People v. Rivers CA2/8 ( 2023 )

Filed 7/21/23 P. v. Rivers CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT
THE PEOPLE, B324417
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA123495)
v.
JUSTICE RIVERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Rob B. Villeza, Judge. Reversed and remanded.
Ellen M. Matsumoto, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan S. Pithey, Assistant Attorney
General, Stephanie A. Miyoshi and Kathy S. Pomerantz, Deputy
Attorneys General, for Plaintiff and Respondent.
_____________________________
Appellant Justice Rivers appeals from the superior court’s
order denying his petition for resentencing under Penal Code
section 1172.61 as to his attempted murder conviction. Appellant
contends, and the People concede, that the superior court’s order
should be reversed for the court to consider section 1172.6’s
recent amendments. We agree and therefore reverse the superior
court’s order denying Appellant’s resentencing petition and
remand for the court to consider the petition.
BACKGROUND
In 2019, Appellant and two other codefendants were
involved in a shooting at an apartment complex in Pomona,
California. In 2020, the Los Angeles County District Attorney’s
Office charged Appellant with five counts of attempted murder
(§§ 664, 187, subd. (a)), five counts of shooting at an inhabited
dwelling (§ 246), and one count of second degree robbery (§ 211).
Appellant received a firearm enhancement for each attempted
murder count under section 12022.53, subdivisions (b), (c) and
(e)(1), as well as a gang enhancement under section 186.22,
subdivision (b)(1)(C). As to each count of shooting at an
inhabited dwelling and the robbery count, Appellant also received
a firearm enhancement under section 12022.5, subdivision (a),
and a gang enhancement under section 186.22, subdivision (b)(4).
As to the robbery count, Appellant received a firearm
enhancement under section 12022.53, subdivisions (b) and (e)(1),
and a gang enhancement under section 186.22, subdivision
(b)(1)(C).
On March 9, 2021, Appellant pleaded no contest to one
count of attempted murder and one count of second degree
1 All citations are to the Penal Code unless noted otherwise.
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robbery. The trial court sentenced Appellant to a total of nine
years in prison.
Before his plea, Senate Bill No. 1437 (2017–2018 Reg.
Sess.) (Senate Bill 1437) amended California law 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, § l, subd. (f).)
Senate Bill 1437 also allowed defendants who were convicted
under the prior murder statutes to petition for resentencing.
Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775) later
extended resentencing relief to people convicted of attempted
murder, but it was not yet in effect at the time of Appellant’s
plea.
On February 14, 2022, Appellant filed a petition for
resentencing under section 1172.6. The trial court denied the
petition because it reasoned that at the time of his plea,
Appellant already had the benefit of Senate Bill 1437. At the
trial court hearing, Appellant’s defense counsel argued that
Appellant pled before Senate Bill 775 had defined that persons
convicted of attempted murder could also seek resentencing.
Appellant timely appealed.
DISCUSSION
I. The Superior Court Erred in Denying Appellant’s
Resentencing Petition
The California Legislature enacted Senate Bill 1437 to
“ ‘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
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participant in the underlying felony who acted with reckless
indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)”
(People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill
1437 did this by amending section 188, which defines malice, and
section 189, which defines the degrees of murder. (Stats. 2018,
ch. 1015, §§ 2, 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.” (Id., 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.” (Id., subd. (e).)
Senate Bill 1437 also established resentencing relief for
eligible defendants. (§ 1172.6, subd. (a), former § 1172.95; People
v. Strong (2022) 13 Cal.5th 698, 707–708.) Under section 1172.6,
subdivision (a), “[a] person convicted of felony murder or murder
under the 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 prosecution to proceed under a theory
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of felony murder, murder under the natural and probable
consequences doctrine . . . . [¶] (2) The petitioner was convicted of
murder or attempted murder . . . 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” under Senate Bill 1437. (§ 1172.6, subd. (a).)
After receiving a petition containing the required information,
“the court must evaluate the petition ‘to determine whether the
petitioner has made a prima facie case for relief.’ ” (Strong, at
p. 708 [citing § 1172.6, subd. (c)].) If the defendant makes a
prima facie showing for relief, the court must issue an order to
show cause and hold an evidentiary hearing. (§ 1172.6,
subds. (c), (d)(3).)
In enacting Senate Bill 775, the Legislature defined “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.”
(Sen. Bill No. 775 (2021–2022 Reg. Sess.), as amended Oct. 5,
2021, p. 3; Stats. 2021, ch. 551, §§ 1–2.) Thus, as amended by
Senate Bill 775, section 1172.6 applies to persons previously
convicted of attempted murder or manslaughter under a felony
murder or natural and probable consequences theory, or some
“other theory under which malice is imputed to a person based
solely on that person’s participation in a crime.” (§ 1172.6,
subd. (a).)
Appellant argues and the Attorney General concedes that
at the time of his plea, Senate Bill 1437 did not expressly include
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attempted murder. Moreover, when Appellant entered his plea,
there was a split in authority over whether attempted murder
was included in section 1172.6. (See, e.g., People v. Sanchez
(2020) 46 Cal.App.5th 637 [holding that attempted murder is
included in Sen. Bill 1437]; People v. Lopez (2019) 38 CalApp.5th
1087 [holding that attempted murder is not included in Sen. Bill
1437].) Before the Supreme Court could resolve the issue, the
Legislature passed Senate Bill 775 to explicitly extend section
1172.6’s benefits to persons convicted of attempted murder.
Consequently, Appellant is entitled to a remand for further
proceedings regarding his attempted murder conviction. Given
the change in law, the trial court must consider Appellant’s
petition on remand as the court’s basis for denial was erroneous.
DISPOSITION
The trial court’s order denying Appellant’s section 1172.6
petition is reversed and the matter is remanded for the trial court
to consider the petition in accordance with section 1172.6.
VIRAMONTES, J.
We Concur:
STRATTON, P. J.
WILEY, J.
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