Filed 7/28/22 P. v. Bulander CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded.

Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

Introduction

Appellant Ian Anthony Bulander pled guilty to attempted murder. He later filed a petition for resentencing under Penal Code former section 1170.95 (former section 1170.95).[1] The trial court denied the petition because, at that time, eligibility for relief under former section 1170.95 was limited to those convicted of murder. The Attorney General concedes this limit on eligibility for resentencing no longer applies, but argues there was nevertheless no prejudicial error because Bulander remained ineligible for relief. We disagree, reverse the trial court’s order denying Bulander’s petition for resentencing, and remand for further proceedings on the petition.

Statement of Facts and Procedural History

Bulander was charged with conspiracy to commit murder and attempted murder. (§§ 187, subd. (a), 182, subd. (a)(1), 664, subd. (a).) The information alleged that Bulander committed both crimes for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and that in committing attempted murder, Bulander inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The information also alleged Bulander had a strike prior and a prison prior. (§§ 1192.7, 667.5, subd. (b).)

In April 2012, Bulander pled guilty to attempted murder, and admitted the criminal street gang allegation and the prison prior. The conspiracy charge and the other sentencing enhancement allegations were dismissed. The factual basis for Bulander’s plea agreement reads: “In Orange County, California, on 12‑31‑2010, I unlawfully attempted to kill Joseph B. Further, I committed the above offense at the direction of the Mexican Mafia, a criminal gang, with the intent to further criminal conduct by members of that gang.”

The trial court sentenced Bulander to 20 years in prison: 10 years for attempted murder, and 10 years for the criminal street gang enhancement.

In June 2021, Bulander filed a petition for resentencing under former section 1170.95. The trial court found Bulander had failed to state a prima facie case for relief because he had not been convicted of murder, and denied the petition without appointing counsel for Bulander. Bulander timely appealed.

Discussion

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) reformed the law relating to the felony-murder rule and the natural and probable consequences doctrine by amending section 188 to provide that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3), as amended by Stats. 2018, ch. 1015, § 2.) The legislation also added the following to section 189: “A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.)

Senate Bill No. 1437 also added a mechanism by which a defendant convicted of felony murder or murder under a natural and probable consequences theory could seek to have the conviction vacated. (Former § 1170.95, added by Stats. 2018, ch. 1015, § 4.) As originally enacted, the procedures to be followed were: “(c) The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause. [¶] (d)(1) Within 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner . . . . [¶] (2) The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated . . . . [¶] (3) At the hearing . . . , the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction . . . shall be vacated and the petitioner shall be resentenced on the remaining charges.” (Former § 1170.95, former subds. (c) & (d).) As enacted by Senate Bill No. 1437, resentencing under former section 1170.95 was only available to those convicted of murder, not attempted murder.

Senate Bill No. 775, effective January 1, 2022 (Stats. 2021, ch. 551, § 2), amended former section 1170.95 to allow persons convicted of manslaughter or attempted murder under the natural and probable consequences doctrine to seek relief from their convictions and resentencing under the statute (former § 1170.95, subd. (a)). The legislation also clarified that a person is entitled to an attorney upon the filing of a facially sufficient petition. (Id., subd. (b)(3).)[2]

At the time Bulander filed his resentencing petition, relief under former section 1170.95 was unavailable to those convicted of attempted murder, rather than murder, and it was on that basis the trial court denied the petition. The trial court’s order must be reversed, and the matter remanded to allow the court to appoint counsel for Bulander and then make the determination in the first instance whether Bulander has made a prima facie case for relief under former section 1170.95.

The Attorney General argues any error by the trial court was harmless because Bulander is ineligible for relief under former section 1170.95 as a matter of law based on the trial court record. (People v. Coley (2022) 77 Cal.App.5th 539, 546 [where defendant ineligible for resentencing as matter of law, trial court’s failure to hold hearing on resentencing petition not prejudicial].)

The information alleges that Bulander “did unlawfully, and with the specific intent to kill, attempt to murder” the victim, and Bulander’s plea admits that he “unlawfully attempted to kill” the victim. The Attorney General argues that, based on the information and the plea, Bulander cannot establish he could not be convicted of attempted murder under the natural and probable consequences doctrine. We disagree.

The inclusion in the information of language of a specific intent to kill, which is part of the generic definition of attempted murder (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 7), would not have precluded the prosecution from proceeding on a natural and probable consequences theory at trial. Indeed, the natural and probable consequences doctrine imputes the specific intent to kill in a murder prosecution. (See generally People v. Prettyman (1996) 14 Cal.4th 248, 259‑260.) Similarly, the use of the term “unlawfully” in Bulander’s guilty plea does not do more than track the general definition of attempted murder. (See People v. Flores (2022) 76 Cal.App.5th 974, 987 [where neither information nor guilty plea specified or excluded any particular theory of murder, defendant not ineligible from resentencing as matter of law]; People v. Davenport (2021) 71 Cal.App.5th 476, 484 [“‘“only a single statutory offense of murder exists”’” and information alleging murder as committed “‘“willfully, unlawfully, and with malice aforethought”’” does not limit prosecution’s ability to pursue felony murder or murder based on natural and probable consequences doctrine]; People v. Enyon (2021) 68 Cal.App.5th 967, 970‑971 [admission of guilt of premeditated and deliberate murder does not make defendant ineligible for relief under former section 1170.95]; People v. Rivera (2021) 62 Cal.App.5th 217, 232‑233 [second degree murder conviction, where indictment did not charge particular theory of murder, does not categorically bar petition under former § 1170.95].)

Nothing in the appellate record establishes that Bulander could not have been convicted of attempted murder under the natural and probable consequences doctrine. Therefore, the Attorney General cannot show that Bulander was ineligible for resentencing under former section 1170.95 as a matter of law.

Disposition

The postjudgment order is reversed, and the matter is remanded for further proceedings.

MOTOIKE, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.

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

Bulander’s petition was filed under former section 1170.95. Effective June 30, 2022, former section 1170.95 was renumbered as section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) For purposes of clarity, we will refer to the statute as former section 1170.95 throughout this opinion.

[2] Senate Bill No. 775 made other amendments to former section 1170.95 that are not relevant to the issues presented by this case.