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4th Appellate District Reverses 1170.95 Denial

California v. Ervin Docket: G059731 (Fourth Appellate District), Opinion Date: November 30, 2021. In 1991, petitioner Nokkuwa Ervin and other perpetrators committed an armed robbery of a store. During the robbery, one of the perpetrators shot and killed an innocent victim. A jury found Ervin guilty of burglary, robbery, and murder. The jury found true two sentencing allegations that Ervin personally used a firearm as to the burglary and the robbery counts. The jury found not true a sentencing allegation that Ervin personally used a firearm as to the murder count. The jury also found true two felony-murder special-circumstance allegations. The judgment was affirmed on appeal. In 2019, the California Legislature limited the scope of the felony-murder rule: if a victim is killed during a designated felony, a defendant cannot be found guilty of murder unless he was: (1) the actual killer; (2) aided and abetted the actual killer with the intent to kill; or (3) was a major participant in the underlying felony and acted with reckless indifference to human life. Ervin petitioned for resentencing, arguing he could no longer be convicted of murder. The trial court initially found Ervin established a prima facie basis for relief, issued an order to show cause (OSC), and set an evidentiary hearing. But the court later revoked the OSC and summarily denied the petition. The court ruled the felony-murder special-circumstance findings precluded Ervin from obtaining relief under Penal Code section 1170.95 as a matter of law. The trial court’s ruling was made prior to the California Supreme Court’s ruling in California v. Lewis, 11 Cal.5th 952 (2021), which clarified the guidelines for section 1170.95 petitions. In its de novo review, the Court of Appeal found Ervin’s section 1170.95 petition reliably met the “very low” prima facie threshold for relief. Thus, the Court reversed the trial court’s summary denial of Ervin’s section 1170.95 petition. On remand, the Court ordered the trial court to issue an OSC and to conduct an evidentiary hearing. #117095 #felonymurder #specialcircumstances #majorparticipant #courtreversal


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