Opinion
F082407
06-22-2022
THE PEOPLE, Plaintiff and Respondent, v. MARVELL CARRUTHERS, Defendant and Appellant.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County. No. BF171176A Michael G. Bush, Judge.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
THE COURT
Appellant Marvell Carruthers appeals following the denial of his petition for resentencing under the then applicable statute, Penal Code former section 1170.95 (Stats. 2018, ch. 1015, § 4). Appellant argues his conviction for attempted murder should be eligible for resentencing. The People posit that recent amendments to the statutory scheme warrant remand because appellant is now statutorily eligible for relief. Upon review of the record and arguments, we agree and therefore reverse the trial court's order and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2018, an information was filed alleging Robert Williams and appellant had committed attempted murder, attempted robbery, assault with a firearm, and various other related firearm and gang offenses and enhancements. Appellant eventually pleaded no contest to attempted murder and a misdemeanor gang offense, along with certain firearm enhancements. Appellant was sentenced to a term of 15 years' imprisonment.
On November 10, 2020, appellant petitioned for resentencing under Penal Code former section 1170.95. The trial court denied appellant's petition, concluding appellant was ineligible for relief under the law.
This appeal timely followed.
DISCUSSION
At the time of appellant's petition, Penal Code former section 1170.95, subdivision (a) provided: "A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply ...." (Stats. 2018, ch. 1015, § 4.) This provision was understood to exclude those convicted of attempted murder or manslaughter.
Recently, Senate Bill No. 775 (2020-2021 Reg. Sess.) amended Penal Code section 1170.95, subdivision (a) to now provide: "A person convicted of felony murder or murder under the natural and probable consequences doctrine or other 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 on any remaining counts when all of the following conditions apply...." (Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
Given this change, the trial court's conclusion that appellant was statutorily ineligible for relief is no longer correct. Appellant's attempted murder conviction now falls within the express language of the statute. We thus agree with the People that it is appropriate to remand the matter to the trial court to consider appellant's eligibility under the amended statutory scheme.
DISPOSITION
The February 19, 2021 order denying appellant's petition for resentencing is reversed. The matter is remanded to the superior court with directions to reconsider appellant's petition in light of Senate Bill No. 775.
Before Hill, P. J., Franson, J. and Pena, J.