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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIA DUA RTE,

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.
Jonatha n 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, Supervising2

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, rulin g 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), effect ive January 1, 2022, which
amend ed 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 pri ma facie showing she is entitled to relief.

FACTUAL AND PROCEDURAL BACKGROUND

1. Duarte’s Convictions for A ttempted Murder According to testimony at Duarte’s preliminary hearing
and admissions by Duarte at her plea he aring , Duarte drove a

1 Statutory references are to this code.3

member of the Ha ppy Town criminal street gang and another man to Academy Avenue in Pomona. The men were sitting in the front and back passenger seats of Dua r te’s vehicle. With the windows down, the men shot at, and wounded, several teenagers
who had been ri d ing 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 appoi nt counsel to represent her in the resentencing proceedings. On the printed form petition Duarte
checked box es stating a complaint had been filed against her that allowed the prosecution to proceed under a theory of felony
murder or murder under the natur al and probable consequences
doctrin e and she could not now be convicted of first or second degree murder because of changes t o sections 188 and 189 by Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437) , but did not chec k 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 w ithout 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.”4 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 sign ificantly 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.) I t also authorized, through new section 1170.95, an individual convicted of felony mu rder 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 c hanges to the definition of the crime. (See Lewis , at p. 957; Gentile , at p. 843.)
Th ere 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 1 170.95 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 m urder 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 and5

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 brie f 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 con sistent 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, re garding 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) Addre sses 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 petiti on 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 contrar y interpretation of the legislation would violate her right to equal protection. The Attorney General in his respondent’s brief argued any error in not6

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 whet her 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 Duar te’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 pro vide Duarte an opportunity to file a reply, and determine whether Duarte has made a prima facie showing that she is entitled to relief i n accordance with section 1170.95, subdivision ( c ) , as amended by
Senate Bill 775

.

PERLUSS, P. J. W e concur:

S EGAL , J. FEUER, J.

appointing counsel was harmless because Duarte was ineligible for relief as a matter of law and excludi ng individuals convicted of attempted murder from Senate Bill 1437’s ameliorative provisions was constitutional.