People v. Wilkins ( 2021 )

Filed 8/23/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078004
Plaintiff and Respondent,
v. (Super. Ct. No. FVI800686-1)
VIRGIL JEROD WILKINS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Bernardino
County, J. David Mazurek, Judge. Reversed and remanded.
Dawn S. Mortazavi, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha
Cortina and Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and
Respondent.
Jason Anderson, District Attorney, and Cary Epstein, Deputy District
Attorney, as Amicus Curiae on behalf of Plaintiff and Respondent.
I
INTRODUCTION
“The Eighth Amendment to the United States Constitution, which
prohibits the infliction of ‘cruel and unusual punishments,’ imposes various
restrictions on the use of the death penalty as a punishment for crime. One
such restriction is that any legislative scheme defining criminal conduct for
which death is the prescribed penalty must include some narrowing principle
that channels jury discretion and provides a principled way to distinguish
those cases in which the death penalty is imposed from the many cases in
which it is not. A death-eligibility criterion that fails to meet this standard is
deemed impermissibly vague under the Eighth Amendment.” (People v.
Bacigalupo (1993) 6 Cal.4th 457, 462 (Bacigalupo).) In California, special
circumstance criteria codified in Penal Code section 190.2, including the
felony-murder special circumstance set forth in subdivision (a)(17), perform
the narrowing function demanded by the Eighth Amendment. 1
In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg.
Sess.), which amended the mens rea requirements for the crime of murder
and restricted the circumstances under which a person can be liable for
murder under the felony-murder rule. This appeal requires us to decide
whether Senate Bill No. 1437 eradicated the narrowing function traditionally
performed by the felony-murder special circumstance statute.
The trial court found it did, thus rendering the felony-murder special
circumstance statute inoperable in practice. Based on this finding, the court
found Senate Bill No. 1437 unconstitutionally amended a voter-approved
initiative pertaining to special circumstances. After finding Senate Bill
No. 1437 unconstitutional, the court struck a petition filed by defendant
1 Further undesignated statutory references are to the Penal Code.
2
Virgil Jerod Wilkins to have his first degree murder conviction vacated under
section 1170.95, the resentencing provision of Senate Bill No. 1437.
We conclude the felony-murder special circumstance statute continues
to narrow the class of death-eligible murderers notwithstanding the
enactment of Senate Bill No. 1437. It circumscribes the overall class of
murderers by rendering a mere subclass of murderers—namely, those
convicted of first degree felony murder—eligible for the death penalty. Thus,
we conclude Senate Bill No. 1437 neither repealed the felony-murder special
circumstance statute in practice nor amended any voter-approved initiative.
Given our conclusions, we reverse the trial court order striking the
defendant’s resentencing petition and remand the matter for further
proceedings pursuant to section 1170.95, subdivision (c).
II
BACKGROUND
A
Defendant’s Murder Conviction
In 2008, a jury convicted the defendant of arson (§ 451, subd. (d)) and
the first degree murder of Alberto Cervantes (§ 187, subd. (a)). The trial
court sentenced the defendant to prison for a term of 25 years to life for the
murder conviction, plus a consecutive term of eight months for the arson
conviction. On direct appeal, we affirmed the judgment and the Supreme
Court denied review. (People v. Meeks (Sept. 7, 2010, D057193) [nonpub.
opn.] review den. Dec. 15, 2012, S187238.)
B
Senate Bill No. 1437
In 2018, the Legislature enacted Senate Bill No. 1437, effective
January 1, 2019. (Stats. 2018, ch. 1015.) The law’s stated purpose was “to
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amend 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.” (Id., § 1, subd. (f).)
Senate Bill No. 1437 effectuated this goal by amending section 188,
which defines malice, and section 189, which defines the degrees of murder.
