People v. Marsh CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. CR-59191
- Trial judge
- Peter C. Deddeh
- Outcome
- reversed — Reversed and remanded with directions.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Joan K. Irion, Patricia Guerrero
Analysis
The trial court denied Marsh's petition for resentencing under Penal Code section 1170.95, finding he was an active participant in the homicide based on the record of conviction. The Court of Appeal reversed and remanded with directions to issue an order to show cause and hold an evidentiary hearing, accepting the Attorney General's concession that the trial court engaged in impermissible factfinding.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“The court found Marsh was an active participant in the homicide and denied the petition for resentencing.” | de novo | error | agree with court The appellate court accepted the Attorney General's concession that the trial court's reliance on the prior appellate opinion to determine Marsh was an 'active participant' constituted impermissible factfinding rather than a legal determination based on the record of conviction. Under People v. Lewis, a trial court may deny a petition without an order to show cause only if the record demonstrates ineligibility as a matter of law, but it may not engage in finding facts, which requires an evidentiary hearing after an order to show cause is issued. Because the determination of 'active participation' in this context required evaluating the specific facts of Marsh's conduct beyond the mere legal sufficiency of the conviction, the trial court exceeded its authority by making that finding without the requisite procedural safeguards. |
Authorities
- relied: People v. Lewis (2021) 11 Cal.5th 952 — A trial court may review the record of conviction, including prior appellate opinions, to determine if a petition under section 1170.95 states a prima facie case, but may not engage in factfinding; if the record does not demonstrate ineligibility as a matter of law, the court must issue an order to show cause and hold an evidentiary hearing.
The appellate opinion: sound — The opinion is sound because it correctly applies the holding in People v. Lewis to distinguish between legal determinations based on the record of conviction and impermissible factfinding. By accepting the concession and remanding for an evidentiary hearing, the court adheres to the procedural requirements established by the Supreme Court for section 1170.95 petitions.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Denis Marsh's Penal Code section 1170.95 resentencing petition at the prima facie stage without issuing an order to show cause, finding from the record of conviction (including the 1985 appellate opinion) that he was an active participant in the homicide. The Court of Appeal, accepting the Attorney General's concession that this was impermissible factfinding under People v. Lewis, reversed and remanded with directions to issue an OSC and hold an evidentiary hearing.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.95 petition at the prima facie stage, without an order to show cause, based on a finding that Marsh was an active participant in the homicide drawn from the record of conviction including the prior appellate opinion“The court found Marsh was an active participant in the homicide and denied the petition for resentencing.” | unclear | error (procedure) | unsure Lewis permits a trial court to consult the record of conviction, including a prior appellate opinion, at the prima facie stage, but forbids weighing evidence or finding facts; denial without an OSC is proper only if the record shows ineligibility as a matter of law. A finding that Marsh was an 'active participant' is a characterization of the facts rather than a legal determination compelled by the verdict (the GBI enhancement does not itself establish actual-killer status or intent to kill), so treating it as factfinding is consistent with Lewis. The Court of Appeal, however, did not actually decide the question; it called it close and deferred to the concession, and it did not address Lewis's holding that prima facie-stage error is reviewed for prejudice under Watson. The result is defensible but the reasoning is thin, so I am not fully certain the court would have reached the same result on independent analysis. |
Authorities
- relied: People v. Lewis (2021) 11 Cal.5th 952 — At the section 1170.95 prima facie stage a trial court may consider the record of conviction, including a prior appellate opinion, and may deny the petition without an OSC only if the record establishes ineligibility as a matter of law; it may not engage in factfinding or weigh evidence, which must await an evidentiary hearing after an OSC.
The appellate opinion: sound with gaps — The court reached a result consistent with Lewis by treating the trial court's 'active participant' determination as impermissible factfinding, and remanding for an OSC and evidentiary hearing is a defensible application of that rule. But the court expressly declined to resolve the legal question it identified as close, rested the reversal on the Attorney General's concession, and did not address whether the error was prejudicial under the Watson standard Lewis applied to prima facie-stage errors.
