California Penal Code 1170.95: Felony Murder Resentencing Petitions

California Penal Code 1170.95 is the former number of the statute that lets people convicted of murder, attempted murder, or manslaughter petition the sentencing court to vacate the conviction and be resentenced when the case rested on a theory California has since eliminated or restricted. The section was renumbered to Penal Code 1172.6 in June 2022, but the substance is the same.¹ There is no filing deadline, so eligibility does not expire with the age of the conviction.²

What the Law Changed

Two bills reshaped murder liability in California and built the petition process on top of that change. Senate Bill 1437, signed in 2018, amended Penal Code sections 188 and 189 and created the original petition mechanism as section 1170.95.³ Before SB 1437, a person could be convicted of murder because a death occurred during a felony they participated in, or because the killing was a foreseeable outcome of a crime they helped commit. Actually killing someone, or intending anyone to die, was not required.

SB 1437 tightened both doctrines. Under the amended Penal Code 188, a person convicted of murder as a principal must have personally acted with malice aforethought; malice can no longer be imputed based solely on participation in a crime. Under the amended Penal Code 189, felony murder is limited to three categories: the person was the actual killer, aided the killer with intent to kill, or was a major participant in the underlying felony who acted with reckless indifference to human life.⁴

Senate Bill 775, effective in 2022, widened who can petition. The original 1170.95 covered only murder convictions. SB 775 added attempted murder convictions based on the natural and probable consequences doctrine and manslaughter convictions where the prosecution had relied on a felony murder or natural and probable consequences theory. It also swept in any conviction based on a theory that imputed malice solely from participation in a crime.⁵

Who Qualifies

Three conditions all have to be met.⁶ The prosecution must have been allowed to proceed under felony murder, the natural and probable consequences doctrine, or another theory that imputed malice based solely on participation in the crime; this usually appears in the charging document or the jury instructions. The person must have been convicted of murder, attempted murder, or manslaughter at trial or by plea, and convictions for lesser included offenses count if the underlying charge was prosecuted under one of those theories. And the person could not be convicted under the law as it stands today, meaning they were not the actual killer, did not aid the killing with intent to kill, and were not a major participant in the underlying felony who acted with reckless indifference to human life.⁴

How To File

The petition goes to the court that imposed the original sentence. Copies must be served on the district attorney (or whichever agency prosecuted the case) and on the attorney who represented the petitioner at trial, or the county public defender.⁶ The official form is available through the court clerk or the county public defender’s office.²

Include your name, mailing address, the superior court case number, the year of conviction, and a declaration that you meet all three eligibility conditions. Ask for appointed counsel in the petition itself. Anyone who requests an attorney gets one, and the evidentiary stage is complex enough that representation matters.⁶ Because the petition is filed within the existing criminal case rather than as a new civil action, there is generally no separate filing fee.

The Prima Facie Review

After the petition is filed and served, the prosecutor has 60 days to file a response, and the petitioner has 30 days after that to reply. Either deadline can be extended for good cause.⁶

The court then holds a hearing to decide whether the petitioner has stated a prima facie case for relief. The bar is deliberately low. In People v. Lewis, the California Supreme Court held that the court should not weigh evidence or make factual findings at this stage. The judge takes the allegations as true and asks only whether, if proven, they would entitle the petitioner to relief. The record of conviction can be consulted if it directly refutes an allegation, but the petition cannot be rejected on credibility grounds.⁷ If the showing is made, the court issues an order to show cause. If it denies the petition, it must issue a written statement of reasons.⁵

The Evidentiary Hearing

The hearing must be held within 60 days after the order to show cause, though the court can extend that for good cause. The burden falls on the prosecution: the district attorney must prove beyond a reasonable doubt that the petitioner is guilty of murder or attempted murder under the law as amended by SB 1437. Showing that “substantial evidence” supported the original conviction is not enough.⁶

Either side may present new or additional evidence beyond the original trial record. The court may also consider prior testimony, stipulated evidence, matters subject to judicial notice, and the factual summary in any prior appellate opinion. Hearsay from a preliminary hearing is not usable at this stage unless it fits some other hearsay exception.¹

The parties can also skip the hearing by stipulating that the petitioner qualifies. And if a prior court or jury already found that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court must vacate the conviction and resentence.¹

What Relief Looks Like

If the prosecution does not carry its burden, the court vacates the murder, attempted murder, or manslaughter conviction and any attached enhancements, then resentences the petitioner on whatever valid counts remain, as if the petitioner had never been sentenced. The new sentence cannot exceed the original one.⁶

The petitioner receives credit for all time served. If time served already exceeds the maximum on the remaining counts, the court resentences to time served and orders release. The judge may also impose parole supervision for up to two years after the sentence is completed.¹

When the murder or attempted murder charge was generic and the target offense was never separately charged, the court redesignates the conviction as the target offense or underlying felony for resentencing. No statute of limitations blocks that redesignation.¹

Appealing a Denial

A denial at either the prima facie stage or after the evidentiary hearing can be appealed. The notice of appeal must be filed within 60 days of the denial using the standard felony notice of appeal form (CR-120), which is available in prison law libraries.² The petition process does not replace any other legal remedy already available.¹

1
California Legislative Information. California Code PEN 1172.6
2
Office of the State Public Defender. Senate Bill 775 Information
3
LegiScan. Bill Text CA SB1437 2017-2018 Regular Session Chaptered
4
California Legislative Information. California Code PEN 189
5
LegiScan. Bill Text CA SB775 2021-2022 Regular Session Chaptered
6
California Legislative Information. California Code PEN 1172.6 – Recall and Resentencing
7
FindLaw. People v Lewis (2021)