(Stats. 2018, ch. 1015, § 3.) Amended section 188 states: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal
in a crime shall act with malice aforethought. Malice shall not be imputed to
a person based solely on his or her participation in a crime.” (§ 188,
subd. (a)(3).) Amended section 189 states: “A participant in the perpetration
or attempted perpetration of a felony listed in subdivision (a) in which a
death occurs is liable for murder only if one of the following is proven: [¶]
(1) The person was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the commission
of murder in the first degree. [¶] [or] (3) The person was a major participant
in the underlying felony and acted with reckless indifference to human life,
as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).)
Senate Bill No. 1437 also enacted section 1170.95, which provides
resentencing relief to eligible defendants. Under subdivision (a), “[a] person
convicted of felony murder or murder under a natural and probable
consequences theory may file a petition” with the sentencing court to have his
or her murder conviction vacated and to be resentenced on any remaining
counts “when all of the following conditions apply: [¶] (1) A complaint,
information, or indictment was filed against the petitioner that allowed the
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prosecution to proceed under a theory of felony murder or murder under the
natural and probable consequences doctrine. [¶] (2) The petitioner was
convicted of first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder. [¶] (3) The petitioner could not be convicted
of first or second degree murder because of changes to Section 188 or 189
made effective January 1, 2019” pursuant to Senate Bill No. 1437.
Subdivision (c) discusses the trial court’s prima facie review of a
resentencing petition. It states as follows: “The court shall review the
petition and determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of [section 1170.95]. If the petitioner
has requested counsel, the court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a response within 60 days of
service of the petition and the petitioner may file and serve a reply within 30
days after the prosecutor response is served. These deadlines shall be
extended for good cause. 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.”
(§ 1170.95, subd. (c).)
If an order to show cause issues, the court generally must “hold a
hearing to determine whether to vacate the murder conviction and to recall
the sentence and resentence the petitioner on any remaining counts in the
same manner as if the petitioner had not been previously sentenced, provided
that the new sentence, if any, is not greater than the initial sentence.”
(§ 1170.95, subd. (d)(1)–(2).) At the hearing, the prosecution bears the
burden of proving the petitioner is ineligible for resentencing beyond a
reasonable doubt. (Id., subd. (d)(3).) “The prosecutor and the petitioner may
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rely on the record of conviction or offer new or additional evidence to meet
their respective burdens.” (Ibid.)
C
Defendant’s Resentencing Petition
After Senate Bill No. 1437 went into effect, the defendant filed a
petition to have his murder conviction vacated and to be resentenced under
section 1170.95.
The district attorney moved to strike the defendant’s resentencing
petition. He argued the petition should be stricken because Senate Bill
No. 1437 amended two voter-approved initiatives, Proposition 7 (Prop. 7, as
approved by voters, Gen. Elec. (Nov. 7, 1978)), 2 and Proposition 115 (Prop.
115, as approved by voters, Primary Elec. (June 5, 1990)), 3 in violation of
2 Proposition 7 increased the punishment for first degree murder from
life imprisonment with parole eligibility after seven years to a term of 25
years to life, and increased the punishment for second degree murder from a
term of five, six, or seven years to a term of 15 years to life. (Prop. 7, §§ 1–2.)
3 Proposition 115 augmented the list of predicate felonies on which a first
degree felony murder charge may be based. (Prop. 115, § 9.) It also amended
the special circumstance statute to require a sentence of death or life without
the possibility of parole in two situations where the offender is not the actual
killer—(1) when he or she aids or supports a killer and acts with the intent to
kill; and (2) when he or she is a major participant in a specified felony during
which a death occurs, and acts with reckless indifference to human life.
(Prop. 115, § 10.) Prior to the passage of Proposition 115, “state law made
only those felony-murder aiders and abettors who intended to kill eligible for
a death sentence.” (People v. Banks (2015) 61 Cal.4th 788, 798.)
6
Article II, section 10 of the California Constitution. 4 According to the district
attorney, Senate Bill No. 1437 amended the initiatives by undoing the
penalties for conduct that amounted to murder at the time the electorate
passed the initiatives. The district attorney also argued the petition should
be stricken because section 1170.95 violated the separation of powers
doctrine and Marsy’s Law, and “an independent review of the evidence”
purportedly showed the defendant was ineligible for relief.
