Filed 1/19/22 P. v. Duarte CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIA DUARTE,

Defendant and Appellant.

 B311993

 (Los Angeles County

 Super. Ct. No. KA067568)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Mike Camacho, Judge. Reversed and 

remanded with directions. 

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, Senior 

Assistant Attorney General, Michael R. Johnsen, Supervising
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Deputy Attorney General, Charles S. Lee, Daniel C. Chang and 

David W. Williams, Deputy Attorneys General, for Plaintiff and 

Respondent.

_______________________

Maria Duarte pleaded guilty in 2005 to two counts of 

attempted murder (Pen. Code, §§ 187, subd. (a), 664)1 and 

admitted criminal street gang (§ 186.22, subd. (b)(1)) and firearm 

enhancement allegations (§ 12022.53, subds. (b) & (e)). On 

March 1, 2021 the superior court summarily denied Duarte’s 

petition for resentencing under section 1170.95, ruling Duarte 

was ineligible for relief because she had been convicted of 

attempted murder, not murder. 

While Duarte’s appeal was pending, the Legislature 

enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, 

ch. 551, § 2) (Senate Bill 775), effective January 1, 2022, which 

amended section 1170.95 to expressly include within its reach 

certain convictions for attempted murder and voluntary 

manslaughter. In light of this new legislation, we remand

Duarte’s case for the superior court to permit Duarte to amend 

her petition and, following amendment, to appoint counsel for 

Duarte and to determine in accordance with the procedures 

described in section 1170.95, subdivision (c), and People v. Lewis

(2021) 11 Cal.5th 952 (Lewis) whether Duarte has made a 

prima facie showing she is entitled to relief.

FACTUAL AND PROCEDURAL BACKGROUND

1. Duarte’s Convictions for Attempted Murder

According to testimony at Duarte’s preliminary hearing 

and admissions by Duarte at her plea hearing, Duarte drove a 

1 Statutory references are to this code.
3

member of the Happy Town criminal street gang and another 

man to Academy Avenue in Pomona. The men were sitting in the 

front and back passenger seats of Duarte’s vehicle. With the 

windows down, the men shot at, and wounded, several teenagers 

who had been riding a motor scooter outside a nearby residence.

Duarte pleaded guilty to two counts of attempted murder 

and admitted firearm and criminal street gang enhancements to 

both counts. Pursuant to the terms of a negotiated agreement, 

Duarte waived her right to appeal and was sentenced to an 

aggregate state prison term of 22 years eight months.

2. Duarte’s Petition for Resentencing

On December 31, 2020 Duarte, representing herself, filed a

petition for resentencing pursuant to section 1170.95 and 

requested the court appoint counsel to represent her in the 

resentencing proceedings. On the printed form petition Duarte 

checked boxes stating a complaint had been filed against her that 

allowed the prosecution to proceed under a theory of felony 

murder or murder under the natural and probable consequences 

doctrine and she could not now be convicted of first or second 

degree murder because of changes to sections 188 and 189 by 

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, 

ch. 1015) (Senate Bill 1437), but did not check the box stating she 

had pleaded guilty or no contest to first or second degree murder 

in lieu of going to trial. Duarte’s petition did not indicate she had 

been convicted of attempted murder. 

The superior court summarily denied the petition on 

March 1, 2021 without appointing counsel or requesting a 

response to the petition from the prosecutor. The court’s minute 

order stated, “Convicted violation being to attempted murder and 

not murder makes petition ineligible by law.” 
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DISCUSSION

Senate Bill 1437 substantially modified the law relating to 

accomplice liability for murder, eliminating the natural and 

probable consequences doctrine as a basis for finding a defendant 

guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843 

(Gentile)) and significantly narrowing the felony-murder 

exception to the malice requirement for murder. (§§ 188, 

subd. (a)(3), 189, subd. (e)(3); see Lewis, supra, 11 Cal.5th at 

p. 957.) It also authorized, through new section 1170.95, an 

individual convicted of felony murder or murder based on the 

natural and probable consequences doctrine to petition the 

sentencing court to vacate the conviction and be resentenced on 

any remaining counts if he or she could not have been convicted 

of murder because of Senate Bill 1437’s changes to the definition 

of the crime. (See Lewis, at p. 957; Gentile, at p. 843.) 

