People v. Kelly ( 2024 )

Filed 9/18/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G062071
v. (Super. Ct. No. 08NF4115)
JARRELL KELLY, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of
Orange County, Cheri T. Pham, Judge. Reversed and remanded with
directions.
Cliff Gardner, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.
Swenson, Felicity Senoski and Marvin E. Mizell, Deputy Attorneys General,
for Plaintiff and Respondent.
Convicted of felony murder and attempted murder in 2012,
Jarrell Kelly appeals the summary denial of his petition for resentencing
under Penal Code section 1172.6.1 His appeal requires us to interpret the
actus reus requirement for felony murder as set forth in section 189,
subdivision (e)(2) (section 189(e)(2).) In particular, we must ascertain what it
means to “assist[] the actual killer in the commission of murder in the first
degree” for purposes of that provision. In our original opinion in this case, we
interpreted that phrase to require proof the defendant assisted the actual
killer in committing the murderous act, and since the record of appellant’s
conviction does not contain such proof, we reversed the trial court’s ruling
and ordered the court to conduct an evidentiary hearing on appellant’s
entitlement to resentencing. (People v. Kelly (Mar. 14, 2024, G062071)
[nonpub. opn.].)
However, shortly after we issued our opinion, another panel of
this court rendered a split decision in People v. Morris (2024) 100 Cal.App.5th
1016 (Morris) that conflicts with how we interpreted section 189(e)(2).
Whereas we interpreted that provision as requiring proof the defendant
assisted the killer in committing the murderous act, the majority in Morris
1
That section was formerly housed in Penal Code section
1170.95, but in 2022 it was renumbered without substantive change as Penal
Code section 1172.6. (Stats. 2022, ch. 58, § 10.) For ease of reference, we will
refer to the current statute. All further statutory references are to the Penal
Code.
2
decided it simply requires proof the defendant assisted the killer in
2
committing the underlying felony. (Id. at p. 1020.)
The California Supreme Court granted review in Morris on July
17, 2024 (S284751), and therefore it will have the final word on the meaning
of section 189(e)(2)’s actus reus requirement. In the meantime, we ordered a
rehearing in this case and have obtained supplemental briefing from the
parties on the Morris decision. Consistent with our original opinion, we
interpret section 189(e)(2) to mean the defendant must assist the killer in
committing the murderous act, not just the underlying felony. Because the
record of appellant’s conviction does not conclusively establish that
requirement, we reverse the trial court’s denial order and remand for further
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, appellant and several other members of the Rollin’ 20’s
gang robbed two men at gunpoint in the restroom of a Denny’s restaurant in
Anaheim. During the robbery, Armand Jones, a friend of the victims, entered
the restroom. Appellant’s group tried to rob him too, but he resisted and
chased the robbers outside. Jones’ friend Ronnell Spencer joined the chase
and fired several shots at the robbers in the parking lot. Appellant’s group
returned fire, wounding Spencer and killing Jones.
Appellant was charged with murder, attempted murder, robbery
and street terrorism, as well as vicariously discharging a firearm. (§§ 187,
subd. (a), 664, 211, 186.22, subd. (a), 12022.53, subds. (c), (d) & (e)(1).) He
2
Recently, another panel of this court sided with the Morris
majority in People v. Lopez (Aug. 27, 2024, G061870) __ Cal.App.5th __ [2024
Cal.App.LEXIS 527].
3
also faced two special circumstances allegations, namely that Jones was
killed during a robbery and to further the activities of a criminal street gang.
(§ 190.2, subds. (a)(17)(A) & (a)(22).)
At trial, the prosecutor conceded appellant did not shoot Spencer
or Jones. However, he argued appellant was guilty of first degree felony
murder for participating in the robbery that led to the fatal shooting. And he
argued appellant was guilty of attempted murder because that offense was a
natural and probable consequence of the robbery or a conspiracy to commit
robbery.
With respect to the gang special circumstances allegation, the
jury was instructed it not only required proof that appellant was a member of
a criminal street gang when Jones was killed, but also that he personally
intended to kill at that time. (CALCRIM No. 736.) The jury convicted
appellant as charged, finding all sentencing and special circumstances
allegations true. The trial court sentenced him to life in prison without
parole, and we affirmed his convictions on appeal. (People v. Valerio et al.
