 

Rosa was pregnant, grabbed her by the hair and dragged her into 

the front office. He called her a “fucking bitch” and told her he 

would kill her if she did not open the safe. After Rosa stated that 

she did not have the keys to the safe, appellant shoved her 

toward the ground. When Garcia tried to stop appellant, Chapple 

threatened to shoot Garcia’s brother. Meanwhile, the two 
3

assailants emptied the cash register and took all of the money 

that Garcia had in his wallet.

“Just before appellant and Chapple left, appellant pointed 

his gun at Garcia and Rosa and fired one shot, causing Rosa to 

scream. Garcia grabbed his gun from the desk drawer, loaded it, 

and gave chase. He testified at trial that he believed Rosa had 

been shot and was afraid that appellant and Chapple would 

return to the gas station and kill the rest of them. As appellant 

and Chapple ran toward an alley, Garcia fired two shots in their 

direction. He then saw Chapple stumble, but thereafter lost sight 

of both men. However, someone in the alley fired a shot at him, 

and he fired back once to frighten the shooter.

“Chapple died as a result of two bullet wounds inflicted by 

Garcia.

“In his defense, appellant claimed that Garcia

unreasonably responded to the situation by shooting at him and 

Chapple. In support of his claim, appellant offered Garcia’s 

initial statement to the defense investigator that he fired at the 

robbers because he wanted to retrieve the stolen money.” (People 

v. Swanson (July 31, 1995, B085170) [nonpub. opn.].)

Swanson was convicted of first degree murder (Pen. Code,

§ 187, subd. (a)),1 assault with a firearm (§ 245, subd. (a)(2)), and 

four counts of second degree robbery (§ 211), and the jury found 

that he personally used a firearm to commit the crimes 

(§ 12022.5, subd. (a)). He was sentenced to state prison for 32 

years to life. 

Swanson claimed on appeal that insufficient evidence 

sustained the murder conviction under the provocative act 

1 All statutory references will be to the Penal Code.
4

doctrine, which holds that when an accomplice is killed by a 

victim during the commission of a robbery, the principal may be 

convicted of murder based on direct liability arising from the 

principal’s own acts. (People v. Superior Court (Bennett) (1990) 

223 Cal.App.3d 1166, 1172.) In affirming the conviction, we 

noted that Swanson not only assaulted Garcia’s pregnant wife, 

but also gratuitously shot at the couple, conduct that was

unnecessary to the underlying robbery. Given Swanson’s 

apparent willingness to engage in needless acts of violence, the 

jury could conclude that Garcia reasonably believed the 

assailants might return to kill the victims even though they 

appeared to have fled, and killed Chapple in a “reasonable 

response to [Swanson’s] provocative conduct.” (People v. 

Swanson, supra, B085170, at p. 4.) 

In 2018, the Legislature enacted Senate Bill No. 1437 

(2017-2018 Reg. Sess.) (SB 1437), which limited the felony 

murder rule and “amend[ed] . . . 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(f).)

SB 1437 added section 1170.95, which establishes a 

procedure by which an individual convicted of murder under the 

natural and probable consequences doctrine or felony murder 

rule can seek vacation of that conviction and resentencing. 

(Stats. 2018, ch. 1015, § 4, pp. 6675-6677; see also People v. Lewis

(2020) 43 Cal.App.5th 1128, 1134, review granted Mar. 18, 2020, 

S260598.) The provisions of SB 1437 became effective on 

January 1, 2019.
5

On May 13, 2019, Swanson filed a petition for writ of 

habeas corpus alleging he was eligible for relief pursuant to 

section 1170.95 because he was found guilty of first degree 

murder under the felony murder rule. The court construed the 

filing as a petition for recall and resentencing under section 

1170.95, and summarily denied it without appointing counsel, 

finding Swanson ineligible for relief because he was convicted 

under the provocative act doctrine, not the natural and probable 

consequences doctrine or felony murder rule. 

DISCUSSION

Swanson contends he made a prima facie showing of 

entitlement to relief under section 1170.95, and the court erred 

by denying him appointed counsel to support his showing. We 

disagree with both contentions.

I. Legal Principles

“A conviction for murder requires the commission of an act 

that causes death, done with the mental state of malice 

aforethought (malice).” (People v. Gonzalez (2012) 54 Cal.4th 

643, 653 (Gonzalez).) 

Prior to the enactment of SB 1437, however, the felonymurder rule provided a theory under which a defendant could be 

found guilty of murder when the defendant or an accomplice 

killed someone during the commission of an inherently dangerous 

felony, whether or not the defendant harbored intent to kill or 

malice. (Gonzalez, supra, 54 Cal.4th at p. 654.) 

