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Name: People v. Hill (2024) 100 Cal.App.5th 1055
Case #: B322561
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 03/25/2024

The application of a kidnapping-felony-murder theory to defendants’ Penal Code section 1172.6 petitions did not violate ex post facto principles. In 1990, defendants Hill and Jenkins were involved in a kidnapping and robbery, in which Hill shot at one victim and another victim was killed. Hill and Jenkins were each convicted of first degree murder and attempted premediated murder. In 2019, defendants each filed a petition for resentencing pursuant to section 1172.6. After evidentiary hearings, the superior courts found each guilty beyond a reasonable doubt of the convictions, and denied relief. Defendants appealed. Held: Affirmed. At the time of the kidnappings and murder on February 22, 1990, kidnapping was not an underlying felony for first degree felony murder liability. In June 1990, section 189 was amended to add kidnapping as an enumerated offense on which a conviction for felony murder could be based. Defendants argued that the denial of their section 1172.6 petitions in reliance on a theory of felony murder based on the kidnapping violated ex post facto principles. The court disagreed. Section 1172.6 does not implicate ex post facto principles because it does not apply any new law retroactively to make formerly innocent conduct criminal. It does not (1) impose punishment for an act which was not punishable at the time it was committed; (2) aggravate a crime or make it greater than it was when committed; (3) impose a greater punishment for a crime than when the crime was committed; or (4) alter the legal rules of evidence in order to convict the offender. Rather, section 1172.6 is an act of legislative lenity which looks to whether a defendant could be convicted under current law despite the elimination of certain theories of murder. [Editor’s Note: The Court of Appeal also held that substantial evidence supported the superior court’s determination that Hill was guilty of attempted murder, as well as the courts’ findings that Hill and Jenkins were guilty of felony murder as major participants in the kidnapping who acted with reckless indifference to human life.]