Filed 3/23/22 P. v. Amsbaugh 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
| THE PEOPLE,
Plaintiff and Respondent,
v.
BRETT STEPHEN AMSBAUGH,
Defendant and Appellant.
|
G060194
(Super. Ct. No. 09SF0394)
O P I N I O N |
Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded with directions.
Thomas Owen, 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, Michael Pulos, Lynne G. McGinnis, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
In 2021, defendant Brett Stephen Amsbaugh filed a Penal Code section 1170.95 petition.[1] The trial court denied the petition because Amsbaugh was convicted of two counts of attempted murder. The Legislature recently amended section 1170.95 to include attempted murder convictions.
Thus, we are reversing the trial court’s order denying Amsbaugh’s section 1170.95 petition and remanding with directions.
I
PROCEDURAL BACKGROUND AND DISCUSSION
In 2011, a jury found Amsbaugh guilty of two counts of attempted murder, related crimes, and sentencing enhancements.
In 2018, the Legislature limited the scope of the felony-murder rule and eliminated accomplice liability under the natural and probable consequences doctrine. The Legislature also permitted eligible defendants convicted of murder under a now invalid theory to petition the trial court to vacate their prior murder convictions and be resentenced. (§ 1170.95, added by Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.)
On April 6, 2021, Amsbaugh filed a section 1170.95 petition seeking to vacate his attempted murder convictions and to be resentenced. Amsbaugh requested the appointment of counsel. The trial court summarily denied the petition without appointing counsel; the court found that Amsbaugh was not convicted of murder. Amsbaugh filed a notice of appeal.
On July 26, 2021, the California Supreme Court filed an opinion interpreting section 1170.95. (People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).) Generally, the Court held if a petitioner’s section 1170.95 is facially sufficient, the trial court must appoint counsel, receive further briefing, review the record of conviction, and determine if the petitioner has made a prima facie showing under the statute. (Lewis, at pp. 959-960.) If so, the court must ordinarily issue an order to show cause (OSC) and then conduct an evidentiary hearing. (§ 1170.95, subd. (c).)
On August 3, 2021, Amsbaugh filed a related petition for writ of habeas corpus challenging his underlying attempted murder convictions (G060550).
Effective January 1, 2022, the Legislature amended section 1170.95 to include convictions for attempted murder. (Sen. Bill No. 775 (2021-2022 Reg. Sess.); Stats. 2021, ch. 551, § 2.) The amendment to section 1170.95 is ameliorative in nature; therefore, it applies retroactively to Amsbaugh’s appeal. (See In re Estrada (1965) 63 Cal.2d 740, 744-745; see also People v. Frahs (2020) 9 Cal.5th 618, 627-628.)
Thus, we reverse the trial court’s denial of Amsbaugh’s section 1170.95 petition. On remand, we direct the court to appoint counsel, to reconsider Amsbaugh’s section 1170.95 petition in the first instance (at the prima facie stage), and to issue an OSC and conduct a hearing if needed. Further, because the trial court’s ruling on the section 1170.95 petition on remand could render Amsbaugh’s related petition for a writ of habeas corpus moot, we are dismissing it without prejudice (G060550).
In a supplemental brief, the Attorney General argues this court should affirm the denial of the section 1170.95 petition as to one of the attempted murder counts because the jury found that Amsbaugh inflicted great bodily injury as to one of the attempted murder victims. (§ 12022.7, subd. (a).)
However, it is not our role as an appellate court to evaluate a section 1170.95 petition in the first instance (at the prima facie stage). Because this issue has never been litigated on the merits in the trial court, we have no ruling to review. (See Sanborn v. Pacific Mutual Life Ins. Co . (1940) 42 Cal.App.2d 99, 104-105 [“An appellate court is a reviewing court, and . . . not a trial court or court of first instance”].)
II
DISPOSITION
The trial court’s order denying Amsbaugh’s section 1170.95 petition is reversed. On remand, the court is directed to appoint counsel, to reconsider the petition (at the prima facie stage), and to conduct further proceedings as necessary.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] Further undesignated statutory references are to the Penal Code.
