Some people convicted under older felony-murder or imputed-malice theories can petition for relief under Penal Code section 1172.6, but a murder conviction or life sentence alone does not establish eligibility. The statute also reaches specified attempted-murder convictions and manslaughter convictions or pleas. Eligibility turns on the prosecution’s permitted theory, how the conviction arose, and whether the person could still be convicted under California’s 2019 changes to the murder statutes. Penal Code § 1172.6(a).
What are the three eligibility conditions?
All three statutory conditions must apply:
- The complaint, information, or indictment allowed the prosecution to proceed under felony murder; murder under the natural and probable consequences doctrine; another theory imputing malice solely from participation in a crime; or attempted murder under the natural and probable consequences doctrine.
- The person was convicted of murder, attempted murder, or manslaughter after trial, or accepted a plea instead of a trial at which the person could have been convicted of murder or attempted murder.
- Because of the changes to Penal Code sections 188 or 189 effective January 1, 2019, the person could not now be convicted of murder or attempted murder.
These are the terms of Penal Code § 1172.6(a)(1)–(3). The attempted-murder route named in the first condition concerns the natural and probable consequences doctrine. Manslaughter can qualify under the conviction or plea provisions, but its label alone does not establish the charging-theory and current-law conditions.
Under the current felony-murder provision, a participant in one of the listed underlying felonies can be liable for murder if the person was the actual killer; was a nonkiller who intended to kill and aided the actual killer in first-degree murder; or was a major participant who acted with reckless indifference to human life. There is a specific exception: these limits in section 189(e) do not apply when the victim was a peace officer killed in the course of duty and the defendant knew or reasonably should have known the victim was an officer performing those duties. The case record must be checked against the precise theory and exception at issue. Penal Code § 189(e)–(f); Penal Code § 188.
What records show whether the older theory mattered?
Start with the charging document and its amendments, verdict forms or plea papers and factual basis, jury instructions, and the trial transcript. Compare them with the appellate opinion for procedural history, the judgment and sentencing orders, and any earlier section 1172.6 ruling. The case number and conviction year help obtain missing papers. An instruction’s appearance in a file, or a charge that could have allowed one theory, does not alone settle which theory supported the conviction or whether the person could still be convicted today. These records give counsel a way to test each statutory condition without guessing from the sentence.
How does a petition proceed?
The petitioner files in the court that sentenced them and serves the prosecutor or prosecuting agency and either their trial lawyer or the county public defender. The petition must declare eligibility under the three conditions, give the superior court case number and conviction year, and say whether counsel is requested. If required information is missing and the court cannot readily find it, the court may deny the petition without prejudice and explain what is missing. If the petition supplies the information, or the court can readily ascertain it, the court must appoint counsel when requested. Penal Code § 1172.6(b).
For a petition meeting those requirements, the prosecutor generally has 60 days after service to respond; the petitioner may reply within 30 days after the response is served. The court can extend those deadlines for good cause. After the parties have an opportunity to brief the issue, the court holds a hearing on whether there is a prima facie case for relief. A sufficient showing leads to an order to show cause; if the court declines, it must give its reasons. An order to show cause is another stage of review, not an award of resentencing. Penal Code § 1172.6(c).
What happens after an order to show cause?
The court generally holds the relief hearing within 60 days, subject to an extension for good cause. At that hearing, the prosecution must prove beyond a reasonable doubt that the person is guilty of murder or attempted murder under the amended law. A finding that substantial evidence supports the old conviction is insufficient. Previously admitted evidence may be considered only as allowed under current admissibility law; preliminary-hearing hearsay admitted under Penal Code section 872(b) is excluded unless another hearsay exception applies. The parties may offer new or additional evidence. The parties may waive that hearing and stipulate to eligibility. Section 1172.6(d)(2) also requires vacating the conviction and resentencing when a prior court or jury finding establishes that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony. Penal Code § 1172.6(d).
If the prosecution does not meet its burden, the court vacates the qualifying conviction and attached allegations and enhancements, then resentences on remaining charges. If the person qualifies for relief, murder or attempted murder was charged generically, and the target offense was not charged, the statute directs redesignation as the target offense or underlying felony for resentencing. The new sentence cannot exceed the original sentence. Time served is credited; the judge may impose up to two years of parole supervision after completion of the sentence. Other counts and the new sentence can still affect custody, so filing or winning a petition does not itself promise immediate release. Penal Code § 1172.6(d)–(e), (h).
The Law Offices of David S. Chesley homicide defense page covers the underlying charges. To discuss a conviction record and whether section 1172.6 fits, call (800) 755-5174.