Filed 4/4/22 P. v. Mackey CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. Bryan F. Foster, Judge. Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Senior Assistant Attorney General, Steve Oetting and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Tommy Mackey appeals the San Bernardino County Superior Court’s summary denial of his petition made pursuant to section 1170.95 of the Penal Code seeking resentencing of convictions on three counts of attempted murder of a peace officer in violation of subdivision (e) of section 664 and section 187.[1] We affirm.

BACKGROUND

1. The circumstances leading to defendant’s conviction

The background leading up to defendant’s petition for resentencing is taken from the record on appeal and from our opinion issued in defendant’s appeal from the judgment, People v. Mackey (Nov. 30, 2012, E054342) [nonpub. opn.] (Mackey I).

In 2007, defendant began shooting at specialized team of police officers when they tried to arrest him on an outstanding felony warrant. Officers returned fire, injuring defendant, who was then taken into custody. The charges against defendant resulting from the shootout included three counts of willful, deliberate, premeditated attempted murder of a peace officer and, as to each count, that he used personally used, and personally and intentionally discharged, a firearm (handgun).

A jury convicted defendant of the attempted murders and related firearm offenses. The trial court sentenced him to an indeterminate prison terms of 90 years to life (15 years for each of the three premeditated attempted murder convictions, doubled based upon a prior strike admitted by defendant), a determinate term of 20 years for each count, plus a nine-year determinate term based upon four prison priors).

Defendant appealed the judgment. (Mackey I, supra, E054342.) We corrected the defendant’s sentence to reflect one year each for the prison priors and affirmed the judgment in all other respects.

2. Defendant’s petition for resentencing

In 2018, the Legislature eliminated natural and probable consequences liability for murder and narrowed the scope of the felony-murder rule by passage of Senate Bill No. 1437, effective January 1, 2019. (Stats. 2018, ch. 1015.) The bill substantively amended sections 188 and 189 to ensure liability for murder would be limited to persons who (i) are the actual killer, (ii) are not the actual killer but, with the intent to kill, the person aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or (iii) are a major participant in the underlying felony and acted with reckless indifference to human life as described in section 190.2, subdivision (d). (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)

The bill also added section 1170.95. (Added by Stats. 2018, ch. 1015, § 4 (Sen. Bill No. 1437), effective Jan. 1, 2019; amended by Stats. 2021, ch. 551, § 1 (Sen. Bill No. 775), effective Jan. 1, 2022.) In relevant part, that provision establishes the procedure for persons previously convicted of attempted murder under a 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, to petition to have their sentence vacated and to be resentenced if they could not be convicted under the law as amended. (§ 1170.95; Lewis, supra, 11 Cal.5th at p. 959.)

On June 24, 2021, defendant filed a form petition pursuant to section 1170.95. The sentencing court appointed counsel for defendant and set the matter for hearing. At the hearing, the court struck the petition, finding that defendant was the perpetrator of the events that led to his conviction and sentencing. Defendant noticed this appeal.

DISCUSSION

Defendant’s counsel has filed a “no-issues” brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S 738 (Anders), setting forth statements of the case and facts. Counsel suggests two potentially arguable issues: (i) whether the trial court erred in finding defendant was a “major participant in the attempted murders and acted with an indifference to human life, or in otherwise dismissing [defendant’s petition]”; and, (ii) whether the assistance of defendant’s counsel was ineffective.

Defendant did not respond to our invitation affording him an opportunity to file a personal brief.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106 and in keeping with People v. Gallo (2020) 57 Cal.App.5th 594, we conducted an independent review of the record. That review resulted in our request for the parties to brief the issue whether we should remand defendant’s appeal with instructions to the trial court to verify whether section 1171.1 applies to defendant and, if so, to recall his sentence and conduct a resentencing hearing.

Section 1171.1 became effective on January 1, 2022, shortly after defendant’s counsel filed his no-issues brief. (Stats 2021, ch 728 § 3 (SB 483).) That statute renders legally invalid all prior prison term enhancements imposed before January 1, 2020 pursuant to subdivision (b) of section 667.5 except those for an enhancement resulting from a conviction for a sexually violent offense. (§ 1171.1, subd. (a).) It provides for recall of the sentence and resentencing of all eligible persons who are in custody. (§ 1171.1, subds. (b)-(c).) Defendant’s sentence includes four prior prison term enhancements.

In his response to our request for supplemental briefing, defendant states he is eligible for section 1171.1 relief and posits his qualifying prison prior enhancements are now unauthorized sentences subject to correction at any time by any court. The People agree defendant appears to be entitled to relief but disagree with the notion that the enhancements are unauthorized and subject to a simple correction by any court. They argue remand by this court for review and resentencing is not only unnecessary but would disrupt the orderly process the Legislature took care to fashion in an effort to mitigate the burden on trial court resources resulting from compliance with the statute.

Compliance with section 1171.1 requires the Secretary of the Department of Corrections and Rehabilitation (CDCR) and the county correctional administrator of each county to identify and report to the sentencing court all defendants entitled to resentencing relief due to qualifying prison prior enhancements. (§ 1171.1, subds. (b).) The sentencing courts are to verify the eligibility of defendants, recall their sentence and resentence them. (§ 1171.1, subds. (c) & (d).)

When reviewing the bill proposing section 1171.1, the Senate Committee on Appropriations expressed concern about diverting resources and causing further delays in provision of court services if sentencing courts were required to process and review information, and update abstracts of judgment by the end of the then proposed deadline of four months after receipt of information from CDCR and the counties. (Senate Committee on Appropriations, Analysis of Senate Bill 483, March 3, 2021, p. 3; Senate Committee on Appropriations, Analysis of Senate Bill 483, May 20, 2021, pp. 1, 2; see also, Senate Committee on Public Safety, Analysis of Senate Bill 483, March 3, 2021.)[2] Those concerns resulted in the provision of a staggered timeline for compliance: priority for relief will be given to those persons who have already served their base term as well as any other sentencing enhancements imposed and are currently serving the prior prison term enhancement. (§ 1171.1, subds. (b) & (c).) Review and resentencing for the priority group is to be completed by October 1, 2022; thereafter, review and resentencing for all other eligible persons will be undertaken, to be completed by December 31, 2023. (Ibid.)

In consideration of the Legislature’s expressed need for orderly implementation of the relief afforded by section 1171.1, and in view of the fact defendant will be considered for relief in due course, we decline to remand defendant’s appeal with instructions to the trial court to verify whether the statute applies to defendant and, if so, to recall his sentence and conduct a resentencing hearing.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORT

RAMIREZ

P. J.

We concur:

MILLER

J.

CODRINGTON

J.

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

[2] We grant the People’s unopposed request made in connection with their supplemental brief that we take judicial notice of the three legislative documents cited in the text. (Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.252.)