People v. Aleo
| Decision Date | 27 May 2021 |
| Docket Number | F080005 |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Frank Joseph ALEO, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Eric Christoffersen, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Frank Joseph Aleo of first degree murder in 1983 after he drove three companions to and from an armed robbery and burglary. After the passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), Aleo filed a Penal Code section 1170.95 petition for resentencing, and the superior court appointed the public defender's office to represent him. (Undesignated statutory references are to the Penal Code.) The People responded to Aleo's petition, contending Aleo was a major participant in the underlying crimes and he acted with reckless indifference to human life. Defense counsel did not file a reply, but Aleo filed one on his own behalf, arguing he did not act with reckless indifference to human life. At the hearing on the petition, defense counsel conceded Aleo did not make a prima facie case and submitted that he was a major participant. The court denied the petition without issuing an order to show cause, concluding Aleo was a major participant. Aleo now challenges the denial of his petition, and the People concede remand is necessary for the court to issue a show cause order and to hold an evidentiary hearing.
We agree with the parties, reverse the court's order denying the petition, and remand the matter for further proceedings.
Aleo and Frank Lee Ford were charged with the murder of Dixon Flinders on June 6, 1982, during the commission of a burglary and robbery (count I). The information alleged Aleo was armed with a firearm during the commission of the murder in violation of section 12022, subdivision (a) and that Ford personally used a firearm in violation of section 12022.5. Both Aleo and Ford were also charged with feloniously and by means of force and fear taking personal property from the person, possession, and immediate presence of Sharon Pitts (count II). The information alleged Aleo was armed with a firearm during the commission of the robbery charged in count II in violation of section 12022, subdivision (a), and Ford personally used a firearm during the commission of the robbery in violation of section 12022.5. Finally, Aleo and Ford were charged with burglarizing Flinders's and Pitts's house (count III). Again, the information alleged Aleo was armed with a firearm during the commission of the burglary and Ford personally used a firearm during the commission in violation of section 12022.5. A jury convicted Aleo and Ford of the charged counts and found true the additional allegations.1
In 2019, Aleo submitted a petition for resentencing pursuant to section 1170.95, using a form prepared by Re:Store Justice, a cosponsor of Senate Bill 1437. He checked boxes stating a charging document had been filed against him allowing the prosecution to proceed under a felony-murder theory or the natural and probable consequences doctrine; at trial, he was convicted of first or second degree murder under a felony-murder theory or the natural and probable consequences doctrine; and he could not now be convicted of murder in light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to Senate Bill 1437). He also checked a box indicating he was convicted of first degree murder but could not now be convicted because he was not the actual killer, he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree, and he was not a major participant in the felony or did not act with reckless indifference to human life during the course of the crime or felony. He also checked a box stating, "I request that this court appoint counsel for me during this re-sentencing process." The court subsequently appointed the public defender to represent Aleo.
The People responded to the petition, arguing Aleo was not entitled to relief because the facts of the case established Aleo was a major participant in the robbery and burglary who acted with reckless indifference to human life. They also argued Senate Bill 1437 is unconstitutional. They did not challenge Aleo's assertion the charges against him allowed the prosecution to proceed under a felony-murder theory or the natural and probable consequences doctrine. They also did not argue Aleo was categorically ineligible for relief on any other basis, noting that a person other than Aleo was the actual killer.
Aleo filed a reply in propria persona in which he denied he acted with reckless indifference to human life or that he, with the intent to kill, aided, abetted, counseled commanded, induced, solicited, requested or assisted" the actual killer in the commission of the murder. Aleo noted the People did not argue he was the actual killer. He asserted the People's response suggested he "had no participation in the murder and was 20 to 25 feet away when the actual killer committed the murder." He again requested counsel be appointed for him.
The court held a hearing on Aleo's section 1170.95 petition for resentencing. At the hearing, appointed defense counsel conceded, "[I]t appears that under the new law, they do not meet the prima facie case, and we submit that they are major participants." The court then denied the petition for resentencing, stating it found Aleo "was a major participant in the crime" and "therefore, not eligible for resentencing."
Aleo challenges the denial of his petition for resentencing and the parties agree, as do we, the matter must be remanded for the court to issue an order to show cause and to hold an evidentiary hearing.
On September 30, 2018, the Governor signed Senate Bill 1437, which became effective on January 1, 2019. Senate Bill 1437 "amend[s] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) It amends section 188, which defines malice, and section 189, which defines the degrees of murder to address felony-murder liability, and it adds section 1170.95, providing a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2 – 4.)
Accordingly, section 188 now provides that, " ( § 188, subd. (a)(3), italics added.) The change reflects the Legislature's intent that "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, "All murder ... which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree." Senate Bill 1437 amended section 189, in part, by adding subdivision (e), which provides:
Newly enacted section 1170.95 permits those "convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts ...." (Id. , subd. (a).) An offender may file a petition under section 1170.95 where all three of the following conditions are met:
"(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) The 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) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019." ( § 1170.95, subd. (a)(1)–(3).)
A trial court receiving a petition under section 1170.95 "shall review the petition and determine if the petitioner has made a prima facie showing that ...
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