People v. Richardson CA1/1

Filed 10/25/22 P. v. Richardson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A161794
v.
WILLIE RICHARDSON III, (Contra Costa County
Super. Ct. No. 05-000409-3)
Defendant and Appellant.
MEMORANDUM OPINION1
Defendant Willie Richardson III was convicted of two counts of
attempted murder after a jury trial. In 2020, he petitioned for resentencing
under former Penal Code2 section 1170.95, renumbered section 1172.6.3 The
We resolve this case by memorandum opinion under California
1
Standards of Judicial Administration, section 8.1 because this appeal “is
determined by a controlling statute which is not challenged for
unconstitutionality and does not present any substantial question of
interpretation or application.” In addition, the parties apparently agree the
matter must be remanded for further proceedings.
2 All statutory references are to the Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered section
3
1172.6, with no change in text. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022;
Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
trial court summarily denied his petition and Richardson appealed. After the
matter was fully briefed in this court, the Legislature enacted Senate Bill No.
775 (2021–2022 Reg. Sess.) (Senate Bill 775), which extended section 1172.6
to persons convicted of attempted murder. For reasons discussed in this
opinion, we reverse and remand for further proceedings in accordance with
section 1172.6.
BACKGROUND
We do not recite any facts of the underlying crime as there are no facts
available to us in the record on appeal and the only issue in the case is one of
pure statutory law.
Defendant was charged by information filed on April 4, 2000, with two
counts of attempted murder (§§ 187, subd. (a)/664, subd. (a), counts 1 and 2);
carjacking (§ 215, subd. (a), count 3); first degree robbery (count 4:
§§ 211/212.5, subd. (a)); assault with a deadly weapon likely to produce great
bodily injury (§ 245, subd. (a)(1), count 5); and kidnapping for robbery (§ 209,
subd. (b), count 6). The information also charged multiple enhancements for
intentionally discharging a firearm causing great bodily injury, personal use
of a firearm, personally inflicting great bodily harm, and committing offenses
while on bail and on own recognizance. After a jury trial, defendant was
found guilty of both counts of attempted murder, carjacking, assault with a
deadly weapon, and kidnapping. Several enhancements were found true,
including that defendant personally and intentionally discharged a firearm
causing great bodily injury in the commission of the attempted murders,
carjacking, and kidnapping. He was acquitted of residential robbery. He was
sentenced to life on count one with a sentence of 25-years-to-life for the
firearm enhancement. The sentences on the other counts were made
concurrent or stayed.
2
On June 15, 2020, defendant filed a petition for resentencing under
former section 1170.95. The trial court denied the petition, finding defendant
failed to state a prima facie case for relief because resentencing relief was not
available for attempted murder convictions under the former statute.
Defendant timely appealed.
After defendant filed his appeal, the Legislature enacted Senate Bill
775, which amended former section 1170.95 to permit persons convicted of
attempted murder or manslaughter under a theory of felony murder or the
natural and probable consequences doctrine to petition for resentencing.
(Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
In its respondent’s brief on appeal, the Attorney General noted Senate
Bill 775 would become effective on January 1, 2022, and requested we stay
the appeal and remand to the trial court to consider, after that date, whether
defendant is entitled to relief under Senate Bill 775. In his reply brief,
defendant agreed. On December 8, 2021, we issued a stay, remanding the
matter to the trial court with directions to consider, after January 1, 2022,
whether Senate Bill 775 altered its conclusion defendant was not entitled to
relief. We directed the parties to provide status reports to this court every 90
days thereafter.
After three rounds of status reports, the matter still has not been
determined on remand. On September 22, 2022, this court issued a request
for supplemental briefing, asking the parties to address whether, in light of
the substantial length of time the case has been pending, we should dismiss
the appeal as moot without prejudice to defendant’s right to reassert any
claims raised in the present appeal. Defendant filed a supplemental letter
brief arguing the case is not moot and urging this court to reverse the
judgment and remand for further proceedings as other courts have done in
3
similar cases. (See, e.g., People v. Whitson (2022) 79 Cal.App.5th 22, 33, 36;
People v. Porter (2022) 73 Cal.App.5th 644, 652–653.) The Attorney General
filed no supplemental brief or response and apparently does not object to such
a resolution of this appeal.
DISCUSSION
Senate Bill No. 1437 (2017–2018 Reg. Sess.) “ ‘amend[ed] 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.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 959.) It
also added former section 1170.95, which “provid[ed] a procedure for
convicted murderers who could not be convicted under the law as amended to
retroactively seek relief.” (Ibid.)
Effective January 1, 2022, Senate Bill 775 amended former section
1170.95 (now section 1172.6) to permit defendants convicted of attempted
murder under a natural and probable consequences theory to petition for
resentencing. (Stats. 2021, ch. 551, §§ 1, subd. (a), 2.) Defendant’s appeal
was not final as of that date, so he is entitled to the benefit of the new
provisions in section 1172.6. (People v. Porter, supra, 73 Cal.App.5th at p.
652.) Accordingly, we reverse and remand for further proceedings. We
express no opinion on how the petition should ultimately be resolved.4
4 In light of our resolution of this appeal, we do not address the parties’
arguments raised in their briefs on appeal as to whether defendant’s petition
is facially deficient. Based on information contained in the parties’ status
reports, this issue may be moot in any event because defendant has filed an
amended petition in the trial court as we stated in our stay order he was
entitled to do.
4
DISPOSITION
The stay issued December 8, 2021 is dissolved. The trial court’s order
summarily denying defendant’s section 1172.6 petition is reversed. The
matter is remanded to the superior court for further proceedings in
accordance with section 1172.6.
5
_________________________
Margulies, J.
WE CONCUR:
_________________________
Humes, P. J.
_________________________
Banke, J.
A161794
6