People v. Barnett CA2/4

Filed 12/8/21 P. v. Barnett CA2/4
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B309144
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA086630
v.
DUANE BARNETT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Steven D. Blades, Judge. Reversed and
remanded with instructions.
John L. Staley, under appointment by the Court of Appeal,
for Defendant and Appellant.
Matthew Rodriguez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Scott A. Taryle and
David A. Voet, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
In 2010, a jury convicted defendant and appellant Duane
Barnett of attempted murder and found firearm and gang
allegations true. The trial court sentenced him to 40 years to life
in state prison. In 2020, Barnett filed a petition for resentencing
under Penal Code section 1170.95.1 The trial court summarily
denied the petition, concluding Barnett was ineligible for relief as
a matter of law because he was convicted of attempted murder,
not murder.
On appeal, Barnett argued the trial court prejudicially
erred in concluding section 1170.95 does not apply to individuals
convicted of attempted murder. He also argued the court
prejudicially erred by denying his petition without first
appointing counsel. On October 6, 2021, we filed an opinion
rejecting these contentions. We concluded section 1170.95 did not
afford relief to individuals convicted of attempted murder, and
consequently, the failure to appoint counsel was harmless error.
Barnett filed a petition for rehearing noting that on
October 5, 2021, the Governor signed Senate Bill No. 775 (SB
775) into law. (Stats. 2021, ch. 551.) Effective January 1, 2022,
SB 775 will amend section 1170.95 to, among other things,
provide relief for individuals convicted of attempted murder
under the natural and probable consequences doctrine. (Stats.
2021, ch. 551, § 2.) We directed the Attorney General to file an
answer to Barnett’s petition for rehearing. After considering the
petition for rehearing and answer, we filed an order granting
Barnett’s petition for rehearing. Having reconsidered the matter,
1 All undesignated statutory references are to the Penal
Code.
2
we reverse the trial court’s order denying Barnett’s petition for
section 1170.95 relief. The case is remanded to the trial court
with directions to reconsider the cause in light of section 1170.95
as amended by SB 775.
PROCEDURAL BACKGROUND
In 2010, a jury convicted Barnett of attempted murder
(count one; §§ 664/187, subd. (a)) and assault with a deadly
weapon (count two; § 245, subd. (a)(2)). The jury found true
firearm and gang allegations attached to counts one and two.
(§§ 12022.53, subds. (b)-(d), 186.22, subd. (b) [count one];
§§ 12022.5, subd. (a), 186.22, subd. (b) [count two].) The trial
court sentenced him to 40 years to life for the attempted murder
conviction, sustained firearm and gang allegations, and stayed
sentencing on count two under section 654.
In 2020, Barnett filed a petition for resentencing under
section 1170.95. In his petition, Barnett requested that counsel
be appointed on his behalf. Without appointing counsel, the trial
court summarily denied the petition, concluding Barnett was
ineligible for relief as a matter of law because he was convicted of
attempted murder, not murder. The court further stated even
assuming section 1170.95 applied to attempted murder, the
Court of Appeal opinion affirming Barnett’s judgment showed he
acted with the premeditated intent to kill.
Barnett timely appealed.2
2 We omit any recitation of the facts underlying Barnett’s
attempted murder conviction because they are not relevant to the
issues presented in this appeal.
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DISCUSSION
I. Governing Law: SB 1437, SB 775, and Section 1170.95
The Legislature enacted SB 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 participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f); accord, § 189, subd. (e);
People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)
SB 1437 also added section 1170.95 to the Penal Code.
(Stats. 2018, ch. 1015, § 4.) This section permits individuals who
were convicted of felony murder or murder under a natural and
probable consequences theory, but who could not be convicted of
murder following SB 1437’s changes to sections 188 and 189, to
petition the sentencing court to vacate the conviction and
resentence on any remaining counts. (§ 1170.95, subd. (a).) A
petition for relief under section 1170.95 must include a
declaration by the petitioner that he or she is eligible for relief
under section 1170.95 based on all the requirements of
subdivision (a), the superior court case number and year of the
petitioner’s conviction, and a request for appointment of counsel,
should the petitioner seek appointment. (§ 1170.95, subd. (b)(1).)
Subdivision (c) of section 1170.95 provides: “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 this section. 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
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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.” Subdivision (c) describes “only a
single prima facie” stage of review. (Lewis, supra, 11 Cal.5th at p.
962.) Under subdivision (c), “a complying petition is filed; the
court appoints counsel, if requested; the issue is briefed; and then
the court makes one . . . prima facie determination.” (Id. at p.
966, fn. omitted.)
“If the trial court determines that a prima facie showing for
relief has been made, the trial court issues an order to show
cause, and then 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 . . . previously been
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (Lewis, supra,
11 Cal.5th at p. 960.) At the hearing, the parties may rely on the
record of conviction or present “new or additional evidence” to
support their positions, and “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
On October 5, 2021, the Governor signed SB 775. (2021-
2022 Reg. Sess.) Effective January 1, 2022, SB 775 will amend
section 1170.95 to provide relief for individuals convicted of
attempted murder under the natural and probable consequences
doctrine. (Stats. 2021, ch. 551, § 2.)
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II. The Case is Remanded for Reconsideration in Light
of SB 775
Although the trial court was correct in concluding section
1170.95 did not apply to attempted murder convictions when it
denied Barnett’s petition, section 1170.95 will apply to attempted
murder convictions once SB 775 takes effect on January 1, 2022.
(Stats. 2021, ch. 551, § 2.) As the parties point out, Barnett’s case
will not yet be final when SB 775 takes effect. (See People v.
Lizarraga (2020) 56 Cal.App.5th 201, 206 [a case is not final until
the time for petitioning for a writ of certiorari has passed];
United States Supreme Court Rules, rule 13 [a petition for writ of
certiorari is timely filed within 90 days after entry of judgment of
a state court of last resort].) ~(Petition for rehearing at p. 4;
Answer at pp. 9-10)~ The case is therefore remanded to the trial
court with directions to reconsider the cause in light of section
1170.95, as amended by SB 775.
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DISPOSITION
The order denying Barnett’s section 1170.95 petition is
reversed, and the matter is remanded with directions to appoint
counsel for Barnett and proceed, on or after January 1, 2022,
consistent with the pertinent provisions of section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
WILLHITE, Acting P.J.
COLLINS, J.
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