Earlier this month 4/3 held that People v. Chiu (Cal. SC) is retroactive to defendants whose cases where final when that case was decided. (In re Lopez.) Chiu, of course, held that a first degree murder verdict may not be based on the natural and probable consequences (NPC) doctrine, and since that decision a slew of defendants have had their convictions reduced to second degree murder on direct appeal.
Less than two week after Lopez was decided, a second published decision, In re Johnson (1/4), agreed that a petitioner whose case was final when Chiu came down was entitled to relief. This time, though, the Attorney General did not dispute that Chiu was retroactive (Id. at p. 9, fn. 2), and the argument was over whether the defendant could demonstrate prejudice. (Id. at p. 11.) The Attorney General argued the People v. Mutch (Cal. SC) standard, which requires the defendant show the conviction was invalid as a matter of law, should apply. (Id. at pp. 9-10.) This is the standard the Lopez court applied when it granted relief. (Lopez, supra, at pp. 9-11.) Mr. Johnson, however, argued the Chapman v. California (U.S. SC) harmless beyond a reasonable doubt standard applies, which is the standard the Courts of Appeal used in In re Lucero (3rd Dist.) and In re Hansen (4/3) when defendants sought relief based on retroactive application of the California Supreme Court’s decision in People v. Chun. Chun reconsidered the scope of the felony murder rule in a way which made certain defendants ineligible for a second degree murder conviction. (See Johnson, supra, at pp. 10-11.)
Johnson, reaching the opposite conclusion as Lopez, saw Chiu as representing a change in the law rather than merely a recognition of what the law already was (see Lopez, supra, at pp. 9-10), and for this reason found Lucero and Hansen more applicable than Mutch. (Johnson, supra, at p. 12.) The Johnson court also saw the error as going to the reliability of the conviction and the question of the defendant’s guilt or innocence for first degree murder, whereas Mutch was only concerned with whether there was substantial evidence for the conviction. (Id. at p. 12.) For these reasons, Johnson explained, when a defendant is convicted of first degree murder and it cannot be determined whether or not the jury relied on an NPC theory, the conviction must be reversed. (Id. at pp. 13-14.)
Johnson therefore both reinforces Lopez’s holding that Chiu is retroactive while creating a split about how to determine whether a habeas defendant is entitled to relief. Johnson lowers the bar for relief significantly from where Lopez set it, but will almost certainly not be the last word on the issue as many defendants remain who are potentially affected by the Chiu decision.