The trial court appointed the public defender’s office to represent the
defendant in the resentencing proceeding. Shortly after the appointment, a
conflict was declared and conflict counsel was appointed for the defendant.
The defendant filed a pro per opposition to the motion to strike. The
opposition brief summarized Senate Bill No. 1437, without addressing the
law’s constitutionality or the defendant’s eligibility for relief. The record does
not disclose why the defendant filed his opposition brief pro se, apparently
without the assistance of his appointed counsel.
Before the court ruled on the motion to strike, the district attorney filed
a second motion to strike. He acknowledged this court’s intervening decisions
in People v. Lamoureux (2019) 42 Cal.App.5th 241 (Lamoureux) and Gooden,
supra, 42 Cal.App.5th 270 rejected the constitutional claims he made in the
first motion to strike. Nonetheless, he argued the petition should be stricken
for an additional reason not previously raised in the first motion to strike.
As the district attorney explained, Senate Bill No. 1437 amended the
state’s murder statute so that a defendant may now be convicted of first
4 “Under article II, section 10 of the California Constitution, a statute
enacted by voter initiative may be amended or repealed by the Legislature
only with the approval of the electorate, unless the initiative statute provides
otherwise.” (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270,
279 (Gooden).)
7
degree felony murder as an aider and abettor only if he or she aids and abets
a murder with the intent to kill, or acts with reckless indifference as a major
participant of a felony in which a death occurs—elements that are identical to
those dictating whether a murderer is eligible for the death penalty under the
felony-murder special circumstance statute. According to the district
attorney, this overlap means the felony-murder special circumstance statute
no longer narrows the class of death-eligible murderers—a deficiency that
effectively “eliminat[es] the People’s ability to seek death against accomplices
to felony murder.” The district attorney claimed Senate Bill No. 1437 thus
repealed the felony-murder special circumstance statute in practice. He
asserted this repeal, in turn, amended Proposition 7 and Proposition 115
because the voters who approved those initiatives intended some felony
murder aiders and abettors to be eligible for the death penalty.
At the hearing on the defendant’s petition, the court found Senate Bill
No. 1437 was unconstitutional for the reasons stated in the district attorney’s
second motion to strike. The court opined that “any aider and abettor liable
for first degree … felony murder under [Senate Bill No. 1437] is
automatically eligible to also receive the death penalty since the definition
and elements for felony murder under [Senate Bill No. 1437] and the special
circumstance are now not just similar but they are identical.” The court
further opined that “the effect of [Senate Bill No. 1437] is that the felony
murder special circumstance under [section] 190.2(a)(17) and also [section]
190.2(c) and (d) no longer narrows the class of first degree felony [murderers]
eligible for the death penalty as constitutionally required. [¶] This, in turn,
invalidates and thereby effectively repeals the felony murder special
circumstance [statute]. This, of course, the legislature cannot do since [that]
provision[] [was] enacted in Proposition 115.” On these grounds, the court
8
struck the defendant’s resentencing petition without addressing whether he
made a prima facie showing of entitlement to relief.
III
DISCUSSION
A
Standard of Review
This appeal requires us to assess the constitutionality of Senate Bill
No. 1437. The defendant and the Attorney General contend Senate Bill
No. 1437 is constitutional because the felony-murder special circumstance
statute still performs its Eighth Amendment narrowing function.
With our permission, the district attorney filed an amicus curiae brief
arguing Senate Bill No. 1437 is unconstitutional. He claims Senate Bill
No. 1437 is unconstitutional because it purportedly destroyed the narrowing
function of the felony-murder special circumstance statute.
The constitutionality of Senate Bill No. 1437 presents a legal issue to
which we apply a de novo standard of review. (People v. Bucio (2020) 48
Cal.App.5th 300, 307.) We will presume Senate Bill No. 1437 is valid and we
will invalidate the law only if a constitutional infirmity is clearly and
unmistakably established. (See Ivory Education Institute v. Department of
Fish & Wildlife (2018) 28 Cal.App.5th 975, 981.)
