People v. Burnham CA4/2

INTRODUCTION

In 1981, a jury convicted defendant and appellant Floyd Burnham of first degree

murder after hearing evidence that he and his accomplice Audis Coley robbed and killed

a man who had picked them up as hitchhikers. At trial, Coley testified that Burnham had

devised the plan to rob the victim of his money and truck and had been the one to shoot

the victim when that plan went awry. Burnham was sentenced to 25 years to life plus two

years.

In 2022, Burnham filed a resentencing petition under Penal Code section 1172.6,

alleging that he could not currently be convicted of murder because of recent changes to

felony murder liability made by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill

1437). (Pen. Code, § 1172.6, subd. (a).)1 Following an evidentiary hearing, the trial

court found beyond a reasonable doubt that Burnham was guilty of murder under current

law because he was a major participant in the robbery who acted with reckless

indifference to human life. (§ 189, subd. (e)(3).)

On appeal, Burnham argues that the trial court violated his federal due process

right to a fair trial by excluding the defense investigator’s statement that Coley’s…