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Filed 1/21/22 P. v. Arenas CA4/2 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CESAR SAUL ARENAS et al.,
Defendant s and Appellant s
. E07 4088 (Super.Ct.No. RIF 1103487 )
OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions

. Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant Cesar Saul Arenas.
Rex Adam Williams , under appointment by the Court of Appeal, for Defendant and Appellant Eddie Gudino

. Xavier Becerra and Rob Bonta , Attorney s General, Lance E . Winters, Chief Assistant Attorney General, Julie L. Garland and Daniel Rogers , Assistant Attorney2

General, Eric A. Swenson and Heather M. Clark , Deputy Attorneys General, for Plaintiff and Respondent. Defendants and appellants Cesar Saul Arenas (Arenas) and Eddie Gudino (Gudino) pleaded guilty to attempted murder in 2011. In 2019, defendants petitioned the superior court to vacate their attempted murder convictions pursuant to Penal Code 1 former
section 1170.95, a resentencing statute enacted as part of Senate Bill No. 1437 (2017

- 2018 Reg. Sess. ; Stats 2018, ch. 1015, § 4, eff. Jan. 1, 2019 ). In a nutshell, that bill limited the
offense of murder under the felony

- murder rule to defendants who: (1) are the actual killer; (2) are not the actual killer, b ut who share the killer’s intent to kill, and aid and abet in the killing; or (3) are a major participant in a felony and who act with reckless
indifference to human life ; and it eliminated the offense of murder under the natural and probable consequences doctrine

. ( People v. Gentile (2020) 10 Cal.5th 830, 846, 848.) The superior court granted the People ’s motions to dismiss defendants’ petition s because , at that time, section 1170.95 d id not expressly apply to the offense of attempted murder

. On appeal, defendants argue d the reforms enacted by Senate Bill No. 1437 should necessarily apply to the offense of attempted murder under the natural and probable consequences doctrine because that offense is a lesser included offense of a completed
murder u nder the natural and probable consequences doctrine. And, they contend ed withholding the remedial effect of Senate Bill No. 1437 to attempted murderers violated the equal protection clauses of the federal and California constitutions. We affirmed the

1 All further statutory references are to the Penal Code unless otherwise indicated.3

dis missal of defendants’ petitions because, l ike every other court to address th ose question s in a published decision, this court ha d soundly rejected defendants’ arguments. The Supreme Court granted review on August 11, 2021. ( People v. Arenas et al. , S2692 32.) In the meantime, on October 5, 2021, the Governor signed into law Senate
Bill No. 775 (2021

- 2022 Reg. Sess.) to amend section 1170.95 and clarify that relief may be available under that statute to persons convict ed of attempted murder under the natural
and probable consequences doctrine. (§ 1170.95, subd. (a), as amend ed by Stats. 2021,
ch. 551 , § 2, eff. Jan. 1, 2022.) On December 22, 2021, the Supreme Court transferred the matter back to this court with directions to vacate our original opini on and reconsider the cause in light of Senate Bill 775. We vacated our original opinion and directed the parties to file supplemental briefs addressing the effect of Senate Bill No. 775. In their supplemental briefs, Arenas 2 and the People, as represent ed by the Attorney General, agreed we must reverse the orders dismissing the defendants’ petitions
and remand the matter for the trial court to determine, in the first instance, whether defendants made a prima facie showing of entitle ment to relief under a mended
section 1170.95 . We agree and so order.
I.
PROCEDURAL BACKGROUND In 2011, the People filed a felony complaint charging defendants with two cou nts of premeditated attempted murder and various additional offenses and sentencing

2 Gudino elected not to file a supplemental brief.4

allegations. As part of plea agreements with the prosecutor, defendants each pleaded guilty to one count of attempted murder without premeditation (§§ 1 87, subd. (a), 664,

su bd. (a), count 1) , and to one count of actively participating in a cr imin al street gang (§ 186.22, subd. (a), count 9); and they both admitted the sentencing allegation that the attempted murder alleged in count 1 was committed with the specific intent to promote,
further , and assist in the criminal activity of a criminal street gang (§ 186.22, subd. (a))

. In addition, Gudino admitted the sentencing allegations that he personally and intentionally discharged a firearm and cause d great bodily inju ry or death during the commission of the attempted murder alleged in count 1 (§§ 12022.53, subd. (d), 1192.7, subd. (c)(8)) , and he admitted to having suffered one prior prison term (§ 667.5,
subd. (b)).
The trial court sentenced Gudino on count 1 to state prison for the upper term of
nine years ; 10 years each for the gang and firearm enhancements, to be served consecutively with count 1; two years for count 9, to be served concurrently with count 1;
and one year for the prison prior, for a total determinat e term of 30 years. The court sentenced Arenas to state prison for the low term of five years on count 1; 10 years for the gang enhancement, to be served consecutively to with count 1; and two years for count 9, to be served concurrently with count 1, for a total determinate term of 15 years.
At the prosecutor’s request, the court dismiss ed , in the interest of justice , the remaining

counts and sentencing allegations in the complaint. (§ 1385.) Gudino timely appealed, but this court affirmed the judgment when his attorney filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 and People v. Wende5