B
The District Attorney Does Not Have Standing to
Vicariously Assert the Defendant’s Eighth Amendment Rights
At the outset, we note there appears to be some confusion among the
parties as to whether the district attorney believes Senate Bill No. 1437 is
unconstitutional, as applied in this case, because it violates the defendant’s
Eighth Amendment rights. To the extent the district attorney challenges
Senate Bill No. 1437 on this basis, we conclude he lacks standing to do so.
9
The rights enumerated in the Eighth Amendment are personal to the
defendant. (See Miller v. Alabama (2012) 567 U.S. 460, 469 [“The Eighth
Amendment’s prohibition of cruel and unusual punishment ‘guarantees
individuals the right not to be subjected to excessive sanctions.’ ”], italics
added; accord Los Angeles Police Dept. v. United Reporting Pub. Corp. (1999)
528 U.S. 32, 39 [“the personal nature of constitutional rights” is a “ ‘cardinal
principle’ of our constitutional order”].) Therefore, as a general rule, no party
other than the defendant himself or herself may challenge a statute on
grounds that it impinges upon his or her Eighth Amendment rights. (See In
re Cregler (1961) 56 Cal.2d 308, 313 [“one will not be heard to attack a
statute on grounds that are not shown to be applicable to himself”].)
This case does not present an exception to that general rule. The
district attorney does “not represent the particularized interests of persons
who have been accused of criminal offenses or petitioners seeking relief from
convictions,” such as the defendant. (Lamoureux, supra, 42 Cal.App.5th at
p. 267.) Thus, the district attorney does not have standing to challenge
Senate Bill No. 1437 based on the law’s potential infringement on the
defendant’s Eighth Amendment rights. (Ibid. [district attorney did not have
standing to challenge section 1170.95 based on the law’s alleged infringement
on petitioners’ constitutional rights]; accord Whitmore v. Arkansas (1990) 495
U.S. 149, 156–161 [third party lacked standing to assert Eighth Amendment
violations on behalf of capital defendant].)
C
Senate Bill No. 1437 Does Not Create a Narrowing Problem
We now turn to what we discern to be the district attorney’s main
argument on appeal. He claims Senate Bill No. 1437 amended Proposition 7
and Proposition 115 by repealing the felony-murder special circumstance
10
statute. According to the district attorney, Senate Bill No. 1437 repealed the
felony-murder special circumstance statute because it eradicated the
constitutionally-required narrowing function previously performed by the
felony-murder special circumstance statute. As we will explain, we disagree.
“The United States Supreme Court’s capital punishment jurisprudence
rests on the principle that ‘ “ ‘the infliction of a sentence of death under legal
systems that permit this unique penalty to be ... wantonly and ... freakishly
imposed’ ” ’ violates the Eighth and Fourteenth Amendments to the federal
Constitution.” (Bacigalupo, supra, 6 Cal.4th at p. 465, quoting Lewis v.
Jeffers (1990) 497 U.S. 764, 774.) To satisfy the Eighth Amendment, a state’s
capital punishment scheme must narrow, or “circumscribe[,] the class of
persons eligible for the death penalty.” (Zant v. Stephens (1983) 462 U.S.
862, 879.) “Additionally, it must afford some objective basis for
distinguishing a case in which the death penalty has been imposed from the
many cases in which it has not. [Citation.] A legislative definition lacking
‘some narrowing principle’ to limit the class of persons eligible for the death
penalty and having no objective basis for appellate review is deemed to be
impermissibly vague under the Eighth Amendment.” (Bacigalupo, at p. 465.)
In California, capital cases proceed in “separate phases.” (Bacigalupo,
supra, 6 Cal.4th at p. 467, citing § 190.1.) “At the initial phase of the trial,
the trier of fact decides the issue of defendant’s guilt or innocence of first
degree murder. If the defendant is found guilty, a determination must be
made as to the existence of any ‘special circumstances.’ ” (Ibid., citing
§§ 190.1, 190.2.) “If the trier of fact finds at least one alleged special
circumstance to be true, the case proceeds to the ‘penalty’ phase of the trial”
during which the trier of fact “select[s] the punishment for [the] defendant
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who has been found to be within the narrowed class of murderers for whom
death would be an appropriate penalty.” (Id. at pp. 467, 468.)