Also before SB 1437, malice could be imputed to an aider 

and abettor under the natural and probable consequences 

doctrine.

“ ‘ “A person who knowingly aids and abets criminal 

conduct is guilty of not only the intended crime [target offense] 
6

but also of any other crime the perpetrator actually commits 

[nontarget offense] that is a natural and probable consequence of 

the intended crime.” ’ [Citation.] ‘Thus, for example, if a person 

aids and abets only an intended assault, but a murder results, 

that person may be guilty of that murder, even if unintended, if it 

is a natural and probable consequence of the intended assault.’ 

[Citation.] [¶] A nontarget offense is a ‘natural and probable 

consequence’ of the target offense if, judged objectively, the 

additional offense was reasonably foreseeable. [Citation.] The 

inquiry does not depend on whether the aider and abettor 

actually foresaw the nontarget offense. [Citation.] Rather, 

liability ‘ “is measured by whether a reasonable person in the 

defendant’s position would have or should have known that the 

charged offense was a reasonably foreseeable consequence of the 

act aided and abetted.” ’ ” (People v. Chiu (2014) 59 Cal.4th 155, 

161-162.) 

Thus, before SB 1437, an aider and abettor who lacked 

express malice but merely engaged in activity of which murder 

was a natural and probable consequence could have implied 

malice imputed to him or her, and could therefore be convicted of 

second degree murder. (People v. Chiu, supra, 59 Cal.4th at p. 

164.)

On September 11, 2018, Governor Brown signed SB 1437 

into law, which eliminated the natural and probable 

consequences doctrine for murder and restricted felony murder to 

circumstances where the defendant harbored malice or was a 

major participant in the underlying felony and acted with 

reckless indifference to human life.

A primary purpose of SB 1437 was to align a person’s 

culpability for murder with his or her mens rea. (See Stats. 2018, 
7

ch. 1015, § 1, subd. (g).) To effectuate that purpose, SB 1437 

amended section 188 to state that “[m]alice shall not be imputed 

to a person based solely on his or her participation in a crime.” 

(§ 188, subd. (a)(3).) 

SB 1437 also added section 1170.95, which permits “[a] 

person convicted of felony murder or murder under a natural and 

probable consequences theory” to petition the sentencing court to 

vacate the conviction and resentence on any remaining counts if 

the person could not be convicted of murder under the new 

section 188. (§ 1170.95, subd. (a).) A petition for relief under 

section 1170.95 must include: “(A) A declaration by the petitioner 

that he or she is eligible for relief under this section, based on all 

the requirements of subdivision (a). [¶] (B) The superior court 

case number and year of the petitioner’s conviction. [¶] (C) 

Whether the petitioner requests the appointment of counsel.” 

(§ 1170.95, subd. (b)(1).) If any of this information is missing 

“and cannot be readily ascertained by the court,” the court may 

deny the petition without prejudice. (§ 1170.95, subd. (b)(2).)

If the petition contains the required information, the court 

must “review the petition and determine if the petitioner has 

made a prima facie showing that the petitioner falls within the 

provisions of [section 1170.95].” (§ 1170.95, subd. (c).) If the 

petitioner has made this initial prima facie showing, he or she is 

entitled to appointed counsel, if requested, and the prosecutor 

must file a response, and the petitioner may file a reply. (Ibid.) 

The court then reviews the petition a second time. If it concludes 

in light of this briefing that the petitioner has made a prima facie 

showing of entitlement to relief, it must issue an order to show 

cause and hold an evidentiary hearing to determine whether to 

vacate the murder conviction and recall the sentence and 
8

resentence the petitioner on any remaining counts. (Id. at subds. 

(c) & (d)(1).)

To determine whether a petitioner has made a prima facie 

case for relief under section 1170.95, a trial court may look to the 

record of conviction, including the court file and the opinion from 

the petitioner’s original appeal from his or her conviction. The 

contents of the record of conviction defeat a prima facie showing 

when the record shows as a matter of law that the petitioner is 

not eligible for relief.

We review de novo whether the trial court properly 

interpreted and fulfilled its duty under the statute. (See Greene 

v. Marin County Flood Control & Water Conservation Dist. (2010) 

49 Cal.4th 277, 287.)

II. Analysis

Swanson contends summary denial of his petition was 

premature, and denied him a fair opportunity to respond to the 

trial court’s erroneous conclusion that he was not convicted under 

a natural and probable consequences or felony murder theory. 

