Filed 4/21/17 In re Collier CA15
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE


In re TREMAYNE COLLIER,
on Habeas Corpus. A150054

(San Francisco County
Super. Ct. No. 18212502)


THE COURT:*
A jury convicted petitioner Tremayne Collier of first degree murder and two counts of robbery, and found arming allegations to be true. (Pen. Code, §§ 187, 212.5, subd. (c), 12022, subd. (a)(1).) The jury found a robbery special circumstance allegation not to be true. (§ 190.2, subd. (a)(17)(A).) With priors, petitioner was sentenced to an aggregate term of 13 years plus 51 years to life. We affirmed the judgment on appeal, and the Supreme Court subsequently denied review. (People v. Collier (Aug. 30, 2006, A108751) [nonpub. opn.], review den. Dec. 13, 2006, S147017.)
In the present habeas corpus proceeding, petitioner contends his murder conviction must be reversed because he was tried and convicted on a natural and probable consequences theory, and the Supreme Court in People v. Chiu (2014) 59 Cal.4th 155 (Chiu) has since repudiated the use of that doctrine as a basis for first degree premeditated murder liability. Petitioner correctly observes that the rule articulated in Chiu, which arose in the context of aider and abettor liability, was extended to uncharged conspiracy liability in People v. Rivera (2015) 234 Cal.App.4th 1350, 1356–1357. Petitioner further asserts the Chiu error in his case is not harmless, since it cannot be concluded beyond a reasonable doubt that the verdict was based on a legally valid theory given the jury’s rejection of the robbery special circumstance allegation. (Chiu, supra, at p. 167.)
The Attorney General concedes petitioner’s claim is properly presented on habeas, as Chiu has been held to be retroactive and the law has changed in petitioner’s favor following his conviction. (In re Lopez (2016) 246 Cal.App.4th 350, 357–360; In re Brigham (2016) 3 Cal.App.5th 318, 327, fn. 4; In re Coley (2012) 55 Cal.4th 524, 537.) The Attorney General further concedes Chiu applies to petitioner’s case, since “the trial court instructed the jury on three alternative and complete theories of first degree murder,” including felony murder, but “it was error to instruct on natural and probable consequences in relation to both aiding and abetting[,] and conspiracy.” Additionally, the Attorney General agrees it cannot be concluded beyond a reasonable doubt that the jury based its verdict on a felony murder theory, since the jury did not find the robbery special circumstance to be true.
We agree with the parties that Chiu error occurred in petitioner’s case, and that it cannot be found harmless. The remedy outlined in Chiu is a reversal of the first degree murder conviction, “allowing the People to accept a reduction of the conviction to second degree murder or to retry the greater offense.” (Chiu, supra, 59 Cal.4th at p. 168.) The parties agree that this is the appropriate remedy in this case.
The Attorney General does not oppose the granting of relief on the foregoing claim, and the parties have waived issuance of an order to show cause, the filing of a return and traverse, and oral argument. (See People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.)
The judgment as to the first degree murder conviction is vacated, and the matter is remanded to the superior court with directions to allow the People to accept a reduction of the conviction to second degree murder or to retry the greater offense. Following the People’s election and at the conclusion of further proceedings, the superior court is directed to amend the abstract of judgment accordingly, and to send a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation. This decision shall be final as to this court 10 court days after its filing. (Cal. Rules of Court, rule 8.387(b)(3)(A).)