Filed 2/14/22 P. v. Abdul-Malik CA2/8

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

ZIMBABWE ABDUL-MALIK,

Defendant and Appellant.

 B306876

 (Los Angeles County 

 Super. Ct. No. GA045631)

APPEAL from an order of the Superior Court of Los 

Angeles County. Terry Lee Smerling, Judge. Reversed and 

remanded with directions. 

Marilee Marshall, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Rob Bonta, 

Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Susan Sullivan Pithey, Assistant Attorney General, 

Amanda V. Lopez and Nicholas J. Webster, Deputy Attorneys 

General, for Plaintiff and Respondent.

* * * * * * * * * *
2

In 2001, defendant and appellant Zimbabwe Abdul-Malik 

was charged with murder (Pen. Code, § 187, subd. (a)) and 

carjacking (§ 215, subd. (a)). Robbery and gang special 

circumstance allegations were alleged as to the murder count 

(§ 190.2, subd. (a)(17) & (22)). Firearm use and gang allegations 

were alleged as to both counts (§ 12022.53, § 186.22). The 

charges arose from an incident in December 2000, in which 

defendant and two codefendants confronted the victim while he 

was parked in his car in the driveway of his mother’s home. An 

altercation ensued during which the victim was fatally shot. The 

victim’s car was stolen and found crashed into a pole a short 

distance away. (People v. Devore (Mar. 21, 2006, B170095) 

[nonpub. opn.].)

The jury found defendant guilty of murder and carjacking. 

They found not true the special circumstance allegations and the 

allegations defendant personally used a firearm. The jury found 

true the gang allegation and the allegation that a principal used 

a firearm in the commission of the offenses. The trial court 

sentenced defendant to an indeterminate term of 50 years to life. 

In 2006, in an unpublished decision, we affirmed 

defendant’s conviction and ordered correction of the abstract of 

judgment to reflect defendant’s minimum parole eligibility was 

15 years and not 25 years and that the firearm use enhancement 

was pursuant to Penal Code section 12022.53, subdivision (e)(1). 

(People v. Devore, supra, B170095.) 

In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was 

passed. Penal Code section 1170.95 was enacted as part of the 

legislative changes effected by Senate Bill 1437 and became 

effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
3

Defendant filed in propria persona his petition for 

resentencing pursuant to Penal Code section 1170.95 

(erroneously titled petition for writ of habeas corpus), requesting 

resentencing on the grounds he was convicted of murder under a 

felony murder theory. The court appointed counsel for defendant 

and received briefing. 

At a hearing on July 27, 2020, defendant was present and 

represented by appointed counsel. No new evidence was 

presented. The court entertained argument from the parties on 

the briefing alone and denied defendant’s petition, explaining 

there was sufficient evidence to conclude that reckless 

indifference and, to a lesser extent, aiding and abetting remained 

viable theories upon which defendant could be guilty of murder. 

Defendant appealed.

In our original unpublished decision, we reversed and 

remanded with directions to the superior court to issue an order 

to show cause and conduct an evidentiary hearing pursuant to 

Penal Code section 1170.95, subdivision (d)(3). (People v. AbdulMalik (June 8, 2021, B306876) [nonpub. opn.].) We directed the 

superior court, at the evidentiary hearing, to act as an 

independent fact finder and apply the beyond a reasonable doubt 

standard of proof in assessing defendant’s liability for murder 

under current law. 

Respondent did not oppose a remand for purposes of the 

court conducting an evidentiary hearing but opposed the

applicability of the beyond a reasonable doubt standard. 

Respondent filed a petition for review asking the Supreme Court 

to grant review and defer briefing because this case raised the 

same issue then pending before the Court, that is, whether the 

trial court, during an evidentiary hearing under Penal Code 
4

section 1170.95, acts as an independent fact finder or reviews the 

record for substantial evidence. On August 11, 2021, the 

Supreme Court granted respondent’s petition. 

In October 2021, the Legislature passed Senate Bill 775 

(2021–2022 Reg. Sess.) which, among other things, amended the 

language of Penal Code section 1170.95, subdivision (d)(3). 

(Stats. 2021, ch. 551, § 2.)

On December 22, 2021, the Supreme Court transferred this 

case to us with directions to vacate our decision and reconsider 

the matter in light of the passage of Senate Bill 775. Having 

vacated our original decision and reconsidered the issues 

presented in light of the new legislation, we again reverse and 

remand with directions to the superior court to issue an order to 

show cause and conduct an evidentiary hearing in accordance 

with Penal Code section 1170.95, subdivision (d)(3), as amended. 

