People v. Allen CA1/3

DISCUSSION

Defendant contends on appeal the trial court misapplied section 1170.95, subdivision (c) when denying his resentencing petition without issuing an order to show cause or holding an evidentiary hearing. The People agree, acknowledging the trial court erroneously reviewed the record for substantial evidence rather than simply determining whether he made a prima facie case. The parties are correct. To make a prima facie showing, a petitioner, in his or her petition, must attest under penalty of perjury that he or she is eligible for relief under section 1170.95, based on three prerequisites: (1) “[a] complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine”; (2) “[t]he petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder”; and (3) “[t]he petitioner

3 could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January…