Filed 4/6/22 P. v. Juarez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 with directions.

David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steve Oetting, Assistant Attorney General, A. Natasha Cortina and Robin Urbanski, Deputy Attorneys General, for Plaintiff and Respondent.

In 2010, appellant Albert Julian Juarez was sentenced to 30 years in prison as part of an agreement under which he pleaded guilty to two counts of attempted murder and other crimes. When he more recently sought resentencing under Penal Code section 1170.95, the trial court denied his petition on the basis that section does not apply to the crime of attempted murder.[1] That was true at the time the trial court made its ruling in 2019. However, as of January 1, 2022, new legislation makes section 1170.95 applicable to defendants who pleaded guilty to attempted murder charges which were prosecutable under the natural and probable consequences theory of aiding and abetting. As respondent concedes, this change requires that we reverse the trial court’s denial order and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Because appellant pleaded guilty prior to trial, the record contains little information about the circumstances surrounding his crimes. As the factual basis for his plea, appellant did admit that a principal in the alleged attempted murders intentionally discharged a firearm and that he (appellant) was vicariously armed during those crimes. (§ 12022.53, subds. (b), (e).) However, there is nothing in the record showing appellant personally handled or used a firearm in committing them.

In 2019, roughly a decade into his sentence, appellant petitioned for resentencing pursuant to section 1170.95. Without appointing appellant counsel, the trial court summarily denied his petition because he was convicted of attempted murder, not murder. We affirmed the trial court’s ruling on appeal. (See People v. Juarez (June 24, 2020, G057618) [nonpub. opn.].) However, events have overtaken us. The California Supreme Court granted appellant’s petition for review and transferred the case back to us with directions to vacate our opinion and reconsider the cause in light of newly enacted Senate Bill No. 775 (Stats. 2021, ch. 551) (SB 775).

DISCUSSION

Appellant contends SB 775 compels reversal of the trial court’s denial order. Respondent agrees, and so do we.

Appellant’s underlying claim for resentencing is grounded in Senate Bill No. 1437, which narrowed the scope of vicarious liability for the crime of murder by limiting the felony murder rule and abolishing the natural and probable consequences doctrine in murder cases. (§§ 188, subd. (a)(3), 189, subd. (e).) That bill “also added section 1170.95 to the Penal Code, which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief” in the form of resentencing. (People v. Lewis (2021) 11 Cal.5th 952, 957, fn. omitted.) If, as in the present case, the defendant asks for an attorney in connection with his petition for resentencing, the trial court must grant the request and allow input from counsel before considering whether the defendant has established a prima facie case for relief. (Id. at pp. 961-970.)

As originally enacted, section 1170.95 applied only to defendants who were convicted of murder. (Former § 1170.95, subd. (a).) That was the basis of our earlier opinion. However, with the passage of SB 775, which became effective on the first day of this year, the statute was expanded to include defendants who were convicted of attempted murder under the natural and probable consequences doctrine. (§ 1170.95, subd. (a), as amended by Stats. 2021, ch. 551.) This includes defendants who accepted a plea offer in lieu of a trial at which they could have been so convicted. (Id., at subd. (a)(2).)

Respondent concedes these changes apply to appellant’s case, since the order denying his petition for resentencing is not yet final. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [an ameliorative criminal statute is generally presumed to apply to all cases that are not final when the statute becomes effective]; People v. Montes (2021) 71 Cal.App.5th 1001, 1006-1007 [applying SB 775 retroactively].)

Respondent also admits that because appellant pleaded guilty to attempted murder charges that were prosecutable under the natural and probable consequences doctrine, he may be eligible for resentencing under section 1170.95. Therefore, he is entitled to have the trial court reconsider his petition anew on the merits. We agree. Accordingly, we will reverse the trial court’s denial order and remand the matter for that purpose.

DISPOSITION

Our prior opinion in this matter, filed June 24, 2020, is hereby vacated and superseded by this opinion. The trial court’s order denying appellant’s petition for resentencing is reversed, and the matter is remanded for further proceedings. On remand, the trial court shall appoint appellant counsel and reconsider the merits of his petition pursuant to the procedures set forth in section 1170.95.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

GOETHALS, J.

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