(Dec. 24, 2014, G047217) [nonpub. opn.].)
In 2022, appellant petitioned for resentencing under section
1172.6. Based on the jury’s true finding on the gang special circumstances
allegation, the trial court ruled appellant was ineligible for relief because he
acted with the intent to kill. It thus denied his petition without an
evidentiary hearing.
DISCUSSION
Appellant contends the trial court’s ruling was erroneous because
the record of conviction does not render him ineligible for resentencing as a
matter of law. We agree.
4
Appellant’s claim is grounded in Senate Bill No. 1437. (Stats.
2018, ch. 1015, §§ 2-4 (Senate Bill 1437).) That law narrowed the scope of
vicarious liability for the crime of murder in two important ways. First, it
eliminated the natural and probable consequences theory in murder cases by
providing that “[m]alice shall not be imputed to a person based solely on his
or her participation in a crime.” (§ 188, subd. (a)(3).) Second, Senate Bill 1437
reined in the felony murder rule so that it can only be applied to nonkillers if
they assisted the actual killer in committing first degree murder, or they
were a major participant in the underlying felony and acted recklessly
indifferent to human life. (§ 189, subd. (e).)
Senate Bill 1437 also led to the enactment of section 1172.6,
which is the procedural mechanism for challenging a murder conviction
based on vicarious liability. To obtain relief under that section, the defendant
must show 1) he was prosecuted for murder on a theory under which malice
was imputed to him based solely on his participation in a crime, 2) he was
convicted of murder, and 3) and he would not be liable for murder today
because of how Senate Bill 1437 redefined that offense. (§ 1172.6, subd. (a).)
The statute applies in an analogous manner to defendants who were
convicted of attempted murder based on the natural and probable
consequences doctrine. (Ibid.)
If the defendant makes a prima facie showing for relief, the trial
court is required to issue an order to show cause and conduct an evidentiary
hearing. (§ 1172.6, subds. (c), (d).) At the hearing, the prosecution must prove
beyond a reasonable doubt that the defendant is ineligible for resentencing
because his conduct did in fact rise to the level of murder or attempted
murder as redefined by Senate Bill 1437. (Id., subd. (d)(3).) Otherwise, the
5
defendant is entitled to vacatur and resentencing per the terms of section
1172.6.
In People v. Lewis (2021) 11 Cal.5th 952, our Supreme Court
ruled the bar for establishing a prima facie case for resentencing is very low,
and the trial court’s role in determining whether that bar has been cleared in
a given case is quite limited. (Id. at pp. 970-972.) While the trial court may
consider the underlying record of conviction, judicial factfinding is not
allowed. (Ibid.) Unless the record of conviction conclusively establishes the
defendant is ineligible for resentencing as a matter of law, the court must
issue an order to show cause and conduct an evidentiary hearing on his
entitlement to relief. (Id. at p. 971, accord, People v. Strong (2022) 13 Cal.5th
698, 708.)
The Supreme Court’s decision in People v. Curiel (2023) 15
Cal.5th 433 (Curiel) provides further guidance on the resentencing process.
As relevant here, the court held a jury’s finding the defendant acted with the
intent to kill does not foreclose resentencing under section 1172.6. (Id. at pp.
460-463.) Rather, the record of conviction must establish the jury made all of
the findings necessary to support a conviction for murder or attempted
murder under current law. (Id. at pp. 463-471.) This requires proof the jury
found the defendant harbored the necessary intent and he committed the
necessary act or acts to be guilty under a presently valid theory of liability.
(Ibid.)
With respect to appellant’s conviction for attempted murder, it is
undisputed the jury did not make such findings. As to that offense, the jury
was instructed on both direct aiding and abetting and the natural and
probable consequences theory of aiding and abetting. Although direct aiding
6
and abetting is still a valid theory of liability, and the jury found appellant
acted with the intent to kill, the Attorney General concedes that, under
Curiel, that finding is insufficient to establish that the jury made the
necessary findings to convict appellant of attempted murder as a direct aider
and abettor. (Curiel, supra, 15 Cal.5th at pp. 460-463.) Therefore, the trial
court erred in summarily denying appellant’s petition for resentencing as to
that offense.