There was disagreement among the courts of appeal 

whether new section 188, subdivision (a)(3)’s prohibition against 

imputing malice to establish liability for murder other than in 

specified felony-murder cases also precluded finding a defendant 

guilty of attempted murder under the natural and probable 

consequences doctrine. Notwithstanding that conflict, all courts

of appeal recognized that, by its express terms, section 1170.95 as 

enacted by Senate Bill 1437 did not authorize a petition to vacate 

an attempted murder conviction. 

As amended effective January 1, 2022 by Senate Bill 775,

however, section 1170.95, subdivision (a), now provides, “A 

person convicted of felony murder or murder under the natural 

and probable consequences doctrine or other theory under which 

malice is imputed to a person based solely on that person’s 

participation in a crime, attempted murder under the natural and 
5

probable consequences doctrine, or manslaughter may file a 

petition with the court that sentenced the petitioner to have the 

petitioner’s murder, attempted murder, or manslaughter 

conviction vacated and to be resentenced on any remaining 

counts . . . .” (Italics added.)2

In her reply brief Duarte argues, with the passage of 

Senate Bill 775, the order summarily denying her petition for 

resentencing should be reversed and the cause remanded with 

directions to the superior court to appoint counsel and to 

thereafter reconsider her petition consistent with the provisions 

of section 1170.95 as newly amended.

3 In a supplemental letter 

2 In an uncodified statement of its intent in enacting Senate 

Bill 775, the Legislature declared the legislation “(a) Clarifies that 

persons who were convicted of attempted murder or manslaughter 

under a theory of felony murder and the natural probable 

consequences doctrine are permitted the same relief as those 

persons convicted of murder under the same theories. [¶] 

(b) Codifies the holdings of People v. Lewis (2021) 11 Cal.5th 952, 

961-970, regarding petitioners’ right to counsel and the standard for 

determining the existence of a prima facie case. [¶] (c) Reaffirms

that the proper burden of proof at a resentencing hearing under this 

section is proof beyond a reasonable doubt. [¶] (d) Addresses what 

evidence a court may consider at a resentencing hearing (clarifying 

the discussion in People v. Lewis, supra, at pp. 970-972).” (Stats. 

2021, ch. 551, § 1.)

3 In her opening brief Duarte argued the superior court’s 

summary denial of her petition without appointment of counsel 

violated the plain language of section 1170.95, subdivision (c), as 

well as her right to due process. She also argued Senate 

Bill 1437 applied to accomplice liability for attempted murder, 

not just murder, and the contrary interpretation of the legislation 

would violate her right to equal protection. The Attorney 

General in his respondent’s brief argued any error in not 
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brief filed at the request of this court, the Attorney General has 

agreed with Duarte’s recommendation, observing that the record 

on appeal “does not establish whether her convictions were 

necessarily based on an actual malice. [Citations.] Accordingly, 

she may be able to establish a prima facie showing of eligibility.” 

We agree with the request for a remand as well.

DISPOSITION

The postjudgment order denying Duarte’s section 1170.95 

petition is reversed. On remand the superior court is to permit 

Duarte to amend her petition to identify her convictions for 

attempted murder, appoint counsel for Duarte, order the 

prosecutor to file a response to the petition and provide Duarte 

an opportunity to file a reply, and determine whether Duarte has 

made a prima facie showing that she is entitled to relief in 

accordance with section 1170.95, subdivision (c), as amended by 

Senate Bill 775.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.

appointing counsel was harmless because Duarte was ineligible 

for relief as a matter of law and excluding individuals convicted 

of attempted murder from Senate Bill 1437’s ameliorative 

provisions was constitutional.