Filed 4/4/22 P. v. Hernandez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Kerry Bensinger, Judge. Reversed and remanded.

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

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Daniel C. Chang and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Danny Roberto Hernandez appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.95[1] as to his convictions for attempted murder and voluntary manslaughter. As explained below, we reverse and remand.

BACKGROUND

Pursuant to a negotiated plea, in May 2001 appellant pled guilty or no contest (the record is unclear as to which) to one count of voluntary manslaughter (§ 192, subd. (a), count 1), and one count of attempted murder (§§ 664/187, subd. (a), count 2).^[2] Appellant also admitted that under former section 12022.5, subdivision (a)(1), he personally used a firearm in the commission of the offenses.

On count 1, appellant was sentenced to the upper term of 11 years for manslaughter, plus 10 years for the firearm enhancement. On count 2, appellant was sentenced to a consecutive term of 28 months (one-third the middle term of 84 months) for attempted murder, plus 40 months (one-third of 10 years) for the firearm enhancement, for an overall term of imprisonment of 26 years 8 months.

As enacted by Senate Bill No. 1437 (2017‑2018 Reg. Sess.) effective January 1, 2019, section 1170.95 provided a procedural mechanism for defendants convicted of murder on a felony murder theory or under the natural and probable consequences doctrine to seek resentencing. (See former § 1170.95; Stats. 2018, ch. 1015, § 4.)

On August 4, 2020, appellant filed a petition for resentencing pursuant to section 1170.95, after which the court appointed counsel for appellant and received a written opposition from the People. Following a brief hearing on appellant’s petition (defense counsel submitted on the petition), the court denied the petition at the prima facie review stage. (See § 1170.95, subd. (c).) Relying on then-recent appellate decisions construing former section 1170.95, the court reasoned that because appellant was not convicted of murder, he was ineligible for relief as a matter of law.

Appellant timely appealed. In his opening brief, appellant argues that excluding petitioners convicted of attempted murder and manslaughter from relief under section 1170.95 violates principles of equal protection and due process under the State and Federal Constitutions. While this appeal was pending, on October 5, 2021, the Governor signed into law Senate Bill No. 775. Effective January 1, 2022, Senate Bill No. 775 amends section 1170.95 by expanding the resentencing petition process to include individuals “convicted of attempted murder or manslaughter under a theory of felony murder [or] the natural probable consequences doctrine.” (Stats. 2021, ch. 551, § 1(a).)

In his respondent’s brief, the Attorney General concedes that under the amended version of section 1170.95, we must reverse and remand the order denying appellant’s petition. In light of the Attorney General’s concession, appellant did not file a reply brief, and instead requested that the case be designated as fully briefed and submitted for decision.

DISCUSSION

Based on the passage of Senate Bill No. 775, we agree with the parties that the matter must be reversed and remanded. Because the postjudgment order denying appellant’s request for resentencing had not become final prior to the effective date of Senate Bill No. 775, the ameliorative provisions in that bill apply to this case. (See People v. Garcia (2018) 28 Cal.App.5th 961, 973; People v. Vieira (2005) 35 Cal.4th 264, 305.) Under the current version of section 1170.95, appellant may now be able to establish a prima facie showing of eligibility for resentencing as to his convictions for voluntary manslaughter and attempted murder. (See § 1170.95, subd. (a).)

The parties submit that on remand the trial court should proceed in accordance with section 1170.95, subdivision (c). Given the limited record before us,[3] we agree.

DISPOSITION

The postjudgment order denying appellant’s section 1170.95 petition is reversed. The matter is remanded to the trial court to hold further proceedings consistent with section 1170.95, subdivision (c), including the appointment of counsel and briefing from the parties regarding appellant’s eligibility for relief under the statute as amended by Senate Bill No. 775.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

MANELLA, P. J.

COLLINS, J.

[1] Subsequent references to statutes are to the Penal Code.

[2] The record on appeal does not include the information, reporter’s transcript of the plea, or a minute order specifying whether appellant pled no contest or guilty on counts 1 and 2. In their appellate briefs, the parties assert appellant pled no contest to both charges and admitted the firearm enhancement allegations. The trial court’s memorandum of decision, however, states that appellant pled guilty to both felony counts. The memorandum of decision also indicates that appellant was originally charged with one count of murder (§ 187, subd. (a), count 1), and one count of attempted murder (§§ 664/187, subd. (a), count 2). On the day appellant entered his plea, the information was amended to change the charge of murder on count 1 to manslaughter.

[3] As discussed in footnote 2 ante, the record on appeal is scant. It does not reflect the factual basis of the plea. (See People v. Lewis (2021) 11 Cal.5th 952, 971–972; People v. Davenport (2021) 71 Cal.App.5th 476, 481–483.)