DISCUSSION 

In amending the law regarding vicarious murder liability, 

Senate Bill 1437 created a specific procedure “for retroactive 

application of its ameliorative provisions. [Penal Code]

[s]ection 1170.95 lays out a process for a person convicted of 

felony murder or murder under a natural and probable 

consequences theory to seek vacatur of his or her conviction and 

resentencing.” (People v. Gentile (2020) 10 Cal.5th 830, 853

(Gentile).)

There is no dispute here that defendant’s murder 

conviction falls within the purview of Penal Code section 1170.95. 

Respondent concedes the jury was instructed on felony murder 

liability and that the jury found defendant did not personally use 

a firearm in the commission of the murder. 
5

Respondent also concedes, both in the original briefing and 

the supplemental brief filed postremand, that defendant made a

prima facie showing of eligibility for relief, that defendant’s 

ineligibility could not be established as a matter of law and that 

the trial court therefore erred in not issuing an order to show 

cause in accordance with Penal Code section 1170.95 and holding 

an evidentiary hearing pursuant to subdivision (d)(3). 

We agree. Because the record of conviction here does not 

establish as a matter of law that defendant is ineligible for relief, 

an evidentiary hearing should be conducted. (Pen. Code, 

§ 1170.95, subd. (c).) 

In light of the amendments to Penal Code section 1170.95 

effected by the passage of Senate Bill 775 in October 2021 while 

this matter was pending in the Supreme Court, respondent now

also concedes the relevant standard of proof to be followed by the 

trial court on remand is beyond a reasonable doubt. 

Among other things, Senate Bill 775 amended and clarified 

the procedures governing an evidentiary hearing conducted 

pursuant to Penal Code section 1170.95, subdivision (d)(3). 

“[T]he burden of proof shall be on the prosecution to prove, 

beyond a reasonable doubt, that the petitioner is guilty of murder 

or attempted murder under California law as amended by the 

changes to Section 188 or 189 made effective January 1, 2019.”

(§ 1170.95, subd. (d)(3).) The new text provides that a prior 

“finding that there is substantial evidence to support a conviction 

for murder, attempted murder, or manslaughter is insufficient to 

prove, beyond a reasonable doubt, that the petitioner is ineligible 

for resentencing.” (Ibid.) 

The amendments also expand on the consideration of 

evidence at the hearing, during which both sides may “offer new 
6

or additional evidence to meet their respective burdens.” (Pen. 

Code, § 1170.95, subd. (d)(3).) The amended statute provides, in 

relevant part, that “[t]he admission of evidence in the hearing 

shall be governed by the Evidence Code, except that the court 

may consider evidence previously admitted at any prior hearing 

or trial that is admissible under current law, including witness 

testimony, stipulated evidence, and matters judicially noticed. 

The court may also consider the procedural history of the case 

recited in any prior appellate opinion.” (Ibid.)

Accordingly, on remand, the trial court shall issue an order 

to show cause and conduct an evidentiary hearing pursuant to 

Penal Code section 1170.95, subdivision (d)(3), as amended by 

Senate Bill 775. At the evidentiary hearing, the trial court shall 

act as an independent fact finder and apply the beyond a 

reasonable doubt standard of proof. (See also Gentile, supra, 

10 Cal.5th at p. 855 [“section 1170.95 requires the superior court 

to determine on an individualized basis, after considering any 

new or additional evidence offered by the parties, whether the 

defendant is entitled to relief”].) 

Finally, defendant argues we may order the trial court to 

skip the evidentiary hearing and proceed to resentencing in light 

of the jury’s not true finding on the special circumstance 

allegation. Respondent contends the issue is not properly before 

us given the scope of the Supreme Court’s transfer order and that 

if we do consider it, we should once again reject it as we did in 

our original decision. We decline to issue the order requested by 

defendant. 

DISPOSITION

The order denying defendant’s resentencing petition is

reversed and the case remanded to the superior court to issue an 
7

order to show cause and conduct an evidentiary hearing pursuant 

to Penal Code section 1170.95, subdivision (d)(3), as amended. 

GRIMES, Acting P. J.

WE CONCUR: 

STRATTON, J. 

WILEY, J.