The special circumstance of relevance here is the felony-murder special
circumstance, which applies when a murder is committed “while the
defendant was engaged in, or was an accomplice in, the commission of, [or]
attempted commission of,” an enumerated felony. (§ 190.2, subd. (a)(17).)
The felony-murder special circumstance statute applies to a nonkiller if he or
she aided and abetted in the commission of murder with the intent to kill (id.,
subd. (c)), or aided and abetted in the commission of the underlying felony
with reckless indifference to human life as a major participant (id., subd. (d)).
Under California’s capital sentencing scheme, the special
circumstances perform the narrowing function required by the Eighth
Amendment. (Bacigalupo, supra, 6 Cal.4th at p. 467.) On numerous
occasions, our Supreme Court has rejected arguments that the state’s death
penalty scheme, and the felony-murder special circumstance statute in
particular, fail to narrow the class of death-eligible defendants in violation of
the Eighth Amendment. (See, e.g., People v. Schultz (2020) 10 Cal.5th 623,
682; People v. Johnson (2016) 62 Cal.4th 600, 654–655; People v. Covarrubias
(2016) 1 Cal.5th 838, 934; People v. Merriman (2014) 60 Cal.4th 1, 105; People
v. Scott (2011) 52 Cal.4th 452, 496; People v. Pollock (2004) 32 Cal.4th 1153,
1195–1196.) These Supreme Court decisions are binding on this court. (See
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The district attorney acknowledges these precedents, but contends they
are not controlling because they did not decide whether the felony-murder
special circumstance statute still performs its narrowing function after the
enactment of Senate Bill No. 1437. According to the district attorney, the
felony-murder special circumstance statute no longer winnows the class of
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death eligible murderers because the elements of first degree felony murder
(§ 189, subd. (e)) are now identical to the elements of the felony-murder
special circumstance statute (§ 190.2, subds. (a)(17), (c), (d)). In other words,
the district attorney claims the felony-murder special circumstance statute
no longer performs a narrowing function because every person who is
convicted of first degree felony murder is now eligible for the death penalty
under the felony-murder special circumstance statute.
We are not persuaded by the district attorney’s argument. As the
Attorney General correctly notes, our role is not to ask whether a given
special circumstance narrows an already-narrowed subset of murderers (first
degree murderers) who have been found guilty of murder under one
particular theory of liability (felony murder). Rather, our task is to
determine whether the state’s capital punishment law genuinely narrows the
entire class of murderers to a subclass of death-eligible murderers. (See
People v. Beames (2007) 40 Cal.4th 907, 934 (Beames) [“Because the special
circumstances listed in section 190.2 apply only to a subclass of murderers,
not to all murderers [citation], there is no merit to defendant’s contention …
that our death penalty law is impermissibly broad.”]; Tuilaepa v. California
(1994) 512 U.S. 967, 972 [to satisfy the Eighth Amendment, an aggravated
circumstance “may not apply to every defendant convicted of a murder; it
must apply only to a subclass of defendants convicted of murder”]; accord
People v. Landry (2016) 2 Cal.5th 52, 108 [“There is no requirement at the
eligibility stage that a narrowly circumscribed class of defendants for whom
the death penalty is reasonably justified be further distinguished according to
the particular circumstances that led to their eligibility.”].)
The felony-murder special circumstance statute still performs this
narrowing function, even after the enactment of Senate Bill No. 1437. It
13
makes a subclass of murderers—first degree felony murderers—death
eligible. It does not apply to other murderers such as second degree
murderers or simple murderers. Because the statute renders a mere subset
of murderers eligible for the death penalty, it sufficiently narrows the overall
class of murderers as required by the Eighth Amendment. (See People v.