How this analysis was made · dispute it
unusual dispositionOpinion
Filed 8/31/21 P. v. Marsh CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078224
Plaintiff and Respondent, v. (Super. Ct. No. CR-59191)
DENIS PAUL MARSH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Reversed and remanded with directions. Rex Adam Williams, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis, and Christine L. Bergman, Deputy Attorneys General, for Plaintiff and Respondent. In 1983, Denis Paul Marsh was convicted in a court trial of first degree murder (Pen. Code,1 § 187); conspiracy to commit burglary (§§ 182.1 and 459); robbery (§ 211); and one count of arson (§ 451, subd. (b)). The court found Marsh used a deadly weapon (§ 12022, subd. (b)) and that he personally inflicted great bodily injury on the victim (§ 12022.7). Marsh was sentenced to an indeterminate term of 26 years to life in prison. Marsh appealed and this court affirmed the judgment in an unpublished opinion People v. Marsh (Apr. 9, 1985, D000355). In 2019, Marsh filed a pro. per. petition for resentencing under section 1170.95. The trial court appointed counsel, received briefing, considered the record of conviction, and held a hearing at which both parties submitted on the briefs. The court found Marsh was an active participant in the homicide and denied the petition for resentencing. Marsh appeals contending the court engaged in impermissible factfinding without issuing an order to show cause (OSC). The Attorney General originally conceded error. After briefing was completed, the Supreme Court issued its opinion in People v. Lewis (2021) 11 Cal.5th 952 (Lewis). There, the court held that a trial judge considering whether a petition filed under section 1170.95 stated a prima facie case for relief, could review the record of conviction, including any prior appellate opinion. The court concluded a trial court could rely on that record and deny a petition without an OSC, if the record demonstrated the petitioner is not eligible for relief as a matter of law. The limitation on such authority is the court may not engage in finding facts. Evidentiary evaluation must await the issuance of an OSC and an appropriate evidentiary hearing. (Lewis, at pp. 970-973.)
1 All further statutory references are to the Penal Code. 2 After the issuance of the Lewis opinion, we requested supplemental briefing. In the briefing, the Attorney General argues the court’s conclusion Marsh was an active participant in the crime was based on impermissible factfinding. STATEMENT OF FACTS The following summary of facts is taken from our prior opinion. (People v. Marsh, supra, D000355.) “Marsh, 16, Jeffrey Inglett, 17, and Paul Webber, 18, planned to burglarize the home of Anna Weerts, 86, a lifetime resident of North Park. In preparation for the burglary Marsh and Inglett went to Weerts’ home early one morning. They were high on alcohol and drugs. Once there, the two decided to proceed immediately with the burglary. They broke into the house and found Weerts asleep on the couch. Some money lay next to her. Marsh and Inglett approached the couch, awakening Weerts. A brief struggle for the money ensued whereupon Inglett cut Weerts’ throat and stabbed her in the chest. Marsh took the knife and also stabbed Weerts. Marsh and Inglett piled some flammable materials on Weerts’ body and torched the corpse. They departed with four to five thousand dollars cash and some gold coins, returning to the house twice in a vain attempt to extinguish the fire. Marsh, Inglett and Webber later divided the money. The fire destroyed the house. Weerts died of multiple stab wounds; she had been stabbed over 90 times.” DISCUSSION The question of whether the court could rely on our prior opinion, which declared Marsh planned the burglary, actively participated, stabbed the victim, and set her on fire is a close one. Is relying on the opinion factfinding? Here, the People’s appellate representative continues to advocate for remand and an evidentiary hearing. We think the prudent 3 course is to accept the concession in this case and remand for an evidentiary hearing. Marsh will get the benefit of the statutory procedure and the District Attorney will have the opportunity to make an evidentiary showing. We take this course in the face of the Attorney General’s arguments to avoid appearing to be an advocate for any party to this appeal. We express no opinion regarding the resolution of the evidentiary hearing. DISPOSITION The order denying Marsh’s petition for resentencing under section 1170.95 is reversed. The matter is remanded to the Superior Court with directions to issue an OSC and to conduct an evidentiary hearing as required by statute.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
GUERRERO, J.
Cites, in this corpus
- People v. Lewis S260598 · 2021-07-26