Filed 6/8/22 P. v. Gentry CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE,
Plaintiff and Respondent,
v.
ADRIAN GENTRY,
Defendant and Appellant.
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E076365
(Super.Ct.No. FSB1500023)
OPINION
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APPEAL from the Superior Court of San Bernardino County. Michael A. Smith, Judge. Reversed.
Carl Fabian, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Acting Senior Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
In 2018, defendant Adrian Gentry pled guilty to one count of voluntary manslaughter (Pen. Code,[1] § 192, subd. (a)), as well as one count of assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), and admitted an allegation that a principal used a firearm (§ 12022, subd. (d)), in return for dismissal of charges of murder, attempted murder, gun discharge allegations, and gang enhancement allegations. Following the enactment of Senate Bill No. 1437, amending sections 188 and 189, pertaining to felony murder and the natural and probable consequences doctrine, defendant filed a petition for resentencing pursuant to section 1170.95. The trial court summarily denied the petition on the ground that resentencing relief was limited to convictions for murder. Defendant appealed that denial.
While defendant’s appeal was pending, the Legislature amended section 1170.95 to extend its resentencing provisions to convictions for attempted murder and manslaughter. In supplemental briefing, the People concede that in light of the amendment, the summary denial of defendant’s petition was error. We therefore reverse.
Background
The record does not include an information pertaining to the facts of the crimes. Defendant, along with four other defendants, was charged with murder (§ 187, subd. (a)), two counts of attempted murder (§§ 664, 187, subd. (a)), and shooting at an inhabited dwelling (§ 246). In connection with all counts as they pertained to this defendant,[2] it was alleged that a principal personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subds. (d), (e)(1)); a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1); a principal personally used a firearm (§ 12022.53, subds. (b), (e)(1).) It was further alleged that defendant was a minor who was at least 16 years of age at the time of the offense, within the meaning of Welfare and Institutions Code, section 707, subdivision (d)(1).
On August 9, 2018, pursuant to a sentence bargain with the prosecution, the information was amended to add a count of voluntary manslaughter (§ 192, subd. (a)) with an enhancement allegation that a principal was armed with a firearm (§ 12022.5, subd. (d)[3]), as count 5, and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)), as count 6. The plea agreement specified defendant would be sentenced to the midterm of 6 years for the voluntary manslaughter, with a 1 year enhancement to run consecutive to count 5, as well as a consecutive term of 1 year (one-third the midterm of three years) for count 6. Defendant entered his change of plea and was immediately sentenced to an aggregate term of 8 years in prison.
Following the enactment of section 1170.95 pursuant to Senate Bill No. 1437, defendant filed a petition seeking resentencing. His petition alleged he was convicted of murder under the natural and probable consequences doctrine and that there had been a prior determination he was not a major participant. Counsel was appointed and the People opposed the petition on the ground he failed to establish a prima facie basis for relief where he was not convicted of murder and because the version of section 1170.95 that was then in effect did not extend resentencing relief to persons convicted of manslaughter. The court agreed with the People that section 1170.95 did not apply to manslaughter convictions and summarily denied the petition. Defendant appealed.
Discussion
While this appeal was pending, the Legislature amended section 1170.95 pursuant to Senate Bill No. 775, extending resentencing relief to persons convicted of manslaughter and attempted murder. Both parties filed supplemental briefs to address the effect of the legislative action and agree that the amendment requires remand to the lower court for issuance of an order to show cause. We agree.
Senate Bill No. 1437 (2017–2018 Reg. Sess.) added section 1170.95, setting forth the procedure by which a “person convicted of felony murder or murder under the 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.” (§ 1170.95, subd. (a).)
Senate Bill No. 775 amended section 1170.95 to explicitly afford relief to persons convicted of attempted murder and manslaughter and became effective January 1, 2022. The effective date of nonurgency legislation such as Senate Bill No. 775, passed during the regular legislative session in 2021, is January 1, 2022. (People v. Montes (2021) 71 Cal.App.5th 1001, 1006.) Defendant’s appeal from the denial of his resentencing petition was not final by that date, so he may avail himself of this latest amendment. (People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
It therefore appears defendant did establish a prima facie basis for resentencing relief, despite the erroneous allegations in his petition that he was convicted of murder. Because his petition was summarily denied, he is entitled to a remand where the trial court is directed to issue an order to show cause and conduct an evidentiary hearing.
Disposition
The order summarily denying defendant’s petition pursuant to section 1170.95 is reversed and the matter is remanded to the trial court with directions to issue an order to
show cause and conduct an evidentiary hearing pursuant to section 1170.95, subdivision (d)(3), as amended by Senate Bill No. 775.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
FIELDS
J.
[1] All statutory references are to the Penal Code unless otherwise indicated.
[2] Although all five defendants were charged with the substantive crimes, the various gun discharge enhancements were pled differently as to each accused depending on their respective level of participation. Two of the defendants were charged with actually discharging their firearms in connection with the murder, attempted murders, and shooting at an inhabited dwelling, pursuant to sections 12022.53, subdivisions (d), (c), (b), and section 12022.5, subdivision (a). As to the remaining defendants, including Gentry, it was alleged that a principal discharged or used a firearm.
[3] The actual language of the Tahl change of plea form (ref. In re Tahl (1969) 1 Cal.3d 122) and the abstract of judgment refers correctly to section “12022.5(d)” but the minutes of the change of plea proceedings referred to a violation of section “12022.5(D)-E.” Because section 12022.5, subdivision (e) refers to persons who personally used a firearm, we assume there is a clerical error in the minutes.