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Filed 3/8/22 P. v. Ellis CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNY LEE ELLIS,

Defendant and Appellant.

C094278

(Super. Ct. No. 13F02059)

In 2014, defendant Kenny Lee Ellis was sentenced to 15 years in prison for 

attempted murder. When he recently sought resentencing under Penal Code1

section 1170.95, the trial court summarily denied his petition on the basis that the

provision does not apply to the crime of attempted murder. Although that was true when 

the trial court made its ruling in 2021, as of January 1, 2022, section 1170.95 now applies 

to defendants who were convicted of attempted murder under the natural and probable 

consequences doctrine. (Senate Bill No. 775 (2020-2021 Reg. Sess.) (Stats. 2021, 

ch. 551, § 2).) In light of these changes, we will reverse the trial court’s order and 

remand for further proceedings. 

1 Undesignated section references are to the Penal Code. 
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FACTUAL AND PROCEDURAL BACKGROUND

I

Defendant’s Case

Defendant and codefendant Heriberto Elias Mendoza were charged with attempted 

murder and assault with a deadly weapon (a knife). It was further alleged with respect to 

both charges that the two defendants personally inflicted great bodily injury upon the 

victim and personally used a deadly and dangerous weapon (a knife). It was also alleged 

defendant had a prior serious felony and strike. 

In September 2014, defendant pled no contest to attempted murder without 

premeditation and admitted he had a prior serious felony and a prior strike. Per the 

parties’ agreement, the trial court, in October 2014, sentenced defendant to prison for an 

aggregate term of 15 years, as follows: five years for the attempted murder doubled to 

ten years due to the prior strike plus five years for the prior serious felony. The trial court 

also imposed various fines and fees. Defendant did not appeal his conviction.

II

Defendant’s Petition

In March 2021, defendant filed a petition for resentencing under section 1170.95. 

In his petition, defendant argued that an information had been filed against him that 

allowed the prosecution to proceed under a theory of felony murder or murder under the 

natural and probable consequences doctrine, that he pled no contest to first or second 

degree murder in lieu of going to trial because he believed he could have been convicted 

of first or second degree murder at trial pursuant to the felony-murder rule or the natural 

and probable consequences doctrine, that he could not now be convicted of first or 

second degree murder based on the recent changes to sections 188 and 189, that he was 

not the actual killer, that he was not a major participant in the felony or he did not act 

with reckless indifference to human life during the course of the crime or felony, and that 

the victim was not a peace officer. He also requested the court appoint counsel. 
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In April 2021, the trial court appointed counsel for defendant. 

Later that month, the prosecution filed a response to defendant’s petition, arguing 

defendant was ineligible for relief as a matter of law because he was convicted of 

attempted murder, and former section 1170.95 only applied to murder. Defendant 

disagreed in a reply brief and argued the prosecution’s theory of the case was that 

defendant aided and abetted an assault, meaning his liability for attempted murder was 

based on the natural and probable consequences theory. 

In May 2021, the trial court denied defendant’s petition, reasoning that defendant 

was ineligible as a matter of law because former section 1170.95 did not provide relief 

for those convicted of attempted murder. 

DISCUSSION

Defendant contends the trial court’s denial order must be reversed because, while 

his appeal was pending, the Legislature amended section 1170.95 to apply to the crime of 

attempted murder. The People argue defendant’s claim is not ripe for adjudication but 

acknowledges remand “may be appropriate” if we are inclined to apply the new 

legislation to defendant’s case. We agree with defendant and will remand the matter.

Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on 

January 1, 2019, “amend[ed] the felony murder rule and the natural and probable 

consequences doctrine, as it relates to murder, to ensure that murder liability is not 

imposed on a person who is not the actual killer, did not act with the intent to kill, or was 

not a major participant in the underlying felony who acted with reckless indifference to 

human life.” (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Gentile (2020) 10 Cal.5th 

830, 842.) It also added former section 1170.95, which allowed those convicted of felony 

murder or murder under the natural and probable consequences theory to petition the trial 

court to vacate and resentence the defendant. (Former § 1170.95, subd. (a).) “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.” (Former § 1170.95, subd. (c).)
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Senate Bill No. 775 amended section 1170.95 to clarify that the petition process 

now also applies to persons previously convicted of attempted murder or manslaughter 

under a felony murder or natural and probable consequences theory. (§ 1170.95, 

subd. (a).) The change applies to acts predating its enactment as either an ameliorative 

statute under In re Estrada (1965) 63 Cal.2d 740, 748 or a clarification of law (Western 

Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243; People v. Lee (2018) 

24 Cal.App.5th 50, 57). Under either theory, defendant is entitled to the benefit of the 

new provisions to section 1170.95.

In his petition, defendant stated he could not now be convicted of his crimes based 

on the recent changes to section 188 and 189. The trial court denied defendant’s petition 

because former section 1170.95 did not apply to attempted murder convictions. Given 

that Senate Bill No. 775 has now clarified that section 1170.95 does apply to attempted 

murder convictions, defendant may be entitled to relief and we must reverse the order 

denying relief and remand for further proceedings.

DISPOSITION

The order denying defendant’s petition for recall and resentencing is reversed. 

The matter is remanded for further proceedings consistent with this opinion.

/s/ 

Robie J.

We concur:

/s/ 

Blease, Acting P. J.

/s/ 

Hoch, J.