Filed 3/17/22 P. v. Higgs CA2/8

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. David B. Gelfound, Judge. Reversed and remanded with directions.

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

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In April 2015, defendant and appellant Branden Trevaughn Higgs pled no contest to four counts of attempted murder (Pen. Code, § 187, subd. (a), § 664) and one count of voluntary manslaughter (§ 192, subd. (a)) and admitted a firearm use allegation (§ 12022, subd. (a)(1)). The court sentenced defendant to a term of 16 years eight months.

After the passage of Senate Bill 1437 (2017-2018 Reg. Sess.) in 2018, defendant filed, in propria persona, a petition for resentencing pursuant to Penal Code section 1170.95. Section 1170.95 was enacted as part of the legislative changes effected by Senate Bill 1437 and became effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.) Defendant requested the appointment of counsel and resentencing on the grounds he was not the actual killer or a major participant in the crimes.

On March 9, 2020, the trial court summarily denied defendant’s petition without appointing counsel. The trial court concluded defendant had not stated a prima facie case for relief because he was convicted of attempted murder and voluntary manslaughter, not murder as required by the statutory language.

Defendant appealed. In our original decision, we affirmed the denial of defendant’s resentencing petition. Looking at the plain language of Penal Code section 1170.95, subdivision (a), as it was then phrased, we concluded the retroactive resentencing provisions applied only to those individuals convicted of felony murder or murder under a natural and probable consequences theory and not to individuals, like defendant, convicted of attempted murder and voluntary manslaughter. (People v. Higgs (Apr. 28, 2021, B305937) [nonpub. opn.].)

Defendant filed a petition for review asking the Supreme Court to grant review and defer briefing as this case raised the same issue then pending before the Court, that is, whether Senate Bill 1437 applied to attempted murder liability under the natural and probable consequences doctrine. Defendant also asked the court to review whether individuals convicted of voluntary manslaughter should be eligible under the statute. The Supreme Court granted review on July 14, 2021.

In October 2021, while this case was pending in the Supreme Court, the Legislature passed Senate Bill 775 (2021-2022 Reg. Sess.) which amended the language of Penal Code section 1170.95 by, among other things, expanding the scope of the resentencing provision to include individuals who had been convicted of attempted murder or manslaughter under a natural and probable consequences theory. (§ 1170.95, subd. (a), as amended by Stats. 2021, ch. 551, § 2.)

On January 26, 2022, the Supreme Court transferred this case to us with directions to vacate our decision and reconsider the matter in light of the passage of Senate Bill 775 and the Court’s recent decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Having vacated our original decision and reconsidered the issues presented in light of the new legislation and in light of Lewis, we now reverse and remand with directions to the superior court to appoint counsel for defendant, conduct further proceedings pursuant to Penal Code section 1170.95, subdivision (c) and if necessary, subdivision (d), as amended.

DISCUSSION

As originally enacted, Senate Bill 1437 amended “ ‘the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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).)” (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill 1437 also added Penal Code section 1170.95 which, as originally enacted, set forth a procedure whereby a “person convicted of felony murder or murder under a natural and probable consequences theory” could petition for resentencing relief. (§ 1170.95, subd. (a).)

Senate Bill 775, among other things, amended Penal Code section 1170.95, subdivision (a) to expand the individuals entitled to petition for resentencing. Subdivision (a) now expressly permits individuals convicted of attempted murder or manslaughter under a natural and probable consequences theory to file a petition for resentencing relief.

Here, the trial court summarily denied defendant’s petition without appointing counsel on the grounds defendant was not convicted of murder and therefore was ineligible for relief as a matter of law. In light of the passage of Senate Bill 775, the trial court’s order must be reversed. Respondent concedes remand is appropriate.

Defendant is entitled to the appointment of counsel upon remand to assist him in seeking resentencing. (Lewis, supra, 11 Cal.5th at p. 957 [“petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition”].)

On remand, defendant, with the assistance of appointed counsel, and respondent shall be entitled to file their respective briefs. “After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.” (Pen. Code, § 1170.95, subd. (c).)

If the court issues an order to show cause, the court shall conduct further proceedings in accordance with Penal Code section 1170.95, subdivision (d), as amended.

DISPOSITION

The order denying defendant’s resentencing petition is reversed and the case remanded to the superior court.

On remand, the superior court is directed to appoint counsel and conduct further proceedings pursuant to Penal Code section 1170.95, subdivision (c), as amended. If the court issues an order to show cause, the court shall conduct further proceedings in accordance with section 1170.95, subdivision (d), as amended.

GRIMES, Acting P. J.

WE CONCUR:

STRATTON, J.

WILEY, J.