Filed 3/11/22 P. v. Chavez CA2/5

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, John A. Torribio, Judge. Reversed and remanded.

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.

Years ago, a jury convicted defendant Elizabeth Chavez (defendant) on attempted murder and robbery charges for her participation in armed robberies of a pawn shop and a jewelry store. (People v. Chavez (May 18, 2016, B259908 [nonpub. opn.].) More recently, she filed a Penal Code section 1170.95 petition for resentencing in the trial court.[1] The trial court denied the petition, and we initially affirmed because the terms of section 1170.95 as they existed at the time permitted relief only for those convicted of murder, not attempted murder.

After our disposition of defendant’s appeal, however, the Legislature passed and the Governor signed Senate Bill No. 775 (2020-2021 Reg. Sess.) (SB 775), which became effective on January 1, 2022. The amendments SB 775 makes to section 1170.95 “[c]larif[y] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.” (Stats. 2021, ch. 551, § 1, subd. (a).) In response to defendant’s petition for review of our opinion resolving her appeal, our Supreme Court transferred this cause back to us with directions to vacate our decision and reconsider the matter in light of SB 775.

We vacated our earlier opinion as instructed and solicited supplemental briefing from the parties. Defendant argues enactment of SB 775 renders this appeal “moot” and asks us to remand the matter “for further proceedings pursuant to . . . section 1170.95, subdivision (c).” The Attorney General did not file a supplemental brief. We agree with defendant that reversal of the trial court’s order summarily denying defendant’s section 1170.95 petition is required in light of the change in law.

DISPOSITION

The order denying defendant’s section 1170.95 petition is reversed and the cause is remanded with directions to appoint counsel for defendant, to permit the filing of an amended section 1170.95 petition if counsel so chooses, and to conduct further proceedings consistent with section 1170.95, subdivision (c).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

MOOR, J.

[1] Undesignated statutory references that follow are to the Penal Code.