Filed 6/1/22 P. v. Chinchilla CA4/3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Kimberly Menninger, Judge. Reversed and remanded. Request for Judicial Notice denied.

Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Daniel Rogers and Julie L. Garland, Senior Assistant Attorneys General, A. Natasha Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

Byron Christopher Chinchilla appeals from the trial court’s order denying his Penal Code[1] section 1170.95 petition. Chinchilla argues section 1170.95 provides relief for those convicted of attempted murder and he is entitled to a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 (Franklin).

We filed an opinion affirming the trial court’s denial of Chinchilla’s petition. After our Supreme Court granted review and held the matter, the court transferred the matter with directions to vacate our decision and reconsider the cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551) (SB 775). The parties filed supplemental briefs on the effect of SB 775 on this appeal.

As we explain below, we must remand the matter for the trial court to consider in the first instance whether Chinchilla is entitled to relief under the recently enacted SB 775. His other contention has no merit. We reverse the postjudgment order and remand for further proceedings.

FACTS

The facts of the offenses can be found in People v. Chinchilla et al. (Dec. 27, 2012, G045111) [nonpub. opn.] (Chinchilla I). As relevant here, forensic evidence demonstrated 19-year-old Chinchilla was not the shooter; his codefendant was the shooter. (Ibid.) The trial court instructed the jury on the natural and probable consequence doctrine. (Ibid.)

The jury convicted Chinchilla of four counts of willful, premeditated, and deliberate attempted murder, and numerous other offenses, including street terrorism, and found true criminal street gang and vicarious firearm enhancements. (Chinchilla I, supra, G045111.) The trial court sentenced Chinchilla to prison for four consecutive life terms with the possibility of parole plus 80 years. (Ibid.) In Chinchilla I, supra, G045111, we affirmed in part, reversed in part, and remanded for resentencing.

The trial court resentenced Chinchilla, vacating enhancement sentences and vacating, imposing, and staying a sentence on the street terrorism conviction. (People v. Chinchilla (Nov. 7, 2013, G048245) [nonpub. opn.] (Chinchilla II).) We affirmed the judgment in Chinchilla II, supra, G048425.

Over five years later, pursuant to the Legislature’s amendments to the Penal Code in Senate Bill No. 1437 (SB 1437), Chinchilla filed a petition seeking to vacate his attempted murder convictions pursuant to section 1170.95. The trial court denied the

petition, ruling the following: “The petition does not set forth a prima facie case for

relief under the statute. A review of court records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder or defendant’s murder conviction(s) is not based on felony-murder or on a natural and probable consequences theory of vicarious liability for aiders and abettors.”

This court affirmed the denial of Chinchilla’s petition because at the time attempted murder was not an eligible offense for relief under section 1170.95. (People v. Chinchilla (Jan. 9, 2020, G057448) [nonpub. opn.].) After our Supreme Court granted review and held the matter,[2] it transferred the case back to this court to vacate our prior decision and determine whether Chinchilla is entitled to relief pursuant to SB 775.

DISCUSSION

I. Section 1170.95

Senate Bill No. 1437 (Stats. 2018, ch. 1015) (SB 1437) amended sections 188 and 189, effective January 1, 2019, to eliminate natural and probable consequences liability for murder, and to limit the scope of the felony murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) Under sections 188 and 189, as amended, murder liability can no longer be imposed on a person who was not the actual killer, who did not act with the intent to kill, or who was not a major participant in the underlying felony who acted with reckless indifference to human life. (Lewis, supra, 11 Cal.5th at

p. 959.) SB 1437 also added section 1170.95 which, as originally enacted, set forth a procedure whereby a “person convicted of felony murder or murder under a natural and probable consequences theory” could petition for resentencing relief. (§ 1170.95, subd. (a).)

SB 775, effective January 1, 2022, amended section 1170.95, subdivision (a), to expand the individuals entitled to petition for resentencing. (Stats. 2021, ch. 551,

§ 1, subd. (a).) Subdivision (a) now expressly permits individuals convicted of attempted murder or manslaughter under a natural and probable consequences theory to file a petition for resentencing relief. The amendment to section 1170.95 is ameliorative in nature, and therefore applies retroactively to Chinchilla’s appeal. (In re Estrada (1965) 63 Cal.2d 740, 744-745.)

Chinchilla argues the trial court erred by failing to appoint counsel and requests we reverse and remand for the court to conduct a new prima facie hearing. The Attorney General concedes the court erred by failing to appoint counsel but contends the error was harmless because the jury concluded he acted with premeditation and deliberation. We agree with Chinchilla the matter must be reversed and remanded.

Generally, our role as an appellate court is to review issues that have first been litigated in the trial court. Chinchilla’s eligibility for relief under section 1170.95—as to his attempted murder conviction—has never been litigated on the merits. Therefore, we reverse the trial court’s denial of Chinchilla’s section 1170.95 petition as to the attempted murder conviction. On remand, we direct the court to appoint counsel, receive briefing from the parties, and to consider Chinchilla’s petition to vacate his attempted murder conviction at the prima facie stage. (See Lewis, supra, 11 Cal.5th at p. 971.) Because of our conclusion, we deny the Attorney General’s request we take judicial notice of the records in Chinchilla I, supra, G045111.

II. Franklin Hearing

“A youth offender parole hearing is a hearing by the Board of Parole Hearings for the purpose of reviewing the parole suitability of any prisoner who was

25 years of age or younger . . . at the time of his or her controlling offense.” (§ 3051, subd. (a)(1).) “[T]he board, in reviewing a prisoner’s suitability for parole . . . shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.” (§ 4801, subd. (c).)

In Franklin, supra, 63 Cal.4th at page 268, defendant was 16 years old when he committed murder and the trial court was statutorily required to sentence him to two consecutive sentences of 25 years to life. The court sentenced defendant before the Legislature enacted Senate Bill No. 260 (SB 260), which became effective January 1, 2014, and added section 3051 and section 4801, subdivision (c). (Id. at pp. 268, 276.) The Franklin court determined it was not clear if defendant had sufficient opportunity at sentencing to “make an accurate record of the juvenile offender’s characteristics and circumstances at the time of the offense” to enable the Board to “properly discharge its obligation to ‘give great weight to’ youth-related factors [citation].” (Id. at p. 284.) The court remanded the case to the trial court for a determination whether defendant had an opportunity to make this record. (Id. at pp. 286-287)

Here, Chinchilla was 19 years old at the time of the offenses. The trial court sentenced him to prison before the Legislature enacted SB 260 and our Supreme Court filed its decision in In re Cook (2019) 7 Cal.5th 439 (Cook).

In Cook, supra, 7 Cal.5th at page 458, the court stated: “For inmates like [defendant] who seek to preserve evidence following a final judgment, the proper avenue is to file a motion in superior court under the original caption and case number, citing the authority of section 1203.01 and today’s decision. The motion should establish the inmate’s entitlement to a youth offender parole hearing and indicate when such hearing is anticipated to take place, or if one or more hearings have already occurred.” (See People v. Howard (2021) 74 Cal.App.5th 141, 150; People v. Lipptrapp (2021) 59 Cal.App.5th 886, 892-893.) On remand, Chinchilla may file a motion for a Franklin hearing pursuant to section 1203.01 and Cook.

DISPOSITION

The postjudgment order is reversed. The request for judicial notice is denied.

O’LEARY, P. J.

WE CONCUR:

MOORE, J.

MARKS, J.*

*Judge of the Orange County Superior Court, 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.

[2] People v. Chinchilla (Jan. 9, 2020, G057448) [nonpub. opn.], review granted March 18, 2020, S260387.