Filed 3/17/22 P. v. Stewart CA4/2

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed and remanded with directions.

Richard Power and Leslie Ann Rose, 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, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Christopher P. Beesley and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant, Thurston Stewart IV, filed a petition for resentencing pursuant to Penal Code section 1170.95,[1] which the superior court denied. On appeal, defendant contended the court erred in denying his petition on the grounds that section 1170.95 did not apply to those convicted of attempted murder. We affirmed by opinion filed May 21, 2021.

On January 5, 2022, the California Supreme Court ordered the matter transferred to this court with directions to vacate our decision and reconsider the matter in light of Senate Bill No. 775 (Stats. 2021, ch. 551). On January 7, 2022, we vacated our opinion and provided that any party could file a supplemental brief within 15 days. Both parties have filed briefs maintaining the matter must be reversed and remanded. We reverse and remand the matter for reconsideration.

I. PROCEDURAL BACKGROUND

On July 13, 2011, the People charged defendant by amended felony complaint with murder (§ 187, subd. (a); count 1), two counts of robbery (§ 211; counts 2 & 3), voluntary manslaughter (§ 192, subd. (a); count 4), and attempted murder (§§ 664, 187, subd. (a); count 5). The People additionally alleged that defendant had been engaged in the commission of an attempted robbery when he committed the count 1 offense. (§ 190.2, subd. (a)(17)(A).)

On July 13, 2011, pursuant to a negotiated agreement, defendant pled guilty to two counts of robbery (§ 211; counts 2 & 3), voluntary manslaughter (§ 192, subd. (a); count 4), and attempted murder (§§ 664, 187, subd. (a); count 5). Defendant also admitted a principal was armed with a firearm in the commission of the count 4 offense. (§ 12022, subd. (a)(1).) In return, the remaining count and allegation were dismissed. On June 11, 2012, the court sentenced defendant to the agreed upon term of 16 years four months of imprisonment.

On January 30, 2020, defendant filed a petition for resentencing pursuant to section 1170.95. At the hearing on defendant’s petition, the People moved to dismiss defendant’s petition because defendant had been convicted of attempted murder and voluntary manslaughter, not murder. The court denied the petition.[2]

II. DISCUSSION

The parties agree that the amendments to section 1170.95 rendered by Senate Bill No. 775 (2021-2022 Reg. Sess.) expressly afford those convicted of manslaughter and attempted murder relief under certain circumstances. Thus, they maintain we must reverse and remand the matter for reconsideration by the court below. We agree.

Senate Bill No. 1437 (2017-2018 Reg. Sess.) added section 1170.95 (Stats 2018, ch. 1015, § 4), setting forth the procedure by which a “person convicted of felony murder or murder under a natural and probable consequences theory . . . may file a petition with the court that sentenced the petitioner to have the petitioner’s murder . . . conviction vacated and to be resentenced on any remaining counts.” (Former § 1170.95, subd. (a).) Prior to Senate Bill No. 775, the Courts of Appeal unanimously agreed that persons convicted of manslaughter and attempted murder were ineligible for postjudgment relief pursuant to section 1170.95. Senate Bill No. 775 expressly provided relief to persons convicted of manslaughter and attempted murder, in certain circumstances, including, retroactively, pursuant to section 1170.95 (Stats. 2021, ch. 551, § 2). Senate Bill No. 775’s amendments to section 1170.95 became effective January 1, 2022.

The merits of defendant’s petition have not been reviewed by the trial court, a necessary predicate to our review of its decision. In light of the amendments, we will remand the matter to the trial court for further proceedings pursuant to section 1170.95. Defendant is “entitled to the appointment of counsel upon the filing of a facially sufficient petition . . . .” (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) “[O]nly after the appointment of counsel and the opportunity for briefing may the superior court consider the record of conviction to determine whether ‘the petitioner makes a prima facie showing that he or she is entitled to relief.’” (Ibid.)

“If the trial court determines that a prima facie showing for relief has been made, the trial court [shall] issue[] an order to show cause, and then . . . hold a hearing ‘to determine whether to vacate the . . . conviction[s] and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not . . . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.’ [Citation.] ‘The prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens.’ [Citation.] At the hearing stage, ‘the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.’” (Lewis, supra, 11 Cal.5th at p. 960.)

III. DISPOSITION

The order dismissing defendant’s petition is reversed, and the matter is remanded for reconsideration by the court below. The trial court is directed to modify its February 14, 2020 minute order to reflect that it denied, rather than dismissed, defendant’s petition for resentencing.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

FIELDS

J.

MENETREZ

J.

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

[2] The reporter’s transcript reflects that the trial court denied the petition. The minute order indicates the court dismissed the petition. We shall direct the court to correct its minute order. (See People v. Jones (2012) 54 Cal.4th 1, 89 [The minute order “‘does not control if different from the trial court’s oral judgment and may not add to or modify the judgment it purports to digest or summarize.’”].) The reviewing court has the authority to correct clerical errors in the minute order. (People v. Contreras (2009) 177 Cal.App.4th 1296, 1300, fn. 3.)