People v. Bailey CA1/5 ( 2024 )

Filed 2/21/24 P. v. Bailey CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A166698
v.
LORENCE EMANUEL BAILEY, (Humboldt County
Super. Ct. No.
Defendant and Appellant.
CR1605339)
MEMORANDUM OPINION1
Defendant (and appellant) Lorence Emanuel Bailey was charged with
murder (Pen. Code, § 187)2 and enhancement allegations in an Amended
Information filed in 2017. In September 2019, he pled guilty to an amended
charge of voluntary manslaughter (§ 192) with a firearm-use enhancement
(§ 12022.5) and a prior strike (§ 667) as well as a charge of assault on a
custodial officer (§ 245.3). The trial court sentenced Bailey to state prison in
accordance with his plea agreement. Bailey did not appeal.
1 We resolve this case by memorandum opinion pursuant to California
Standards of Judicial Administration section 8.1.
2 All statutory references herein are to the Penal Code.
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In April 2022, Bailey filed a petition in the trial court for recall of his
sentence and resentencing under former section 1170.95 (now section
1172.6).3 At the prima facie hearing, the court observed that Bailey was
ineligible for relief due to the “nature of the case” and his admission of
personal use of a firearm. By written order, the court denied the petition,
concluding that Bailey did not qualify for relief because he was prosecuted as
the only individual responsible for his victim’s death, by personally inflicting
a fatal wound using a firearm.
On appeal, Bailey contends the trial court erred by relying on
inadmissible hearsay in the preliminary hearing transcript to deny his
petition at the prima facie stage. He also contends his trial counsel was
ineffective because he did not object to the court’s reliance on that hearsay.
We need not address the issues Bailey raises because, as respondent
the People of the State of California points out, Bailey is not eligible for relief
under section 1172.6 as a matter of law. (See People v. Turner (2020) 10
Cal.5th 786, 807 [reviewing the trial court’s ruling, not its reasoning].) At the
time of Bailey’s guilty plea, the murder laws had already been amended by
Senate Bill No. 1437. Because section 1172.6 was designed to provide relief
to defendants who were or could have been convicted of murder (or its
attempt) under prior law (People v. Lewis (2021) 11 Cal.5th 952, 957), Bailey
is ineligible for relief under section 1172.6 (People v. Reyes (2023) 97
Cal.App.5th 292, 298–299 (Reyes)).
Section 1172.6 states that “a person convicted of felony murder or
murder under the natural and probable consequences doctrine or other
3 Section 1170.95 was renumbered without substantive change on June
30, 2022. (See Stats. 2022, ch. 58, § 10 (Assem. Bill No. 200).) We will refer
to the statute by its current number.
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theory under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted 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 be
resentenced.” (§ 1172.6, subd. (a).)
There are generally three requirements for obtaining relief under this
statute: (1) a complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory of murder
which imputed malice onto a person based solely on that person’s
participation in a crime (§ 1172.6, subd. (a)(1)); (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 (§ 1172.6, subd. (a)(2)); and (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
(§ 1172.6, subd. (a)(3)). (Italics added; Reyes, supra, 97 Cal.App.5th at
p. 297.)
In Reyes, the petitioner had been charged with murder in 2020 and
pleaded no contest to second degree murder in 2021. (Reyes, supra, 97
Cal.App.5th at p. 295.) He later filed a petition for resentencing, which the
trial court denied because his conviction occurred under the current murder
laws after the effective date of Senate Bill No. 1437. (Reyes, at p. 296.) The
court of appeal affirmed, explaining that the petitioner was ineligible for
relief under section 1172.6 for two independent reasons. “First, in order to be
resentenced, the charging document filed against appellant must have
allowed the prosecution to proceed under a theory of murder liability that is
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now invalid.” (Id. at p. 298.) That reason does not apply here. Unlike Reyes,
where the Information was filed under the amended murder statutes, the
Amended Information against Bailey was filed in 2017, before the effective
date of the amendments to sections 188 and 189.
But the second reason Reyes denied relief under section 1172.6 does
apply here. Because the petitioner in Reyes had been convicted after the
adoption of Senate Bill No. 1437, the petitioner had already received the
benefits of that legislation. (Reyes, supra, 97 Cal.App.5th at pp. 298–299.)
The court in Reyes explained: “In order to be resentenced, a petitioner must
allege that he could not presently be convicted of murder (or its attempt)
‘because of changes’ brought by Senate Bill No. 1437. [Citation.] This
language demonstrates that appellant’s petition was properly denied.
Appellant was not convicted under the prior law, which permitted a theory of
murder based on imputed malice. Instead, he entered his change of plea in
2021 with the advice and consent of legal counsel. When appellant entered
his change of plea, the now invalid theories of murder liability had already
been eliminated. Consequently, appellant has already received the benefits
of Senate Bill No. 1437.” (Reyes, at p. 298.)
Here, Bailey changed his plea while represented by counsel and was
convicted in September 2019, nine months after the effective date of the
amendments to the murder statutes. As in Reyes, the prosecution could not
have proceeded under a theory of felony murder or murder with imputed
malice because the law had changed by then. Because Bailey already
received the benefits of Senate Bill No. 1437, he is not entitled to relief under
section 1172.6, and the trial court did not err in denying his resentencing
petition.
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DISPOSITION
The order denying Bailey’s petition for resentencing is affirmed.
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CHOU, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
People v. Bailey / A166698
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