The Supreme Court yesterday denied review in People v. Powell, where a Third District Court of Appeal unpublished opinion affirmed the denial of a domestic violence victim’s petition for resentencing after she had pleaded guilty to first degree murder in 1998. There was no recorded dissent from the review denial, but three justices issued two separate concurring statements. (The separate statements are attached to the reposted appellate court opinion.)

The murder was committed by the defendant’s boyfriend during a robbery the defendant planned. She sought resentencing under 2018 legislation — Senate Bill 1437 — that narrowed murder liability under the felony murder theory and eliminated it under the natural and probable consequences doctrine. (People v. Strong (2022) 13 Cal.5th 698 (see here); People v. Lewis (2021) 11 Cal.5th 952 (see here).)

The superior court ruled defendant couldn’t be resentenced because, under the statute, she “was a major participant in the underlying felony and acted with reckless indifference to human life.” The Third District found substantial evidence supported the ruling. It also rejected the defendant’s argument that the superior court didn’t properly consider to be mitigating evidence (1) testimony that the defendant’s boyfriend regularly subjected her to severe physical abuse and forced her to engage in sex work and steal and (2) testimony from an expert in intimate partner violence. The superior court instead considered the evidence to show the defendant knew her boyfriend was likely to use lethal force during the robbery.

Justice Joshua Groban — joined by Justice Goodwin Liu — wrote in a concurring statement that Supreme Court review wasn’t warranted because appellate courts shouldn’t reweigh the evidence. But he “highlight[ed] that our denial of review should not prevent consideration of petitioner’s abuse by [her boyfriend] as a potential mitigating circumstance in other contexts, including” possible resentencing recommendations by the Department of Corrections and Rehabilitation, the Board of Parole Hearings, or the district attorney, at a parole eligibility hearing, or a recommendation by the Board of Parole Hearings for gubernatorial clemency.

Justice Kelli Evans — also joined by Justice Liu — wrote she “disagree[d] that intimate partner violence evidence should be used to show that a victim of intimate partner violence knew of their cohort’s propensity to use lethal violence based on their personal experience of being abused” and she said “there remains a need for additional guidance on this issue — if not from the courts, from the Legislature.” Justice Evans nonetheless concurred in denying review “[b]ecause it is unclear how much weight the instant trial court gave to its consideration of the intimate partner violence evidence in supporting its finding of reckless indifference, and given the deferential standard of review on appeal.”

In 2015, Justice Liu revived a long-dormant practice of issuing separate statements when the court denies review, and he and other justices have done so on numerous occasions since then.