(197 9) 25 Cal.3d 436 , indicating he found no arguable issues of reversible error . ( People
v. Gudino (Sept. 20, 2012, E055749) [ nonpub. opn.].) Arenas did not appeal. Effective January 1, 2019, Senate Bill No. 1437 amended sections 188 and 189 (Stats. 2018, ch. 1015, §§ 2, 3) to limit the application of the felony

- murder rule to persons who: (1) are the actual killer; (2) are not the actual killer, but who share the killer’s intent to kill, and aid and abet in the killing; or (3) are a major participant in a felony and who act with reckless indifference to human life ; and it eliminated the offense of murder under the natural and p robable consequences doctrine . (§§ 188, subd. (a)(3), 189, subd. (e)(1)

- (3) ; People v. Gentile , supra , 10 Cal.5th at pp. 846, 848 .) In addition, Senate Bill No. 1437 enacted former section 1170.95 (Stats. 2018, ch. 1015, § 4), which permit t ed persons pre viously convicted of first or second degree murder under the felony

murder rule or the natural and probable consequences doctrine, but who could not be so convicted after the amendments to sections 188 and 189 made by Senate Bill No. 1437, to petition the superior court to vacate their murder convictions and to resentence them on any remaining counts. On March 22 and April 5, 2019, respectively, Gudino and Arenas filed petitions for resentencing pursuant to former section 1170.95. Notwithstanding the fact the People had charged them with attempted premeditated murder , and they had pleaded guilty to attempted murder without premeditation, using a check

- box form , defendants alleged they had been charged with and pleaded guilty to first or second degree murder under the felony

- murder rule or under the natural and probable consequences doctrine , but that they could no longer be convicted of murder under either theory.6

The district attorney filed oppositions requesting the superior court strike or deny
the petition s on the ground Senate Bill No. 1437 was unconstitutional. In the alternative, the district attorney argued the superior court should summarily deny the petitions because defendants pleaded guilty to attempted murder and, therefore, they we re not eligible for relief under former section 1170.95. The superior court appointed counsel for defendants . T heir attorneys filed opposition s to the district attorney’s motion s to strike , arguing Senate Bill No. 1437 is
constitutional. The attorneys did not a ddress the district attorney’s alternative argument
that defendants we re ineligible for relief under former section 1170.95. At a hearing on the petitions, the district attorney orally moved to dismiss Arenas’s petition “because it does not involve murder. It’s only attempted murder.” The superior court noted that two appellate courts had recently held “attempted murder does not fall within the provision s of [ former section] 1170.95,” and “both of them have dealt with the constitutionality of that.” Beca use the superior court believed it was “obliged to follow” those decisions, the court indicated it was inclined to grant the prosecutor’s
motion to dismiss. Counsel for Arenas objected for the record, and the court dismissed the petition. Later, at the s ame hearing, the superior court granted the district attorney’s motion to dismiss Gudino’s petition for the same reason. 3

3 The superior court did not rule on the constitutionality of Senate Bill No. 1437. Like every other appellate court to address that issue in a published decision, this court has si nce rejected the same constitutional arguments made by the prosecutor in this case. ( People v. Johns (2020) 50 Cal.App.5th 46; People v. Lippert (2020) 53 Cal.App.5th 304.) There is no dispute on appeal that the bill is constitutional, so we need not add ress the issue further.7 II.
DISCUSSION On appeal, d efendants argue d former section 1170.95 applie d to the offense of attempted murder under the natural and probable consequences doctrine, and that excluding that offense would violate the equal protection clauses of the federal and
California constitutions. Because this and every other court to address those questions in published decisions had held Senate Bill No. 1437 did not apply to final judgments for attempted murder , and the exclusion of attempted murder did not offend equal protection principles, we affirmed the dismissals. As indicated, ante , w hile this appeal was pending in the Supreme Court, the Governor signed into law Senate Bill No. 775. In its uncodified statement of findings and declarations, the Legislature stated the bill “[c]larifies 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.” (Stats. 2021, ch. 551, § 1, subd. (a).) The
bill amended section 1170.95, subdivision (a), to provide: “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, att empted murder 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 be8

resentenced on any remaining counts . . . .” (§ 1170.95, subd. (a), italics added; as amended by Stats. 2021, ch. 551, § 2 , eff. Jan. 1, 2022 .) In his brief, Arenas argues the amendments made to section 1170.95 are ameliorative , apply retroactively to his petition , and we should reverse and remand the

matter for the trial court to reconsider his petition. The People agree , stating: “In light of [Senate Bill. No.] 775, the parties should have the opportunity to brief [in the trial court]
whether [defendant s have] ma de the requisite prima facie showing” of entitlement to
relief under section 1170.95. We too agree and so order.
III. DISPOSITION
The orders dismissing defendants’ petitions are reversed

. The matter is remanded
for the trial court to determine whether defendants have made a prima facie showing of
entitlement to relief under amended section 1170.95.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

RAMIREZ P. J.

MILLER J.