Turning to appellant’s murder conviction, the record shows he
was convicted based on the felony murder rule. Consistent with the law that
was in effect at the time of appellant’s trial, the jury was instructed it could
convict appellant under that rule so long as he committed or aided and
abetted the underlying robbery, and Jones was killed during the commission
of that offense. (CALCRIM No. 540B.) The jury was not required to find
appellant possessed any particular intent with respect to the killing itself.
(See generally People v. Chun (2009) 45 Cal.4th 1172, 1184 [under the
traditional felony murder rule, malice for the killing was imputed to the
defendant so long as he intended to commit and participated in a qualifying
felony].)
However, as noted above, Senate Bill 1437 narrowed the scope of
the felony murder rule. As set forth in section 189, subdivision (e), the rule
currently states, “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [including robbery] 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
7
in the first degree. [¶] (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.” So, unless the jury made the
necessary findings to convict appellant under one of these three theories, he
is not barred from obtaining relief under section 1172.6. (Curiel, supra, 15
Cal.5th at pp. 463-471.)
The Attorney General admits that for purposes of subdivisions
(e)(1) and (e)(3) of section 189, the jury did not find appellant was the actual
killer or that he was a major participant who acted recklessly indifferent to
human life. Therefore, appellant is not ineligible for resentencing by virtue of
those subdivisions. That leaves section 189(e)(2) as the only possible basis for
disqualifying him.
We know from its true finding on the gang special circumstances
allegation that the jury found appellant acted with the intent to kill, which
satisfies the mens rea requirement under section 189(e)(2). That being the
case, appellant’s eligibility for resentencing on the murder count turns on
whether the jury also found he “aided, abetted, counseled, commanded,
induced, solicited, requested, or assisted the actual killer in the commission
of murder in the first degree.” (§ 189(e)(2).)
There is no finding to that effect in the record of appellant’s
conviction. Nevertheless, the Attorney General argues appellant is still
ineligible for resentencing because even though the jury did not find that he
assisted the actual killer in shooting Jones, it did find that he was involved in
the underlying robbery. In so arguing, the Attorney General effectively
equates the actus reus for the new felony murder rule with the actus reus for
the old felony rule. He would have us hold that although section 189(e)(2)
8
specifically states the defendant must assist “the actual killer in the
commission of murder in the first degree” to be liable for felony murder, the
defendant really only needs to assist the actual killer in committing the
underlying felony.
This court’s decision in Morris supports that position. In that
case, over a dissent by Justice Moore, the majority ruled, “A person who, with
an intent to kill, directly commits or aids and abets an enumerated felony in
which a death occurs commits the actus reus necessary for felony murder
under the amended felony murder statute by acting in furtherance of the
common design of the felony. [Citation.]” (Morris, supra, 100 Cal.App.5th at
p. 1020; accord, People v. Lopez (2023) 88 Cal.App.5th 566 [holding likewise
in a similarly split decision].) The Attorney General urges us to reach the
same conclusion here. However, for the reasons explained below, we decline
to do so.
“‘“As in any case involving statutory interpretation, our
fundamental task here is to determine the Legislature’s intent so as to
effectuate the law’s purpose.” [Citation.] “We begin by examining the
statutory language, giving it a plain and commonsense meaning. [Citation.]
We do not, however, consider the statutory language in isolation; rather, we
look to the entire substance of the statutes in order to determine their scope
and purposes. [Citation.] That is, we construe the words in question in
context, keeping in mind the statutes’ nature and obvious purposes.
[Citation.] We must harmonize the various parts of the enactments by
considering them in the context of the statutory [framework] as a whole.
[Citation.]”’” (People v. Lipscomb (2022) 87 Cal.App.5th 9, 17.)
9
By its terms, section 189(e)(2) speaks to the situation where the
defendant intends to kill but is not the actual killer. In that scenario, the
statute says the defendant must assist the killer in the commission of murder
in the first degree to be liable for felony murder. It does not say the defendant
need only assist the killer in the commission of the underlying felony. Yet,
because first degree murder includes felony murder, the majority in Morris
determined that assisting the killer in the underlying felony will suffice to
satisfy the actus reus of section 189(e)(2). (Morris, supra, 100 Cal.App.5th at
pp. 1025-1026.)