He argues he is eligible for resentencing under section 1170.95 

because provocative act murder is merely a version of the natural

and probable consequences doctrine, and first degree provocative 

act murder is “inextricably intertwined” with the felony murder 

rule. We disagree.

A. Provocative Act Murder is Not a Natural and 

Probable Consequences Theory

The record of conviction in this case demonstrates that 

Swanson was convicted of first degree murder not under felonymurder or natural and probable consequences theories, but under 

the provocative act doctrine established by the Supreme Court in 

People v. Gilbert (1965) 63 Cal.2d 690 (Gilbert). There, the Court 
9

declared: “When the defendant or his accomplice, with a 

conscious disregard for life, intentionally commits an act that is 

likely to cause death, and his victim or a police officer kills in 

reasonable response to such act, the defendant is guilty of 

murder.” (Id. at p. 704.) “The provocative act murder doctrine 

has traditionally been invoked in cases in which the perpetrator 

of the underlying crime instigates a gun battle, either by firing 

first or by otherwise engaging in severe, life-threatening, and 

usually gun-wielding conduct, and the police, or a victim of the 

underlying crime, responds with privileged lethal force by 

shooting back and killing the perpetrator’s accomplice or an 

innocent bystander.” (People v. Cervantes (2001) 26 Cal.4th 860, 

867.)

It is apparent, therefore, that “[a] murder conviction under 

the provocative act doctrine . . . requires proof that the defendant 

personally harbored the mental state of malice.” (Gonzalez, 

supra, 54 Cal.4th at p. 655; see People v. Mejia (2012) 211 

Cal.App.4th 586, 603 [“a defendant . . . must personally possess 

the requisite mental state of malice aforethought when he . . . 

causes the death through his provocative act”].) 

This malice requirement for provocative act murder was 

well established in 1995 when we affirmed Swanson’s conviction. 

(See, e.g., People v. Mai (1994) 22 Cal.App.4th 117, 124 [“an 

element of the provocative act doctrine is implied malice”], 

disapproved on other grounds in People v. Nguyen (2000) 24 

Cal.4th 756, 757; see also Gilbert, supra, 63 Cal.2d at pp. 703-704 

[defendant’s murder conviction based on police officer’s killing of 

accomplice required proof of malice].)

The malice requirement stands in marked contrast to the 

mens rea contemplated by the natural and probable consequences 
10

doctrine. As discussed above, liability under that doctrine arose 

when “a reasonable person in the defendant’s position would have 

or should have known that the charged offense was a reasonably 

foreseeable consequence of the act aided and abetted.” (People v. 

Chiu, supra, 59 Cal.4th at p. 162, italics added.) The provocative 

act doctrine, on the other hand, requires that the perpetrator 

exhibit a “conscious disregard for life.” (Gilbert, supra, 63 Cal.2d 

at p. 704; see People v. Smith (2018) 4 Cal.5th 1134, 1165 

[knowledge of danger and conscious disregard for human life is 

essential to a finding of implied malice]; People v. Lee (2020) 49 

Cal.App.5th 254, 261 [the natural and probable consequences 

doctrine is not an implied malice theory].) 

Section 188, as amended, establishes that “in order to be 

convicted of murder, a principal in a crime shall act with malice 

aforethought.” (§ 188, subd. (a)(3).) Because Swanson was 

convicted of provocative act murder, the jury necessarily found he 

acted with malice aforethought. He was therefore not convicted 

under the natural and probable consequences doctrine. (Nor can 

he show that he “could not be convicted of first or second degree 

murder because of changes to Section 188 or 189” as required for 

relief under section 1170.95, subdivision (a)(3).)

Swanson argues provocative act murder has been 

characterized by the courts as one particular subset of the 

natural and probable consequences doctrine. He finds this 

characterization in several cases discussing the requirement, 

under the provocative act doctrine, that the victim’s death result 

from the victim’s or a police officer’s “reasonable response” to the 

defendant’s actions. (Gilbert, supra, 63 Cal.2d at p. 704.) 

Swanson misconstrues the courts’ discussions.
11

In Gonzalez, upon which Swanson relies, the court stated, 

“An important question in a provocative act case is whether the 

act proximately caused an unlawful death. ‘[T]he defendant is 

liable only for those unlawful killings proximately caused by the 

acts of the defendant or his accomplice. [Citation.] “In all 

homicide cases in which the conduct of an intermediary is the 

actual cause of death, the defendant’s liability will depend on 

whether it can be demonstrated that [the defendant’s] own 

conduct proximately caused the victim’s death . . . .” [Citation.] 

