## Facts

- In 1993, Derrick Dante Swanson and an accomplice robbed multiple victims at gunpoint at a Long Beach gas station, forcing them into a storage room and taking property.
- Swanson threatened and physically assaulted a pregnant victim while demanding access to a safe.
- As Swanson and the accomplice fled, Swanson fired a shot toward two victims, prompting the victims to arm themselves and pursue.
- During an exchange of gunfire outside, a victim shot and killed Swanson’s accomplice.
- Swanson was convicted of first-degree murder under the provocative act doctrine based on his role in initiating lethal gunfire and provoking the fatal response.
- After enactment of Senate Bill 1437 and Penal Code § 1170.95, Swanson petitioned for resentencing, arguing provocative-act murder was covered as a form of felony murder or natural-and-probable-consequences murder.
- The superior court summarily denied the petition without appointing counsel, finding Swanson categorically ineligible; Swanson appealed.

## Issues

1. Whether a defendant convicted of first-degree murder under the provocative act doctrine is eligible for resentencing under Penal Code § 1170.95 as a murder conviction “under a theory of felony murder or murder under the natural and probable consequences doctrine.”
2. Whether the trial court erred by denying a § 1170.95 petition without appointing counsel or conducting further proceedings when the petitioner could not make a prima facie showing of eligibility.

## Decision

- The Court of Appeal affirmed the order denying resentencing relief.
- The court held § 1170.95 does not apply to provocative-act murder because it is neither felony murder nor natural-and-probable-consequences murder.
- The court held the trial court could deny the petition at the initial stage without appointing counsel because the petitioner failed, as a matter of law, to make a prima facie showing of eligibility based on the record of conviction.

## Legal Principles

- Penal Code § 1170.95 provides resentencing relief only for murder convictions obtained under felony-murder or natural-and-probable-consequences theories, as identified in the statute’s text.
- Provocative-act murder is a distinct, malice-based theory requiring proof the defendant personally acted with malice and committed a life-endangering act likely to provoke a lethal response that in fact caused a killing by a third party.
- Because SB 1437 targeted murder liability imposed without personal malice (or without the narrowed felony-murder predicates), its resentencing procedure does not extend to provocative-act murder.
- A court may summarily deny a § 1170.95 petition at the initial screening stage when the record of conviction establishes ineligibility as a matter of law; under this approach, counsel need not be appointed absent a prima facie showing of statutory eligibility.

## Conclusion

The court concluded that § 1170.95 resentencing relief is unavailable for a first-degree murder conviction based on the provocative act doctrine because that doctrine requires the defendant’s own malice and is outside the statute’s enumerated theories; therefore, summary denial without appointing counsel was affirmed where the record showed categorical ineligibility.


People v. Swanson, 57 Cal. App. 5th 604, 272 Cal. Rptr. 3d 1 (Ct. App. 2020)