By a MetNews Staff Writer
The finding of a “lost” unpublished 1979 Court of Appeal opinion in a case has resulted in the prospect that a man found guilty of two counts of first-degree murder will be able to establish that he was convicted under the ancient felony-murder rule, which has been largely legislatively abrogated in California, and is entitled to a resentencing under ameliorative legislation.
Div. One of the Fourth District Court of Appeal on Thursday, in an opinion by Acting Presiding Justice Richard D. Huffman that was not certified for publication, reversed an order by San Diego Superior Court Judge Peter C. Deddeh denying the resentencing petition of Ramon Del Rio, who was convicted in 1978 and sentenced to seven years to life in prison with the possibility of parole. Deddeh had before him the probation officer’s report and the transcript of Del Rio’s sentencing hearing—which Rio’s appellate lawyer, Daniel J. Kessler, branded as hearsay—but not the Court of Appeal’s opinion affirming the conviction.
The parties could not locate a copy of the opinion, nor could the San Diego Superior Court. Issuance of the opinion, in hard-copy form, pre-dated the Judicial Council’s posting of electronic versions of unpublished opinions on its website.
Trial Judge’s Conclusion
Based on available information, Deddeh concluded that Del Rio commissioned the slaying and robbery of the victims and was, under Penal Code §1170.95, a direct aider and abettor, ineligible for relief under that statute, as amended by SB 1437, which became effective Jan. 1, 2019.
The legislation redefines the crime of murder and provides, in §1170.95, for a procedure for those convicted under the prior law to gain a resentencing if they do not fall under the confines of the present law. Penal Code §197 now includes in the definition of a murder one who, even if not “the actual killer,” had “with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree” or “was a major participant in the underlying felony and acted with reckless indifference to human life.”
Div. One’s staff succeeded in finding a copy of the opinion.
“The materials submitted to the trial court indicate Del Rio may well be a direct aider and abettor who acted with intent to kill or reckless indifference to human life, but that cannot be determined from the record at the prima facie stage of the review process.
“Our prior opinion indicates Del Rio was tried on a felony murder theory. The People did not argue he was the actual killer, and our opinion does not specify his exact role in these crimes. As Del Rio contends, and the Attorney General agrees, such determination should await an evidentiary hearing where facts can be determined, credibility decisions made, and the evidence weighed which cannot be done at the initial stage of evaluating this petition. After review of the record, we accept the Attorney General’s concession and will reverse the order denying the petition.”
The case is People v. Del Rio, D078225.
On June 9, 2015, Del Rio was denied parole by the Board of Parole Hearings which found that he “does pose an unreasonable risk of danger or threat to public safety and is not suitable for parole.” His challenge to that determination, in the form of a habeas corpus petition, filed in the U.S. District Court for the Southern District of California failed, with a determination that habeas relief does not lie in the relevant context.
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