People v. Swanson
Not available (Certified for Publication) (2020)
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Rule of Law:
Penal Code section 1170.95, which limits felony murder and the natural and probable consequences doctrine for murder, does not apply to a defendant convicted of murder under the provocative act doctrine, as provocative act murder requires a personal finding of malice aforethought.
Facts:
- On March 8, 1993, Derrick Swanson and Anthony Chapple robbed four individuals at gunpoint at a Long Beach gas station, including Ruben Garcia and his pregnant wife, Rosa.
- Swanson and Chapple forced the victims into a storage room and took Rosa’s jewelry, purse, and several cartons of cigarettes.
- Swanson grabbed Rosa by the hair, dragged her into the front office, called her names, threatened to kill her if she did not open the safe, and then shoved her toward the ground.
- When Ruben Garcia tried to stop Swanson, Chapple threatened to shoot Garcia’s brother.
- The two assailants emptied the cash register and took all of Garcia’s money from his wallet.
- Just before Swanson and Chapple left, Swanson pointed his gun at Garcia and Rosa and fired one shot, causing Rosa to scream.
- Believing Rosa had been shot and fearing the assailants might return to kill the victims, Garcia grabbed his gun from a desk drawer, loaded it, and fired two shots in Swanson and Chapple's direction as they ran toward an alley.
- After Garcia saw Chapple stumble and someone in the alley fired at him, Garcia fired back once more, and Chapple subsequently died from two bullet wounds inflicted by Garcia.
Procedural Posture:
- Derrick Swanson was convicted in Los Angeles County Superior Court (trial court) of first degree murder, assault with a firearm, and four counts of second degree robbery, with a jury finding that he personally used a firearm.
- Swanson was sentenced to state prison for 32 years to life.
- Swanson, as appellant, challenged his murder conviction on appeal to the California Court of Appeal, Second Appellate District (intermediate appellate court) in case B085170, arguing insufficient evidence supported it under the provocative act doctrine.
- The Court of Appeal affirmed Swanson's conviction, finding that his conduct justified the jury's conclusion that the victim's response was reasonable.
- On May 13, 2019, Swanson filed a petition in the superior court for writ of habeas corpus, which the court construed as a petition for recall and resentencing under Penal Code section 1170.95.
- The superior court summarily denied Swanson's petition without appointing counsel, determining he was ineligible for relief as a matter of law because his conviction was under the provocative act doctrine, not the natural and probable consequences doctrine or felony murder rule.
- Swanson, as appellant, appealed the superior court's denial of his petition to the California Court of Appeal, Second Appellate District (intermediate appellate court).
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Issue:
Does Penal Code section 1170.95 allow a defendant convicted of first degree murder under the provocative act doctrine to petition for resentencing?
Opinions:
Majority - Chaney, J.
No, Penal Code section 1170.95 does not allow a defendant convicted of first degree murder under the provocative act doctrine to petition for resentencing because provocative act murder requires the defendant to have personally harbored malice aforethought. The court affirmed the trial court's denial of Swanson's petition, concluding he was ineligible for relief. Senate Bill No. 1437 (SB 1437), which added section 1170.95, aimed to limit murder liability for individuals who were not the actual killer, did not intend to kill, or were not major participants in a felony acting with reckless indifference to human life. A primary purpose of SB 1437 was to align culpability for murder with the defendant's mens rea, specifically by amending Penal Code section 188 to state that malice shall not be imputed solely based on participation in a crime. The court explained that the provocative act doctrine, established in People v. Gilbert (1965), requires proof that the defendant personally harbored the mental state of malice. This doctrine applies when the defendant or an accomplice, with a conscious disregard for life, intentionally commits an act likely to cause death, and a victim or police officer kills in reasonable response to such an act. This malice requirement was well-established when Swanson was convicted, distinguishing provocative act murder from the natural and probable consequences doctrine, which based liability on reasonable foreseeability without requiring personal malice. The court rejected Swanson's argument that provocative act murder is a version of the natural and probable consequences doctrine, clarifying that while proximate causation in provocative act cases might be described using terms like 'natural and probable consequence,' this does not transform it into a malice-free theory. The court further rejected the contention that first degree provocative act murder is 'inextricably intertwined' with the felony murder rule such that SB 1437 should apply. It cited Supreme Court precedent, including People v. Gonzalez (2012) and People v. Washington (1965), distinguishing the provocative act doctrine from the felony murder rule. Felony murder requires the felon or an accomplice to commit the killing to perpetuate the felony, whereas provocative act murder involves a third party killing to thwart the felony. Even though a second degree provocative act murder can be elevated to first degree if it occurs during an enumerated felony, this elevation does not mean the defendant was 'convicted of felony murder' as required by section 1170.95, subdivision (a). The initial finding for provocative act murder already necessitates personal malice. Therefore, because Swanson's conviction required a finding that he acted with malice, he could not show he 'could not be convicted of first or second degree murder because of changes to Section 188 or 189,' making him ineligible for relief. The court also found no error in denying appointed counsel, as the right to counsel under section 1170.95 attaches only after a prima facie showing of eligibility, which Swanson failed to make.
Analysis:
This case clarifies the scope of California's Penal Code section 1170.95 (SB 1437), specifically excluding murder convictions based on the provocative act doctrine from eligibility for resentencing. It reinforces the distinct legal requirement of personal malice for provocative act murder, differentiating it from both felony murder and the natural and probable consequences doctrine. The decision solidifies that defendants whose culpability for murder stemmed from their own malicious actions, even if an intermediary inflicted the fatal wound, are not intended beneficiaries of SB 1437's reforms. This ruling will guide trial courts in summarily denying § 1170.95 petitions where the record clearly indicates a provocative act murder conviction, potentially limiting the number of cases requiring further review and appointed counsel.
