People v. Mark CA1/3

Filed 2/16/22 P. v. Mark CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A162912
v. (Contra Costa County
Super. Ct. No. 50405381)
MELVIN LAMAR MARK,
Defendant and Appellant.
Defendant Melvin Lamar Mark appeals an order summarily
denying his petition for resentencing under the then applicable statute,
Penal Code1 former section 1170.95 (Stats. 2018, ch. 1015). The trial
court denied the petition, finding that Mark was ineligible for relief as
he had been convicted of attempted murder, not murder. Because
section 1170.95 has been amended, effective January 1, 2022 (Stats.
2021, ch. 551, § 2; Cal. Const., art. IV, § 8, subd. (c)(1)), to explicitly
allow persons to petition for resentencing of attempted murder
convictions, we reverse and remand.
1 All undesignated statutory references are to the Penal Code.
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BACKGROUND
In April 2004, the Contra Costa County District Attorney filed an
information alleging Mark committed a number of crimes, including
attempted murder. In June 2005, Mark pleaded no contest to
attempted murder (§§ 187, 664), admitted three prison priors (§ 667.5,
subd. (b)), and admitted a prior strike and serious felony (§§ 667, subds.
(a)(1), (b)-(i)). All remaining counts and allegations were dismissed. In
July 2005, the trial court sentenced Mark to an aggregate prison term
of 22 years.
In January 2020, Mark, representing himself, filed a form
petition for resentencing under former section 1170.95. He refiled his
form petition in October 2020 and the court appointed counsel. In April
2021, the trial court summarily denied the petition on the basis that
Mark was ineligible for relief because he had been convicted of
attempted murder, not murder. A timely appeal ensued.
DISCUSSION
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018
Reg. Sess.), adding sections 188 and 189, for the purpose of amending
“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
(Gentile).) As part of Senate Bill No. 1437, the Legislature also added
former section 1170.95 “to provide a procedure for those convicted of
felony murder or murder under the natural and probable consequences
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doctrine to seek” resentencing under the new ameliorative provisions
amending sections 188 and 189. (Gentile, supra, at p. 843.)
There ensued a split of authority among the Courts of Appeal as
to whether former section 1170.95 applied to attempted murder
convictions. During the pendency of this appeal, Senate Bill No. 775
(2021–2022 Reg. Sess.) resolved this split of authority by amending
section 1170.95, to clarify that “persons who were convicted of
attempted murder or manslaughter under a theory of felony murder
and the natural and probable consequences doctrine are permitted the
same relief as those persons convicted of murder under the same
theories.” (Stats. 2021, ch. 551, § 1 [Legislature’s findings and
declarations].) Senate Bill No. 775 became effective on January 1,
2022. (Cal. Const., art. IV, § 8, subd. (c)(1).)
We conclude Mark is entitled to the benefit of section 1170.95, as
amended effective January 1, 2022, since “a defendant generally is
entitled to benefit from amendments that become effective while his
case is on appeal.” (People v. Vieira (2005) 35 Cal.4th 264, 305; see
People v. Porter (2022) 73 Cal.App.5th 644, 652 [appellate court found
section 1170.95, as amended effective January 1, 2022, applied to the
defendant’s petition filed under former section 1170.95, since “the trial
court’s order denying the petition is not yet final and Senate Bill No.
775 has already taken effect”]; see generally Western Security Bank v.
Superior Court (1997) 15 Cal.4th 232, 244 [“[w]hether a statute should
apply retrospectively or only prospectively is, in the first instance, a
policy question for the legislative body enacting the statute”; “[w]here a
statute provides that it clarifies or declares existing law, ‘[i]t is obvious
that such a provision is indicative of a legislative intent that the
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amendment apply to all existing causes of action from the date of its
enactment,’ ” and “ ‘[i]n accordance with the general rules of statutory
construction, we must give effect to this intention unless there is some
constitutional objection thereto’ ”].)
We also agree with Mark, and accept the Attorney General’s
concession, that the order summarily denying the petition for
resentencing should be reversed and the matter remanded to the
superior court with directions to conduct proceedings on the petition
consistent with section 1170.95, as amended effective January 1, 2022
(Stats. 2021, ch. 551, § 2). Our decision should not be read as
expressing an opinion as to how the court should rule on the petition
under the amended law.2
DISPOSITION
The order, filed April 22, 2021, summarily denying the petition
for resentencing is reversed and the matter is remanded to the superior
court with directions to conduct proceedings on the petition consistent
with Penal Code section 1170.95, as amended effective January 1, 2022
(Stats. 2021, ch. 551, § 2).
2 Because the matter is not ripe for review, we do not address the
parties’ arguments regarding what documents and information the trial
court may review in deciding whether Mark has made a prima facie
showing of eligibility for relief.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Rodríguez, J.
People v. Mark/A162912
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