“[I]f the eventual victim’s death is not the natural and probable 

consequence of a defendant’s act, then liability cannot attach.” 

[Citations.]” ’ When the defendant commits an inherently 

dangerous felony, the victim’s self-defensive killing is generally 

found to be a natural and probable response to the defendant’s 

act, and not an independent intervening cause that relieves the 

defendant of liability. [Citations.] The question of proximate 

cause is ordinarily decided by the jury . . . .” (Gonzalez, supra, 54 

Cal.4th at pp. 655-656.)

Thus in any provocative act case, where by definition an 

intermediary’s act killed the victim, an important question will 

be whether the defendant’s conduct proximately caused the 

death. (See In re Aurelio R. (1985) 167 Cal.App.3d 52, 57 [“A 

‘provocative act’ murder is yet another breed. Here neither the 

defendant nor his accomplices intend to kill the victim. Nor 

indeed do any of them pull the trigger”].) The Court’s analysis of 

proximate cause in terms of foreseeability of the natural and 

probable consequences of the defendant’s malicious conduct does 

not somehow bring a provocative act killing within the malicefree natural and probable consequences doctrine.
12

The remaining cases upon which Swanson relies for this 

point are similarly distinguished. In People v. Fowler (1918) 178 

Cal. 657, the Supreme Court upheld a murder conviction where 

the death may have resulted not directly from the defendant’s 

conduct but from the action of a third party in running over the 

defendant’s victim. The Court stated that the defendant’s 

criminal liability “would be similar to many that are given in the 

books where the defendant was held responsible for the natural 

and probable result of his unlawful acts.” (Id. at p. 669.)

In People v. Roberts (1992) 2 Cal.4th 271, an inmate 

stabbed by the defendant staggered away and stabbed a guard to 

death. In upholding the defendant’s conviction for the guard’s 

murder, the Court held “there was sufficient evidence of 

proximate cause for the jury to decide that liability attached for 

defendant’s acts,” because “the evidence sufficed to permit the 

jury to conclude that [the guard’s] death was the natural and 

probable consequence of defendant’s act.” (Id. at p. 321.)

In People v. Medina (2009) 46 Cal.4th 913, the Court 

explained, “Liability under the natural and probable 

consequences doctrine ‘is measured by whether a reasonable 

person in the defendant’s position would have or should have 

known that the charged offense was a reasonably foreseeable 

consequence of the act aided and abetted.’ [Citation.] [¶] 

‘[A]lthough variations in phrasing are found in decisions 

addressing the doctrine –“probable and natural,” “natural and 

reasonable,” and “reasonably foreseeable”– the ultimate factual

question is one of foreseeability.’ [Citation.] Thus, ‘ “[a] natural 

and probable consequence is a foreseeable consequence.” ’ ” (Id. 

at p. 920.)
13

In People v. Gardner (1995) 37 Cal.App.4th 473, the court 

stated, “the term ‘reasonable response,’ which the Gilbert court 

used to delineate the scope of murder liability, was simply a 

shorthand way of expressing the principle that the killing must, 

on an objective view of the facts, be proximately caused by the 

acts of the defendant. . . . [¶] It is, therefore, clear that a 

defendant may be liable for murder, as here, for a killing when 

his acts were the ‘proximate cause’ of the death of the victim, 

even though he did not administer the fatal wound. Our 

Supreme Court has also phrased this same requirement of 

‘proximate cause’ interchangeably, on the same page, with the 

question of ‘natural and probable consequence.’ ” (Id. at p. 479.)

None of these cases held that a provocative act murder falls 

under the natural and probable consequences theory of malicefree murder. They held merely that a provocative act murder 

requires a showing that defendant’s act was the proximate cause 

of death, which can be shown where the death was a natural and 

probable consequence of the act. 

B. First Degree Provocative Act Murder does not 

Fall Within the Felony Murder Rule

Swanson argues that because first degree provocative act 

murder is “inextricably intertwined” with the felony murder rule, 

the change in the rule effected by SB 1437 applies to convictions 

for provocative act murder. We reject the premise, and thus the 

argument. 

A “[p]rovocative act murder may be either of the first or 

second degree.” (People v. Mejia, supra, 211 Cal.App.4th at p. 

604.) Like any other murder, a provocative act murder 

committed without deliberation and premeditation is murder of 

the second degree. (Ibid.) However, a provocative act murder of 
14

the second degree can be elevated to first degree murder when it 

occurs “during the course of a felony enumerated in section 189 

that would support a first degree felony-murder conviction.” 