Bonillas (1989) 48 Cal.3d 757, 780 [“the statutory scheme making felony
murder but not simple murder death eligible does not violate the federal
Constitution”]; People v. Anderson (1987) 43 Cal.3d 1104, 1147–1148,
superseded by statute on other grounds as stated in People v. Mil (2012) 53
Cal.4th 400, 408–409 [“[B]y making the felony murderer but not the simple
murderer death-eligible, a death penalty law furnishes the ‘meaningful basis
[required by the Eighth Amendment] for distinguishing the few cases in
which [the death penalty] is imposed from the many cases in which it is
not.’ ”].)
Our conclusion is not altered by the fact the elements of first degree
felony murder are identical to the elements dictating death eligibility under
the felony-murder special circumstance statute. As our Supreme Court has
made clear, overlapping culpability and special circumstance elements—even
identical ones—do not offend the Eighth Amendment. (People v. Johnson
(2016) 62 Cal.4th 600, 636 [“the amended lying-in-wait special circumstance
would satisfy federal constitutional requirements for death eligibility even
were the amendment to have made the special circumstance identical to
lying-in-wait first degree murder”]; People v. Catlin (2001) 26 Cal.4th 81, 158
[“first degree murder liability and special circumstance findings may be
based upon common elements without offending the Eighth Amendment”];
see Lowenfield v. Phelps (1988) 484 U.S. 231, 246 [“the fact that the
14
aggravating circumstance duplicate[s] one of the elements of the crime does
not make [the] sentence constitutionally infirm”].)
Nor is our conclusion altered by the district attorney’s claim that the
felony-murder special circumstance statute fails to perform a narrowing
function because felony murder “occurs at much greater frequency [than]
other murders,” such that a disproportionately high percentage of convicted
murderers are now death eligible under the felony-murder special
circumstance statute. “[A]lthough at one time the United States Supreme
Court suggested that a constitutionally valid death penalty law must exclude
most murders from eligibility for the death penalty, that is no longer the
case.” (Beames, supra, 40 Cal.4th at p. 934.) Given this clarification, our
Supreme Court has repeatedly rejected statistics-based overbreadth
challenges like the one the district attorney presents here. (People v. Miles
(2020) 9 Cal.5th 513, 605; Beames, at pp. 933–934; People v. Vieira (2005) 35
Cal.4th 264, 303–304; People v. Jones (2003) 30 Cal.4th 1084, 1127–1128.)
These precedents compel us to reject the district attorney’s argument. 5
In sum, the felony-murder special circumstance statute circumscribes
the total class of murderers in our state to a subset of death-eligible
murderers—specifically, to individuals convicted of first degree felony
murder. Senate Bill No. 1437 did nothing to change this fact. Therefore, the
felony-murder special circumstance statute continues to perform a narrowing
function notwithstanding the enactment of Senate Bill No. 1437. It follows
that Senate Bill No. 1437 did not repeal the felony-murder special
circumstance statute or amend the voter-approved initiatives at issue.
5 The district attorney’s overbreadth argument is unpersuasive for
another reason. The district attorney does not cite any evidence from the
appellate record or legal authority to support his claims regarding the
purported prevalence of felony murder relative to other types of murder.
15
D
Application to Defendant’s Case
The trial court struck the defendant’s resentencing petition based
solely on its finding that Senate Bill No. 1437 was unconstitutional. It did
not assess whether the defendant made a prima facie showing of entitlement
to relief. Further, the parties and the district attorney present no arguments
on appeal concerning the sufficiency of the defendant’s prima facie showing.
Therefore, we reverse the order striking the defendant’s petition and remand
the matter for further proceeding pursuant to section 1170.95, subdivision (c).
IV
DISPOSITION
The order is reversed and the matter is remanded for the trial court to
conduct a prima facie review of the defendant’s resentencing petition under
Penal Code section 1170.95, subdivision (c).
McCONNELL, P. J.
WE CONCUR:
DATO, J.
GUERRERO, J.
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