We believe that, looking at section 189 as a whole, it is clear the
Legislature intended to draw a distinction between assisting first degree
murder and assisting the underlying felony. That becomes apparent when we
contrast the language of section 189(e)(2) with the language of section 189,
subdivision (e)(3), which applies when the defendant “was a major
participant in the underlying felony and acted with reckless indifference to
human life[.]” (§ 189, subd. (e)(3) (section 189(e)(3)).)
Whereas the actus reus requirement of section 189(e)(3) is
phrased in terms of participation in the “underlying felony,” section 189(e)(2)
speaks of assisting the commission of “murder in the first degree.” The use of
different wording to convey the actus reus requirements for these
subdivisions is significant. Indeed, the law is well established that when “the
Legislature uses materially different language in statutory provisions
addressing the same subject or related subjects, the normal inference is that
the Legislature intended a difference in meaning.” (People v. Trevino (2001)
26 Cal.4th 237, 242.)
10
Comparing subdivisions (e)(2) and (e)(3) of section 189 side by
side, it is reasonable to conclude the Legislature was aware of and intended
to draw a distinction between mere involvement in the underling felony and
involvement in the murder itself. Yet, under the Morris majority’s
interpretation of the statute, the use of different terminology in these
provisions carries no legal significance. We cannot subscribe to an
interpretation of section 189, subdivision (e) that treats materially different
terms as if they meant the same thing.
By interpreting section 189(e)(2) to merely require assistance in
the underlying felony, the Morris majority also renders other aspects of
section 189, subdivision (e) meaningless, which contravenes another
convention of statutory interpretation. (See People v. Griffin (2004) 33
Cal.4th 1015, 1027 [one part of a statute should not be construed so as to
make another part of the statute nugatory or redundant].) This becomes
apparent when we look at the opening paragraph of section 189, subdivision
(e).
That paragraph makes it clear that assistance in the commission
of a qualifying felony is a foundational requirement for all felony murders. It
states, “A participant in the perpetration or attempted perpetration of a
[qualifying] felony . . . in which a death occurs is liable for murder only if one
of the following is proven . . . .” (§ 189, subd. (e).)
This wording indicates that something more than mere assistance
in the commission of the felony is required to satisfy the actus reus
requirement in section 189(e)(2), otherwise the language in that provision
would be superfluous. That something more is spelled out in the statute. In
addition to requiring the defendant to assist the underlying felony, the
11
statute requires the defendant to assist the actual killer in the commission of
first degree murder. (§ 189, subd. (e)(2).) To avoid redundancy, that must
mean assisting the killer in the commission of the murderous act itself, not
just the underlying felony.
Although the wording and structure of section 189, subdivision
(e) undermine the Morris majority’s interpretation of that provision, the
majority justified its holding on the belief that it was consistent with the
Supreme Court’s decision in Curiel, supra. But Curiel was a direct aiding and
abetting case, not a felony murder case. The Supreme Court went out of its
way to make clear its holding was limited to the specific facts and theories
that were presented in that case. (Curiel, supra, 15 Cal.5th at pp. 470, fn. 7 &
471.)
As the Morris majority pointed out, the Curiel court did pose a
hypothetical involving the felony murder rule at one point of its analysis.
(Morris, supra, 100 Cal.App.5th at p. 1026.) However, that hypothetical
assumed the actus reus requirement for felony murder was established; it did
not purport to define that requirement in the first instance. (Curiel, supra, 15
Cal.5th at p. 464.) Therefore, unlike the majority in Morris, we do not read
the hypothetical as clarifying that requirement.3
3
At the time Curiel was decided, neither did the Attorney
General. Now he contends the Curiel hypothetical lends credence to the
majority opinion in Morris. We note, however, that in response to an amicus
curiae request to modify the Curiel opinion to make clear the hypothetical
was not intended to reflect the court’s understanding of the requirements for
felony murder under section 189(e)(2), the Attorney General conceded the
hypothetical did not provide an exhaustive list of all the elements necessary
to impose liability under that section.
12
The Morris majority also relied on People v. Dickey (2005) 35
Cal.4th 884 (Dickey), in coming to its conclusion about section 189(e)(2)’s
actus reus requirement. In Dickey, the Supreme Court interpreted the special
circumstances provision contained in former section 190.2, subdivision (b).
