Filed 2/24/22 P. v. Howard 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant, Isaiah Davilon Lee Howard, filed a petition for resentencing pursuant to Penal Code[1] section 1170.95 (Stats. 2018, ch. 1015, § 4), which the trial court dismissed. On appeal, defendant contends the court erred in dismissing his petition on the grounds that section 1170.95 did not apply to those convicted of attempted murder. On April 13, 2021, we issued an opinion affirming the court’s order.

On December 29, 2021, the California Supreme Court directed us to vacate our opinion and reconsider the cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551). On January 10, 2022, we vacated our opinion and provided that any party could file a supplemental brief within 15 days. Neither party has filed a brief in the time allotted. Because section 1170.95, as amended by Senate Bill No. 775, provides resentencing relief for individuals convicted of attempted murder under certain circumstances, we will reverse the trial court’s order and remand the matter for the court to reconsider defendant’s petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant willfully and unlawfully, with malice aforethought, attempted to murder the victim for the benefit of, at the direction of, and in association with a criminal street gang. The People charged defendant by information with attempted murder (§§ 664, 187, subd. (a), count 1), carrying a loaded firearm in public that was not registered to defendant (§ 25850, subd. (c)(6), count 2), and being a prohibited person in possession of a firearm (§ 29820, count 3). The People additionally alleged that in the commission of the count 1 offense, a principal had personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d), (e)) and that defendant had committed the offense for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).

Pursuant to a negotiated agreement, defendant pled guilty to attempted murder (§§ 664, 187, subd. (a)), without premeditation and deliberation, and admitted the offense was committed for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).[2] In return, the remaining counts and allegation were dismissed, and the court sentenced defendant to a determinate term of 17 years of imprisonment.

Defendant filed a petition for resentencing pursuant to section 1170.95. At the hearing on defendant’s petition, the People moved to dismiss because defendant had been convicted of attempted murder, not murder. The court dismissed the petition.

II. DISCUSSION

Prior to the enactment of Senate Bill No. 775, the California Courts of Appeal were uniform in concluding that resentencing relief under section 1170.95 was limited to murder convictions and did not extend to persons convicted of manslaughter or attempted murder. (See, e.g., People v. Turner (2020) 45 Cal.App.5th 428, 435-436.) Thus, one of the purposes of Senate Bill No. 775 was to clarify that section 1170.95 is applicable to manslaughter and attempted murder convictions. (See Stats. 2021, ch. 551, § 1, subd. (a), [“[T]his legislation . . . [¶] (a) [c]larifies 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.”].)

A defendant generally is entitled to benefit from amendments to criminal statutes that become effective while the case is still pending. (People v. Vieira (2005) 35 Cal.4th 264, 305.) A judgment is not final on appeal “until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.” (People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.) Because the Legislature did not pass these amendments as urgency legislation, they became effective on January 1, 2022. (See Cal. Const., art. IV, § 8, subd. (c)(1); see People v. Camba (1996) 50 Cal.App.4th 857, 862.) As defendant’s appeal from the denial of his resentencing petition was not final on this date, he is entitled to benefit from this remedial legislation. (In re Pedro T. (1994) 8 Cal.4th 1041, 1046; Vieira, at p. 305.) Thus, we will reverse the trial court’s order and remand the matter for the court to reconsider defendant’s petition.

On remand, the trial court must determine whether defendant has stated a prima facie case for relief under section 1170.95 as to his attempted murder conviction. (§ 1170.95, subd. (c).) If the court finds a prima facie case is stated, it shall issue an order to show cause and hold a hearing “to determine whether to vacate the . . . attempted murder . . . conviction and to recall the sentence and resentence [defendant] on any remaining counts in the same manner as if [he] had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (§ 1170.95 subd. (d)(1).)

III. DISPOSITION

Our previous opinion having been vacated, we reverse the superior court’s order denying defendant’s petition for resentencing under section 1170.95 as to the attempted murder conviction, and remand the matter to the trial court for further proceedings consistent with this opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.

[1] All further statutory references are to the Penal Code.

[2] As part of the agreement, defendant also pled guilty in three misdemeanor cases.