Filed 4/7/22 P. v. Robles CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Scott T. Steffen, Judge.

Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and Kari Ricci Mueller, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

In 2016, petitioner Jeanette Robles pled no contest to one count of voluntary manslaughter (Pen. Code,[1] § 192, subd. (a)) as a lesser included offense of the charge of premeditated murder (§ 187, subd. (a)). She also admitted a gang enhancement. (§ 186.22, subd. (b)(1)(C).) The trial court sentenced petitioner to an aggregate term of 21 years in state prison.

In 2019, petitioner filed a petition for resentencing pursuant to section 1170.95. The court summarily denied the petition on the ground section 1170.95 does not provide for resentencing of defendants who were convicted of voluntary manslaughter.

During the pendency of this appeal, section 1170.95 was amended to expressly permit resentencing of certain persons convicted of manslaughter. (§ 1170.95, subd. (a); see Sen. Bill No. 775 (2021-2022 Reg. Sess.) (Sen. Bill No. 775); Stats. 2021, ch. 551, §§ 1-2.) The parties now agree the matter must be remanded for the trial court to determine whether petitioner has made a prima facie showing of entitlement to relief under the law as amended.

In light of the foregoing, we reverse the trial court’s order denying the petition and remand for further proceedings.

PROCEDURAL HISTORY[2]

On March 6, 2013, a Stanislaus County grand jury indicted petitioner on charges of conspiracy to commit murder (§§ 182, 187, subd. (a); count I) and premeditated murder (§ 187, subd. (a); count II). As to both counts the indictment alleged the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)) and that a principal personally and intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)).

On June 1, 2016, petitioner entered a plea of no contest, pursuant to People v. West (1970) 3 Cal.3d 595, to voluntary manslaughter as a lesser offense to the charge of murder on count II. Petitioner also admitted an amended gang enhancement. (§ 186.22, subd. (b)(1)(C).) The remaining counts and allegations were dismissed. Petitioner requested immediate sentencing and the court sentenced her to the upper term of 11 years on the manslaughter conviction, plus an additional 10 years for the gang enhancement.

On June 26, 2019, petitioner, in propria persona, filed a petition for resentencing pursuant to section 1170.95. In the form petition, petitioner stated that a complaint, information, or indictment was filed against her that allowed her to be prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine; she pled no contest to first or second degree murder in lieu of going to trial; and she could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. She further averred that she was not the actual killer, did not aid or abet the murder with intent to kill, and was not a major participant in the felony and did not act with reckless indifference to human life. Finally, she declared that the victim of the murder was not a peace officer in the performance of his or her duties. She requested counsel be appointed to represent her on the petition.

On July 11, 2019, the trial court summarily denied the petition, stating:

“[B]y its terms, Penal Code section 1170.95 applies only to defendants who have been convicted of murder. Defendant entered a plea to, and was convicted of, voluntary manslaughter, but was not convicted of murder. She is therefore not eligible for resentencing.”

This timely appeal followed.

DISCUSSION

I. Applicable Law

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) “to amend the felony murder rule and the natural and probable consequences doctrine . . . to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill accomplished this task by adding three separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189, subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.”[3] (§ 189, subd. (e); accord, Gentile, at p. 842.)

Finally, the bill added section 1170.95 to provide a procedure for those convicted of a qualifying offense “to seek relief under the two ameliorative provisions above.” (Gentile, at p. 843.) This procedure is available to persons 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.” (§ 1170.95, subd. (a).)

“Section 1170.95 lays out a process” for a person convicted of one of the aforementioned offenses “to seek vacatur of his or her conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the sentencing court averring that:

“(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, 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, or attempted murder under the natural and probable consequences doctrine[;]

“(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder[; and]

“(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord, People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)

Additionally, the petition shall state “[w]hether the petitioner requests the appointment of counsel.” (§ 1170.95, subd. (b)(1)(C).)

If a petition fails to contain the required information and the information cannot be “readily ascertained” by the court, the petition may be denied without prejudice to the filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response and the petitioner may file a reply. The trial court must then hold a hearing to determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972.)

If the court determines the petitioner has met his or her prima facie burden, “the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord, § 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens. The admission of evidence at the hearing is governed by the Evidence Code. However, the court also “may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural history of the case recited in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).) Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made admissible by another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)

To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)

II. Analysis

At the time the trial court considered petitioner’s petition, section 1170.95 did not expressly permit a petition for resentencing on a manslaughter conviction. (§ 1170.95, former subd. (a).) However, section 1170.95 has since been amended to “[c]larif[y] 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.” (Sen. Bill No. 775; Stats. 2021, ch. 551, § 1, subd. (a).) These amendments took effect on January 1, 2022. The parties submitted supplemental briefing on the effect of these amendments on petitioner’s appeal.

The trial court’s order denying the petition is not yet final and Senate Bill No. 775 has already taken effect. Therefore, the revisions set forth in Senate Bill No. 775 apply to the instant petition. (People v. Vieira (2005) 35 Cal.4th 264, 305-306; People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5 [a criminal judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed].) As the People concede, the matter must be remanded for the trial court to determine whether petitioner has established a prima facie showing of eligibility for resentencing under the law as amended by Senate Bill No. 775.

The People ask us to stay the appeal and order a limited remand for the trial court to determine petitioner’s eligibility for resentencing. Petitioner asks that we reverse and remand, finally disposing of the appeal. We agree with petitioner. The validity of the trial court’s determination that petitioner is ineligible for resentencing on her manslaughter conviction is the only issue presented in this appeal. The ruling is erroneous under the law as amended and must be reversed. There is no purpose in this court retaining jurisdiction over the instant appeal. Doing so would not promote judicial economy or efficiency. (People v. Porter (2022) 73 Cal.App.5th 644, 652.)

DISPOSITION

The July 11, 2019 order denying petitioner’s section 1170.95 petition is reversed. On remand, the trial court is directed to appoint counsel to represent petitioner and to conduct further proceedings on the petition in light of the principles set forth herein.

* Before Hill, P. J., Poochigian, J. and Detjen, J.

[1] Undesignated statutory references are to the Penal Code.

[2] We dispense with a statement of facts, as the facts underlying the offenses are not pertinent to the issues raised on appeal.

[3] Additionally, section 189 was amended to allow for felony-murder liability where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 Cal.App.5th 666, 672.)