That provision provided, “‘Every person whether or not the actual killer
found guilty of intentionally aiding, abetting . . . or assisting any actor in the
commission of murder in the first degree shall suffer death or confinement in
state prison for a term of life without the possibility of parole[.]’” (Dickey,
supra, 35 Cal.4th at p. 900, italics omitted, quoting former § 190.2, subd. (b);
see now § 190.2, subd. (c).)
Dickey argued this language required proof he assisted the
subject killings themselves, not just the underlying felonies during which the
killings were committed. (Dickey, supra, 35 Cal.4th at p. 900.) That argument
did not go over well because unlike section 189(e)(3), which requires the
defendant to assist the “actual killer” in committing first degree murder,
former section 190.2, subdivision (b) applied more broadly whenever the
defendant assisted “any actor” in the commission of that offense. Applying
the old felony murder rule that swept up all manners of assistance within its
ambit, the Supreme Court ruled the language in former section 190.2,
subdivision (b) applied whenever the defendant aided and abetted a felony
that led to the victim’s death. (Dickey, supra, 35 Cal.4th at p. 400.)
However, the felony murder rule has undergone a significant
transformation since Dickey was decided. Precisely because it was so
sweeping in its scope, the Legislature narrowed the felony murder rule
through the enactment of Senate Bill 1437 to ensure the defendant’s
punishment is commensurate with his culpability. (People v. Lewis, supra, 11
13
Cal.5th at p. 971.) One of the ways it did that is by tethering the assistance
requirement in section 189(e)(2) to the “actual killer,” as opposed to “any
actor.” This word choice indicates the Legislature intended to require a closer
nexus between the defendant’s actions and the actual killing than was
previously required under Dickey.
We thus find Dickey to be of little value in our analysis of section
189(e)(2). That decision would obviously be binding if we were interpretating
the very same statutory language at issue in that case. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) However, as Justice Moore
pointed out in her Morris dissent, “the Supreme Court’s nearly two-decades-
old analysis in Dickey does not apply to California’s current felony-murder
rule.” (Morris, supra, 100 Cal.App.5th at p. 1033 (Moore, J., dissenting); cf.
People v. Ervin (2021) 72 Cal.App.5th 90, 108 [jury’s finding that the
defendant assisted “another” in carrying out the crime of murder was
insufficient to satisfy section 189(e)(2)’s requirement that the defendant
assist “the actual killer”].)
In interpreting section 189(e)(2), the Morris majority also found it
significant that section 189(e)(3) imposes felony murder liability on any
person who was a major participant in the underlying felony and acted with
reckless indifference to human life. The majority expressed concern that if
section 189(e)(2), which requires the intent to kill, were interpreted to require
assistance in the murderous act itself, “a person harboring the heightened
mental state of . . . express malice . . . would need to engage in a more
significant act vis-à-vis the killing, namely assist the killing itself, than
someone with the less culpable mental state of reckless indifference to human
14
life, who would simply have to be a major participant in the underlying
felony.” (Morris, supra, 100 Cal.App.5th at p. 1027.)
The Morris majority rejected that interpretation for fear it would
contravene the proportionality objective behind Senate Bill 1437. (Morris,
supra, 100 Cal.App.5th at p. 1027.) However, there certainly could be
situations where that would not be the case, such as when the defendant
offers minor assistance to a qualifying felony not expecting (but secretly
hoping) it will result in the death of another human being. Under that
scenario, the defendant would be liable for felony murder under the Morris
majority’s interpretation of section 189(e)(2) if a death occurred during the
felony, even if he was not present at the scene of the killing. But, despite
harboring a malicious mindset, he could actually be less culpable than
someone whose participation in the felony was so considerable that it
amounted to reckless indifference to human life for purposes of section
189(e)(3). (See People v. Banks (2015) 61 Cal.4th 788, 801 [the reckless
indifference requirement is established when a person is “willingly involved
in the violent manner in which the particular offense is committed,
demonstrating reckless indifference to the significant risk of death his or her
actions create.”].)
