Filed 3/17/22 P. v. Kendrick CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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Defendant Taran Lavel Kendrick appeals the trial court’s summary denial of his request to be resentenced in light of the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) and failure to consider striking or reducing his firearm enhancement under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Senate Bill 620). Defendant contends the trial court erred: (1) in determining the resentencing provisions of Penal Code section 1170.95 only apply to persons convicted of murder and not attempted murder; (2) in denying his request for resentencing prior to appointing counsel to represent him; and (3) in failing to consider defendant’s request for reduction of his firearm enhancement.[1] In our original unpublished decision in this matter, we disagreed and affirmed the trial court’s order. Defendant appealed this denial to the California Supreme Court, which granted his petition for review and, on January 26, 2022, the Supreme Court transferred the matter back to us with directions to vacate the previous decision and reconsider the matter “in light of Senate Bill No. 775 (Stats. 2021, ch. 551) and People v. Lewis (2021) 11 Cal.5th 952.” We now conclude that reversal and remand for further proceedings is required.

I. BACKGROUND

On April 9, 2002, the People filed an amended complaint charging defendant and a codefendant in count 1 with murder (§ 187) and numerous enhancements, including an allegation that defendant personally discharged a firearm causing injury (§ 12022.53, subd. (d)) and committed the crime to benefit a street gang (§ 186.22, subd. (b)(1)). Counts 2 through 6 charged defendant and his codefendant with attempted murder (§§ 664/187) and included special allegations that defendant personally discharged a firearm causing injury (§ 12022.53, subd. (d)) and intentionally discharged a firearm (§ 12022.53, subd. (c)). Finally, count 7 charged defendant’s codefendant with robbery (§ 211), and count 8 charged defendant and his codefendant with the substantive offense of street terrorism (§ 186.22, subd. (a)).

The court’s September 25, 2003 minute order reflects that on the seventh day of defendant’s jury trial, the parties reached a resolution of the case. Defense counsel stated for the record that defendant did not fire a weapon. The court granted the People’s motion to amend count 1 to charge attempted murder (§§ 664/187) with a gun enhancement under section 12022.53, subdivisions (c) and (e)(1). The court further struck the “willful and deliberate” allegations from counts 2 through 6. Defendant then pled guilty to count 1 and admitted the gun enhancement (§ 12022.53, subds. (c), (e)(1)) and the gang enhancement (§ 186.22, subd. (b)(1)). All remaining enhancements as to all counts were stricken. Defendant also pled guilty to attempted murder in counts 2 through 6 and to the street terrorism charge.

The minute order and abstract of judgment reflect that defendant was sentenced the same day to three years on count 1, plus 20 years consecutive for the gun enhancement, plus three years concurrent for the gang enhancement for a total aggregate prison term of 23 years. He also received sentences of the mid-term of six years for each attempted murder count, to run concurrently to count 1, and a sentence of two years to run concurrently for the street terrorism conviction. There is no indication in the record or this court’s files that defendant appealed this judgment.

On December 31, 2018, defendant filed a pro per request asking the court to: (1) correct the abstract of judgment to reflect that he actually pled guilty in count 1 to voluntary manslaughter, not attempted murder; (2) consider modifying his gun enhancement “from 23 years to 10 years”; and (3) consider resentencing defendant in light of Senate Bill 1437. Attached to this request was the reporter’s transcript of the plea hearing wherein the People did indeed amend the information to reflect a charge of voluntary manslaughter for count 1, and defendant pled guilty to that charge.

On February 25, 2019, the trial court issued an ex parte order modifying the abstract of judgment as requested and denying defendant’s request for resentencing pursuant to Senate Bill 1437, stating: “Per PC 1170.95(a), the resentencing provisions [o]f SB1437 only apply to persons convicted of 1st or 2nd degree murder. The Petitioner was convicted of ‘attempted’ murder, not murder and, therefore, does not qualify for resentencing under SB1437.” The order did not address defendant’s request to modify the gun enhancement. Defendant timely appealed and did not request a certificate of probable cause.

