Filed 2/22/22 P. v. Burns CA2/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

DONVAY LAMARR BURNS,

Defendant and Appellant.

 B308077 

 (Los Angeles County

 Super. Ct. No. BA348603)

 OPINION ON REMAND

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Frederick N. Wapner, 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 Pitney, Assistant 

Attorney General, Jonathan J. Kline and Kristen J. Inberg, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________
2

The trial court denied the Penal Code section 1170.951

petition filed by Donvay LaMarr Burns (appellant)to vacate the 

voluntary manslaughter conviction entered against him pursuant 

to a plea agreement. On appeal, he claimed that the trial court 

erred when it followed People v. Cervantes (2020) 44 Cal.App.5th 

884, 886 (Cervantes) and ruled that he was ineligible for relief 

because the statute applies to murder convictions but not 

voluntary manslaughter convictions based on no contest pleas. 

Alternatively, he contended that section 1170.95 violates equal 

protection (U.S. Const., 14th Amend., Cal. Const., art. I, § 7) and 

substantive due process. 

We affirmed in our prior opinion issued on October 12, 

2021, because the operative version of section 1170.95, by its 

express terms, did not apply to manslaughter convictions. On 

December 22, 2021, our Supreme Court granted appellant’s 

petition for review and transferred the matter back to us with 

directions to vacate our decision and reconsider the cause based 

on changes to the law after section 1170.95 was amended 

effective January 1, 2022, by Senate Bill No. 775 (2021-2022 Reg. 

Sess.) (Stats. 2021, ch. 551). That amendment makes section 

1170.95 applicable to manslaughter convictions that were entered 

pursuant to plea agreements.

We reverse and remand to the trial court with directions to 

conduct a new prima facie review hearing under section 1170.95, 

subdivision (c).

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

FACTS

Appellant was charged with multiple crimes, including

murder (§ 187) and assault with a firearm (§ 245, subd. (a)(2)), in 

an amended information containing various enhancement 

allegations.2 On May 3, 2012, appellant pleaded no contest to 

voluntary manslaughter (§ 192, subd. (a)) and assault with a 

firearm. He admitted gang allegations (§ 186.22, subd. (b)(1)(C)) 

and gun allegations (§ 12022.5, subd. (a)). The trial court 

sentenced him to an aggregate determinate prison term of 25 

years, and an additional concurrent prison term of three years.

On April 29, 2019, appellant filed his petition for 

resentencing. At the prima facie review hearing under section 

1170.95, subdivision (c), appellant’s counsel argued that the 

Legislature intended for a defendant to be eligible for relief if he 

was facing a murder charge based on the natural and probable 

consequences theory and then pleaded guilty to voluntary 

manslaughter in lieu of trial. The trial court disagreed based on 

Cervantes and denied the petition.

This appeal followed.

DISCUSSION

As amended by Senate Bill No. 775, section 1170.95,3

subdivision (a) provides that a “person convicted of felony murder 

or murder under the natural and probable consequences doctrine 

or other theory under which is imputed to a person based solely 

on that person’s participation in a crime, attempted murder 

2 In the original petition, he was charged with committing 

murder with a codefendant.

3 Section 1170.95 was added by Senate Bill No. 1437 (2017-

2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4).
4

under the natural and 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 when all of the following conditions apply: [¶]

(1) A complaint or information, or indictment was filed against 

the petitioner that allowed the prosecution to proceed under a 

theory of felony murder, 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, or attempted murder under the natural and probable 

consequences doctrine. [¶] (2) The petitioner was convicted of 

murder, attempted murder or manslaughter following a trial or 

accepted a plea offer in lieu of a trial at which the petitioner 

could have been convicted of murder or attempted murder. [¶]

(3) The petitioner could not presently be convicted of murder or 

attempted murder because of changes to Section 188 or 189 made 

effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3), bolding 

omitted.)

Section 1170.95, subdivision (c) provides: “Within 60 days 

after service of a petition that meets the requirements set forth 

in subdivision (b), the prosecutor shall file and serve a 

response. The petitioner may file and serve a reply within 30 

days after the prosecutor’s response is served. . . . After the 

parties have had an opportunity to submit briefings, the court 

shall hold a hearing to determine whether the petitioner has 

made a prima facie case for relief. If the petitioner makes a 

prima facie showing that the petitioner is entitled to relief, the 

court shall issue an order to show cause. If the court declines 
5

to make an order to show cause, it shall provide a statement 

fully setting forth its reasons for doing so.”

As amended, section 1170.95 applies to voluntary 

manslaughter convictions entered after a defendant accepted a 

plea offer in lieu of trial. The amended version of section 1170.95 

supersedes Cervantes, which held “that section 1170.95 applies 

only to murder convictions[.]” (Cervantes, supra, 44 Cal.App.5th 

at p. 886.) As a consequence, the trial court’s reason for denying 

appellant’s petition at the prima facie review stage of the inquiry

no longer supports the denial order and appellant is entitled to 

another hearing.

DISPOSITION

The order denying appellant’s section 1170.95 petition is 

reversed. The matter is remanded with directions to the trial 

court to conduct another prima facie review hearing pursuant to 

section 1170.95, subdivision (c).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

ASHMANN-GERST

We concur:

________________________, P. J.

LUI

________________________, J.

CHAVEZ