That would explain why the Legislature required assistance in
the commission of first degree murder in section 189(e)(2), but it only
required assistance in the underlying felony in section 189(e)(3). The
Legislature presumably understood that culpability is derived from both the
defendant’s mental state and his actions, not one or the other. Our concern is
that the Morris majority used the intent to kill requirement in section
189(e)(2) as a justification for eviscerating the remaining elements in that
15
provision. While the intent to kill is certainly a blameworthy mental state,
standing alone it is not sufficient to render a defendant ineligible for
resentencing. (Curiel, supra, 15 Cal.5th at pp. 461-468 [although the
legislative history of Senate Bill 1437 makes clear that malice is generally
considered a necessary prerequisite for murder, “[i]t is only one element. It
does not by itself establish any valid theory of liability.”].)
In attempting to defend the Morris majority’s interpretation of
section 189(e)(2), the Attorney General makes an additional argument
regarding the interplay between that provision and section 189(e)(3). Namely,
he asserts that interpreting the former provision to require proof that the
defendant assisted the killer in committing the murderous act would render
the latter provision superfluous.
This argument is based on two assumptions. First, assisting a
murder with the intent to kill is the same as directly aiding and abetting the
crime of murder. Second, directly aiding and abetting a felony is the
functional equivalent of being a major participant in a felony for purposes of
section 189(e)(3). Both of these assumptions are incorrect.
Contrary to the Attorney General’s assertion, interpreting section
189(e)(2) to require assistance in the murderous act is not the same as
requiring proof the defendant directly aided and abetted the crime of murder.
Curiel made this evident by clarifying that to be liable for directly aiding and
abetting a murder, the defendant must not only possess the intent to kill, he
must also aid “‘the commission of that offense with “knowledge of the direct
perpetrator’s unlawful intent and [with] an intent to assist in achieving those
unlawful ends.”’ [Citation.]” (Curiel, supra, 15 Cal.5th at p. 463.) In other
16
words, the necessary mental state consists of both “intent and knowledge.”
(In re Lopez (2023) 14 Cal.5th 562, 579.)
In comparison, section 189(e)(2) merely requires the defendant to
aid, abet or assist the actual killer in committing first degree murder. Even
when the defendant harbors malice, assisting is not the same as aiding and
abetting, as that term was defined in Curiel. Although section 189(e)(2) uses
language that is commonly associated with direct aiding and abetting, it does
not contain all the elements of that theory of liability. (See Curiel, supra, 15
Cal.5th at pp. 464-465; In re Lopez, supra, 14 Cal.5th at pp. 587-588.)
Even if it did, that would not render section 189(e)(3) superfluous
because, contrary to the Attorney General’s claim, not everyone who directly
aids and abets a murder is liable for murder as a major participant under
that section. In fact, our Supreme Court has made it clear that in order to
satisfy the major participant element in section 189(e)(3), the defendant’s
personal involvement must be “greater than the actions of an ordinary aider
and abettor[.]” (People v. Banks, supra, 61 Cal.4th at p. 802.) This
requirement gives section 189(e)(3) independent force and meaning, apart
from the liability described in section 189(e)(2).
For better or worse—and that is not our call to make—the People
of the state, through their legislators, have determined that we defined
murder too broadly in the last century. They enacted sweeping reforms to
pull back from those definitions. To now rule that their intention was to
define murder as broadly as would our dissenting colleague seems to us
contrary to the language and goal of that legislation. We would leave it to
them to make such an intention clearer.
17
DISPOSITION
The trial court’s order denying appellant’s section 1172.6 petition
for resentencing is reversed, and the matter is remanded for the issuance of
an order to show cause and an evidentiary hearing on appellant’s entitlement
to resentencing on his convictions for both first degree murder and attempted
murder.
BEDSWORTH, ACTING P. J.
I CONCUR:
MOORE, J.
18
GOODING, J., Dissenting.
I respectfully dissent.
I agree with the analyses and conclusions set forth in People v. Lopez (Aug. 27,
2024, G061870) Cal.App.5th [2024 Cal.App.LEXIS 527]) and in the majority
opinion in People v. Morris (2024) 100 Cal.App.5th 1016, review granted July 17, 2024,
S284751, and believe those cases were correctly decided. I therefore would affirm the
trial court’s denial of defendant’s petition for resentencing under Penal Code section
1172.6.
GOODING, J.
1