Newly-Elected Los Angeles County District Attorney George Gascon’s “Directives” Aimed at Addressing Penal Code section 1170.95 Petitions (SB-1437)

On September 30, 2018, Governor Jerry Brown approved Senate Bill No. 1437 which made important amendments to Penal Code sections 188 and 189. Senate Bill No. 1437 also added Penal Code section 1170.95 to the Penal Code and permits a person convicted of felony murder or murder under a natural and probable consequence theory to file a petition with the court to have the murder conviction vacated and to be resentenced under certain conditions. Newly amended Penal Code sections 188 and 189 and the post-conviction petition procedure outlined in Penal Code section 1170.95 took effect on January 1, 2019.

Since the law took effect on January 1, 2019, the Los Angeles County District Attorney’s Office has generally taken a strong stance in opposition against Penal Code section 1170.95 Petitions, broadly arguing that the law was unconstitutional. However, after Los Angeles County District Attorney George Gascon was recently sworn into office on December 8, 2020, he issued specified “Directives” aimed at re-directing his office’s approach to this form of post-conviction relief.

According to “Special Directive 20-14," the Los Angeles District Attorney’s Office will no longer delay this form of relief by making arguments that the law is unconstitutional. The Directives also mandate that if the jury was never instructed on direct aiding and abetting, implied malice murder, or any other intent-to-kill theory, or if the trial prosecutor never argued one of these theories, their office will not argue the petitioner can now be convicted under one of these theories during Penal Code section 1170.95 proceedings. The Directives also indicate that the prosecution must prove beyond a reasonable doubt that the petitioner is ineligible for resentencing if the Petition makes it to an evidentiary hearing, not the “sufficient evidence” standard that prosecutors have previously argued is the standard for the court’s review. These are just a few key points from the new Directives issued by District Attorney Gascon.

If you need assistance with filing a Penal Code section 1170.95 Petition or you have any questions regarding whether you or a loved one are eligible for relief, please our office at 626-577-7700.

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