II. DISCUSSION

1. Section 1170.95 Now Applies to Manslaughter and Attempted Murder

“Senate Bill 1437 ‘amend[ed] 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.’ ” (People v. Gentile (2020) 10 Cal.5th 830, 842.) The bill also “added section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief . . . .” (Id. at p. 843.)

At the time the trial court considered defendant’s petition, section 1170.95 did not expressly permit a petition for resentencing on convictions for attempted murder. (§ 1170.95, former subd. (a).) However, Senate Bill 775, which became effective January 1, 2022 (Cal. Const. art. IV, § 8; Stats. 2021, ch. 551, § 2), amends subdivision (a) of section 1170.95 to read, in pertinent part: “A person convicted of . . . attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner’s . . . attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts . . . .” (Stats. 2021, ch. 551, § 2.)

The parties agree, and we concur that these ameliorative amendments should be applied retroactively to defendant’s case, which has remained pending on appeal through the amendment’s effective date. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308; People v. Porter (2022) 73 Cal.App.5th 644, 652). In light of this, the People concede that defendant is entitled to reversal and remand for the appointment of counsel, briefing, and a determination of whether defendant has stated a prima facie case for relief (§ 1170.95, subds. (b)(3), (c)). We accept this concession and will reverse and remand for these purposes. (See Stats. 2021, ch. 551, § 1(b) [Senate Bill 775 “[c]odifies the holdings of People v. Lewis[, supra,] 11 Cal.5th [at pp.] 961-970, regarding petitioners’ right to counsel and the standard for determining the existence of a prima facie case”]; Porter, supra, at pp. 652-653 [reversing and remanding for the appointment of counsel and further proceedings under amended § 1170.95].)

2. Senate Bill 620

Because we have determined that defendant is entitled to the appointment of counsel and remand for further proceedings under amended section 1170.95, we need not specifically revisit defendant’s arguments concerning the trial court’s order that implicitly denied his request to modify the firearm enhancement associated with his original sentence.

Nonetheless, we note that when defendant was sentenced in 2003, the court had no discretion to strike or dismiss a firearm use enhancement. (See § 12022.53, former subd. (h) [“[n]otwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section”].) “However, Senate Bill [] 620 amended the statute, effective January 1, 2018, to give the trial court discretion, in limited circumstances, pursuant to section 1385, to strike a firearm enhancement in the interest of justice. [Citation.] Subdivision (h) of section 12022.53 now provides, ‘The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law.’ ” (People v. Johnson (2019) 32 Cal.App.5th 938, 941.)

While this provision is not fully retroactive (People v. Hernandez (2019) 34 Cal.App.5th 323, 326-327 [rejecting defendant’s equal protection full retroactivity argument]), it does apply to defendants who have exhausted their rights to appeal and for whom a judgment of conviction has been entered, but who have obtained collateral relief by way of a state or federal habeas proceeding or other post judgment motions. (People v. Johnson, supra, 32 Cal.App.5th at p. 941; see also People v. Arredondo (2018) 21 Cal.App.5th 493, 507.) This deadline passed for defendant many years ago. (See People v. Vieira (2005) 35 Cal.4th 264, 306 [finality for purposes of retroactive application of a criminal statute occurs after the time for petitioning to the Supreme Court of the United States for a writ of certiorari has passed].) However, we concur with the People that should the trial court grant defendant’s request and resentence him pursuant to section 1170.95, defendant would then be entitled to request the discretionary relief afforded by Senate Bill 620 and amended section 12022.53, subdivision (h).

III. DISPOSITION

The trial court’s order denying defendant’s request for resentencing is reversed and the matter remanded for the appointment of counsel and further proceedings consistent with this decision.

/S/

RENNER, J.

We concur:

/S/

RAYE, P. J.

/S/

DUARTE, J.

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