Defendant who was convicted of felony murder before the effective date of Senate Bill No. 1437, but not sentenced until after the law took effect, was entitled to the retroactive benefits of changes in the murder law on direct appeal. Thomas was convicted of murder and other offenses based on a gang-related shooting. Prior to sentencing, he made a motion for a new trial based on SB 1437’s changes to the murder law. His motion was denied. On appeal, he argued the motion was wrongly denied because SB 1437 took effect prior to his sentencing and rendered his felony murder conviction invalid. Held: Reversed. SB 1437 amended Penal Code sections 188 and 189, limiting murder liability to those principals who act with malice aforethought, and narrowed the liability for first-degree felony murder to: (1) the actual killer, or (2) the aider and abettor who intended to kill, or who was a major participant and acted with reckless indifference to human life. It added Penal Code section 1170.95, which contains a resentencing procedure for defendants convicted of murder based on an invalid theory. Cases have held this is the exclusive remedy for retroactive relief for nonfinal judgments. (People v. Gentile (2020) 10 Cal.5th 830.) However, cases do not address use of the procedure by persons convicted before SB 1437 took effect whose sentencing occurs after its effective date. Based on the language of the statute, the petition must be filed in the sentencing court. This reflects that section 1170.95 is solely a post-judgment remedy and not applicable to defendants like Thomas, who were not yet sentenced on the effective date of the law. Thomas was entitled to seek relief by filing a new trial motion challenging the legality of his conviction under the new law.
Misconduct by counsel for a codefendant can violate a defendant’s Fourteenth Amendment right to due process. Prosecutorial misconduct under federal law is based on alleged violations of the Fourteenth Amendment. While the Fourteenth Amendment requires state action, there is U.S. Supreme Court precedent finding state action based on a private actor’s conduct in a civil trial. A criminal jury trial is initiated by state action. “When counsel for a codefendant attacks another defendant, such conduct may inadvertently assist the prosecutor’s case against such a defendant.” Codefendant’s counsel cannot be permitted to trounce on the rights of the other defendant. Further, a trial judge must control all proceedings in the court to ensure a fair trial for all defendants. Where a codefendant’s attorney shifts blame to a particular defendant through misconduct at trial, this raises serious questions as to the fairness of the proceedings. Therefore, “in the context of a multiple defendant criminal trial brought by the state, misconduct by a codefendant’s counsel constitutes state action for purposes of the Fourteenth Amendment.” Applying the rules for assessing prosecutorial misconduct under federal law, counsel for a codefendant commits reversible misconduct only if the conduct infects the trial with such unfairness as to make the resulting conviction a denial of due process. Thomas argued that codefendant’s counsel committed numerous acts of misconduct, thereby denying him a fair trial. However, in most of the cited instances, Thomas forfeited the issue by failing to make a timely and specific objection. In any event, the alleged misconduct was harmless as to Thomas and his counsel was not prejudicially ineffective for failing to object.