(People v. Sanchez (2001) 26 Cal.4th 834, 852.) 

Section 189 defines felony murder as a death resulting from 

the perpetration of an enumerated felony by a person who “was a 

major participant in the underlying felony and acted with 

reckless indifference to human life.” When a provocative act 

murder is established, “section 189 may properly be invoked to 

determine the degree of that murder. Thus, . . . when a murder is 

otherwise established, section 189 may be invoked to determine 

its degree.” (Gilbert, supra, 63 Cal.2d at p. 705.)

The mere fact that a second degree provocative act murder 

may be elevated to first degree murder pursuant to felony murder 

principles neither intertwines provocative act murder with felony 

murder nor transforms the former into the latter under Gilbert. 

On the contrary, our Supreme Court has held that the 

provocative act doctrine is “distinguished from the felony murder 

rule.” (Gonzalez, supra, 54 Cal.4th at p. 654.) 

Felony murder is a “murder . . . 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 [specified sections of the Penal Code].” 

(§ 189, subd. (a).) “Section 189 requires that the felon or his 

accomplice commit the killing, for if he does not, the killing is not 

committed to perpetrate the felony. Indeed, in the present case 

the killing was committed to thwart a felony. To include such 

killings within section 189 would expand the meaning of the 

words ‘murder . . . which is committed in the perpetration . . . [of] 
15

robbery . . .’ beyond common understanding.” (People v. 

Washington (1965) 62 Cal.2d 777, 781.) 

The felony-murder rule thus cannot support a murder 

conviction when an accomplice is killed by a third party rather 

than by the defendant or another accomplice. (Gonzalez, supra, 

54 Cal.4th at p. 654.)

Swanson argues that elevation of an otherwise second 

degree provocative act murder to first degree murder pursuant to 

felony murder principles attaches first degree murder liability 

where the mens rea was no different from that required in a 

felony murder prosecution, because it is only by felony murder 

principles that the mens rea required for first degree murder is 

imputed to a provocative act defendant. (See People v. Sanchez, 

supra, 26 Cal.4th at p. 852 [“provocative act implied malice 

murders are first degree murders when they occur during the 

course of a felony enumerated in section 189 that would support a 

first degree felony-murder conviction”]; Pizano v. Superior Court

(1978) 21 Cal.3d 128, 139, fn. 4 [“The killing [of the robbery 

victim], having been committed by the policeman to thwart the 

robbery, cannot be said to have been committed in perpetration of 

it. But the act which made the killing a murder attributable to 

the robber—[the robber’s] initiating the gun battle [with the 

policeman]—was committed in the perpetration of the robbery.

Therefore, . . . section 189 may properly be invoked to determine 

that the murder is of the first degree”].)

Perhaps so. But that does not mean the killing was 

“committed to perpetrate the felony” (People v. Washington, 

supra, 62 Cal.2d at p. 781), nor that Swanson was “[a] person 

convicted of felony murder,” as section 1170.95 requires
16

(§ 1170.95, subd. (a)). To hold that a killing perpetrated to 

thwart a felony would constitute felony murder for purposes of 

section 1170.95 would rewrite the statute. This we may not do.

Swanson argues that his first degree provocative act 

murder conviction may signify no more than that the jury found 

that the killing occurred during the commission of a robbery. We 

disagree. To find Swanson guilty of provocative act murder in 

the first instance, the jury necessarily found he acted with 

malice. (See Gonzalez, supra, 54 Cal.4th at p. 655 [“A murder 

conviction under the provocative act doctrine . . . requires proof 

that the defendant personally harbored the mental state of 

malice”].) 

C. Remand is Not Appropriate

Swanson argues remand is necessary because the trial 

court could not determine whether he was entitled to relief 

without permitting the statutory process to take place, and he 

was denied an opportunity to counter the court’s misconceptions 

and establish an appellate record. We disagree.

The right to counsel under section 1170.95 does not attach 

until the petitioner makes a prima facie showing of eligibility 

under the statute (People v. Lewis, supra, 43 Cal.App.5th at pp.

1139-1140, review granted Mar. 18, 2020, S260598; cf. People v. 

Verdugo (2020) 44 Cal.App.5th 320, 328, review granted Mar. 18, 

2020, S260493). Swanson failed to demonstrate eligibility under 

the statute. His arguments contesting that failure have all been 

fairly presented by his appellate counsel, and an appellate record 

preserved.
17

DISPOSITION

The order is affirmed.

CERTIFIED FOR PUBLICATION

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.