Filed 3/4/22 P. v. Hawkins CA4/2

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed.

Siri Shetty, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Daniel B. Rogers, Acting Assistant Attorney General, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Defendant and appellant Jeremy Wayne Hawkins appeals from the November 8, 2019 order of the superior court, dismissing his petition for resentencing on his 1998 conviction for attempted premeditated murder. (Pen. Code,[1] § 1170.95) In an unpublished decision, we affirmed the order dismissing defendant’s petition on the ground that persons convicted of attempted murder were not entitled to relief under section 1170.95. (People v. Hawkins (Mar. 23, 2021, E074651) [nonpub. opn.].)

The Supreme Court granted review on June 9, 2021, and while review was pending, the Legislature enacted and the Governor signed Senate Bill No. 775 into law. (Senate Bill 775) (Stats. 2021, ch. 551, § 2.). Senate Bill 775 amended section 1170.95 to clarify, among other things, that persons convicted of attempted murder under the natural and probable consequences doctrine are eligible for resentencing under the statute. (Id. at §§ 1-2.)

On December 29, 2021, the Supreme Court transferred the matter back to this court with directions to vacate our opinion and reconsider the cause in light of Senate Bill 775. We vacated our opinion and directed the parties to file supplemental briefs addressing the effect of Senate Bill 775.

In their supplemental briefs, the parties agree that the 2019 order dismissing defendant’s petition must be reversed and the matter remanded with directions to conduct further proceedings under section 1170.95. We agree that this is the appropriate disposition of this appeal.

PROCEDURAL BACKGROUND

Defendant was charged by information with attempted premeditated murder (§§ 664, 187, subd. (a), count 1) and burglary (§ 459, count 2). As to count 1, the information alleged that he personally used a deadly weapon (former § 12022, subd. (b), § 1192.7, subd. (c)(23)) and personally inflicted great bodily injury (former § 12022.7, subd. (a), § 1192.7, subd. (c)(8)).

On July 9, 1998, defendant entered a plea agreement and pled guilty to count 1. On August 6, 1998, a trial court sentenced him to life in state prison with the possibility of parole and dismissed the remaining count and allegations in accordance with the plea agreement.

On May 6, 2019, defendant filed a petition for resentencing under section 1170.95, in propria persona, alleging that he pled guilty to attempted first degree murder because he “fear[ed] that he might be convicted after trial [pursuant] to the Felony First Degree/Botched murder rule and or the natural and probable consequences doctrine.” He also alleged that he could not now be convicted of attempted first degree murder because of the amendments to sections 188 and 189. He requested appointment of counsel. The People moved to strike defendant’s petition, arguing that Senate Bill No. 1437 is unconstitutional.

On November 8, 2019, the court held a hearing on the petition. The People argued that the petition should be dismissed because it involved attempted murder. Defense counsel objected for the record. The court stated that People v. Munoz[2] and People v. Lopez[3] “stand for the proposition that attempt murder does not work under the statute” and dismissed the petition.

DISCUSSION

Senate Bill No. 1437 Applies to Attempted Murder

Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 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); Stats. 2018, ch. 1015, § 1, subd. (f).) 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, at p. 959.)

Senate Bill 1437 also added section 1170.95 to the Penal Code. (Stats. 2018, ch. 1015, § 4.) In its original form, section 1170.95 allowed persons convicted of murder under the former law, but who could not be convicted of murder under the amended law, to petition the sentencing court to vacate their murder convictions and to be resentenced on any remaining convictions. (People v. Montes (2021) 71 Cal.App.5th 1001, 1005.)

Senate Bill 775 “clarifies” that “persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] 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).) To this end, Senate Bill 775 amended section 1170.95, effective January 1, 2022, to provide: “A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a), italics added; as amended by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)

Defendant argues that the amendments made to section 1170.95 are ameliorative, apply retroactively to his petition, and we should reverse and remand the matter for the trial court to reconsider his petition. The People agree, stating that this court should reverse the trial court’s order and remand the matter for the trial court to hold further prima facie proceedings under section 1170.95, subdivision (c). We agree that this is the appropriate disposition of this appeal. We will therefore reverse the court’s order denying defendant’s section 1170.95 petition on the basis that he was convicted of attempted murder. We express no opinion regarding whether defendant has established a prima facie case for relief.

DISPOSITION

The order denying defendant’s resentencing petition is reversed. The matter is remanded for the trial court to conduct all proceedings required under section 1170.95.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.

[1] All further statutory references will be to the Penal Code unless otherwise noted.

[2] The court was apparently referring to People v. Munoz (2019) 39 Cal.App.5th 738 (Munoz), review granted November 26, 2019, S258234, and cause transferred to the Court of Appeal, Second Appellate District, Division Three with directions to vacate its decision and reconsider in light of Senate Bill 775.

[3] The court was apparently referring to People v. Lopez (2019) 38 Cal.App.5th 1087 (Lopez), review granted November 13, 2019, S258175, and cause transferred to the Court of Appeal, Second Appellate District, Division Seven with directions to vacate its decision and reconsider in light of Senate Bill 775.