Filed 4/6/22 P. v. Maddox CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded with directions.

Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Alan L. Amann, and Lynne E. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

In 2008, appellant Taron Maddox was sentenced to an indeterminate life term for attempted murder. When he recently sought resentencing under Penal Code section 1170.95, the trial court denied his petition on the basis that section does not apply to the crime of attempted murder.[1] That was true at the time the trial court made its ruling in 2021. However, as of January 1, 2022, new legislation makes section 1170.95 applicable to defendants who were convicted of attempted murder under the natural and probable consequences theory of aiding and abetting. As respondent concedes, this change requires that we reverse the trial court’s denial order and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant and his fellow gang members shot and wounded Miguel Perez in retaliation for an earlier incident. Because appellant supplied the gun to the shooter, he was prosecuted for attempted murder on the theory of aiding and abetting. At trial, the prosecution posited appellant either directly aided and abetted the shooter in attempting to murder Perez, and/or attempted murder was a natural and probable consequence of the lesser crime of disturbing the peace that appellant and his cohorts committed in conjunction with the shooting. Without specifying which theory it adopted, the jury convicted appellant as charged, and he was sentenced to prison for 30 years to life.

After we affirmed the judgment on appeal, appellant petitioned for resentencing under section 1170.95. Without appointing appellant counsel, the trial court summarily denied his petition because he was convicted of attempted murder, not murder. This appeal followed.

DISCUSSION

Appellant contends the trial court’s denial order must be reversed because while his appeal was pending, the Legislature amended section 1170.95 to apply to the crime of attempted murder. Respondent agrees, and so do we.

Appellant’s underlying claim for resentencing is grounded in Senate Bill No. 1437, which narrowed the scope of vicarious liability for the crime of murder by limiting the felony murder rule and abolishing the natural and probable consequences doctrine in murder cases. (§§ 188, subd. (a)(3), 189, subd. (e).) That bill “also added section 1170.95 to the Penal Code, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief” in the form of resentencing. (People v. Lewis (2021) 11 Cal.5th 952, 957, fn. omitted.) If, as in the present case, the defendant asks for an attorney in connection with his petition for resentencing, the trial court must grant the request and allow input from counsel before considering whether the defendant has established a prima facie case for relief. (Id. at pp. 961-970.)

As originally enacted, section 1170.95 applied only to defendants who were convicted of murder. (Former § 1170.95, subd. (a).) However, effective January 1, 2022, Senate Bill No. 775 expanded the statute to include defendants who were convicted of “attempted murder under the natural and probable consequences doctrine[.]” (§ 1170.95, subd. (a), as amended by Stats. 2021, ch. 551.) Respondent concedes this change applies to appellant’s case, since the order denying his petition for resentencing is not yet final. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [an ameliorative criminal statute is generally presumed to apply to all cases that are not final when the statute becomes effective]; People v. Montes (2021) 71 Cal.App.5th 1001, 1006-1007 [applying SB 775 retroactively].)

Respondent also admits that because the prosecution relied on the natural and probable consequences doctrine to secure appellant’s conviction for attempted murder, he may be eligible for resentencing under section 1170.95. Therefore, he is entitled to have the trial court reconsider his petition anew on the merits. We agree. Accordingly, we reverse the trial court’s denial order and remand the matter for that purpose.

DISPOSITION

The trial court’s order denying appellant’s petition for resentencing is reversed, and the matter is remanded for further proceedings. On remand, the trial court shall appoint appellant counsel and reconsider the merits of his petition pursuant to the procedures set forth in section 1170.95.

BEDSWORTH, ACTING P. J.

WE CONCUR:

SANCHEZ, J.

ZELON, J.*

*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All further statutory references are to the Penal Code.