People v. Jones CA1/2

Filed 2/11/21 P. v. Jones CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A159422 v. DARRELL JONES, (Alameda County Super. Ct. No. 68930C) Defendant and Appellant.

Darrell Jones appeals from a trial court decision denying his motion for vacatur and resentencing under Penal Code section 1170.95 regarding his 1980 first degree murder conviction.1 He contends the trial court erred in denying relief without first issuing an order to show cause and holding an evidentiary hearing. Instead the trial court found at the prima facie stage, based on the record of Jones’s conviction, including the unpublished decision affirming his conviction on appeal, that Jones was a “major participant” in the felony that resulted in the murder and that he acted “with reckless indifference to human life.” The Attorney General concedes the trial court erred by engaging in factfinding at the prima facie stage of the proceedings and should have issued an order to show cause and held a hearing. We agree and reverse for further proceedings.

1 Further statutory references are to the Penal Code.

1

BACKGROUND In February 1979, four armed men entered the cafeteria of a church and school, where about 200 people were assembled for a weekly bingo game. One yelled “Freeze. THIS IS A STICK-UP,” and the four began shooting toward the ceiling. A bullet hit and killed one of the bingo participants. Three of the men, one of whom was Jones, were tried jointly to a jury, which was instructed on the felony murder rule. There was evidence that some of the defendants, including Jones, did not intend to shoot or kill anyone. In May 1980, the jury found Jones and his two co-defendants guilty of murder, assault with a deadly weapon, burglary and attempted robbery, all with arming allegations, and each was sentenced to 25 years to life. In January 2019, Jones filed a petition in Alameda County Superior Court under section 1170.95. He alleged that, although he was convicted of first degree murder, he was not the actual killer, did not intentionally aid and abet the murder, was not a major participant in the underlying felony and did not act with reckless indifference to human life, and that the murder victim was not a peace officer engaged in his or her duties. The trial court appointed counsel and ordered the district attorney to respond to the petition. The prosecutor subsequently argued, based in part on the unpublished opinion of this court affirming the 1980 judgment and in part on transcripts of the trial,2 that the facts showed Jones was a major participant acting with reckless disregard to human life. At the initial hearing on Jones’s petition, the trial court found, based on facts derived from trial transcripts and the appellate opinion, that Jones was “a major participant who acted with [reckless indifference to human life]” and