Tuesday, September 22, 2020
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Mother Who Struck Baby, Who Died, Might Get New Sentence
Court of Appeal Countermands Judge Who Found SB 1437 Relief Unavailable Because Woman Was the ‘Actual Killer’; Dhanidina Says It Might Have Been Boyfriend’s Blows That Were Fatal
By a MetNews Staff Writer
A woman who whacked her two-year-old son on the head with a stick, striking him five or six times on his arms and hands with the same weapon, following months of abuse of him, and who pled guilty to second degree murder, might be entitled to resentencing because, the Court of Appeal for this district said yesterday, the mother’s boyfriend also administered blows, so she might not be the “actual killer.”
In light of that prospect, the appeals court said, the petition should not have been rejected upon an initial review and, instead, counsel should have been appointed for the petitioner.
Div. Three, in an unpublished opinion by Justice Halim Dhanidina, reversed an order by Los Angeles Superior Court Judge Daviann L. Mitchell who denied a resentencing to Jennifer Zolorzano. The defendant proceeded under Penal Code §1170.95—created by SB 1437—which went into effect Jan. 1, 2019.
Not Eligible
A person convicted under the felony-murder rule or on a theory that death was the natural and probable consequence of his or her act is eligible, under specified circumstances, for a resentencing to reflect individual culpability. Zolorzano was not eligible for relief, Mitchell declared, because she was an actual killer.
Disagreeing, Dhanidina said she only might be such. Her boyfriend, Joe Hickman, also struck the baby with a stick, twice, he noted.
The toddler’s offense was not eating his noodles.
The mother rushed the child, Deshawn Zolorzano, who had stopped breathing, to a hospital, where he was pronounced dead on arrival. Then 19, she was arrested by sheriff’s deputies on Oct. 21, 2011.
Penal Code §1170.95 provides:
“The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor’s response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.”
Dhanidina found no error in Mitchell conducting an initial review without appointing counsel, but faulted her conclusion that Zolorzano was necessarily an actual killer. Reviewing the facts set forth in the probation report, he said:
“[T]wo people beat Deshawn Z. While the probation report certainly supports a conclusion that Zolorzano was the actual killer or a direct aider and abettor, it does not preclude a theory that she aided and abetted Hickman to commit a target offense the natural and probable consequence of which was murder. Thus, the probation report is insufficient to defeat Zolorzano’s initial prima facie showing.”
The Office of Attorney General argued that Zolorzano was not charged under felony-murder or natural-and-probable-consequences theory, rendering SB 1437 relief inapplicable. Dhanidina responded:
“That is true as to the felony-murder doctrine because the only felony other than murder with which Zolorzano was charged was child abuse….Child abuse cannot be the basis for second degree felony murder….However, as murder was charged generically, the charging document did not preclude the People from proceeding under a natural and probable consequences theory of aiding and abetting. Thus, the information is similarly insufficient to defeat Zolorzano’s initial prima facie showing.”
The case is People v. Zolorzano, B295931.
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