Opinion
C092670
01-24-2022
THE PEOPLE, Plaintiff and Respondent, v. JAMES JOSEPH OLAGUE, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. CR20035627
RENNER, J.
In May 2006, a jury found defendant James Joseph Olague and two codefendants, Ernesto Duran Arrellano and Oscar Hurtado Cervantes, guilty of the "first-degree murder (Pen. Code, § 187; undesignated statutory references are to the Penal Code) of Robert Stepper and Eric Folsom, and attempted murder of Vicki Folsom and Jessica Valdez on Halloween 2002." (People v. Olague et al. (Apr. 7, 2009, C053372) [nonpub. opn.] (Olague).) The jury also found true enhancements that these crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)) and a principal personally 1 discharged a firearm causing death or bodily injury (§ 12022.53, subd. (a)), as well as the special circumstance allegations of multiple murder (§ 190.2, subd. (a)(3)) and intentional killings as participants in a criminal street gang (§ 190.2, subd. (a)(22)). (Olague, supra, C053372.) We affirmed defendant's convictions, enhancements, and special circumstance findings in an unpublished decision issued April 7, 2009. (Ibid.)
Defendant petitioned the trial court for resentencing based on the elimination of the natural and probable consequences doctrine under recently enacted Senate Bill No. 1437 (Reg. Sess. 2017-2018) (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019) (Senate Bill 1437). Following the appointment of counsel, extensive briefing, and a hearing, the trial court denied defendant's petition in a written ruling. The court explained that the jury had been instructed that to find the special circumstances true, they had to determine, as to each defendant, that "he acted with the intent to kill, either as the actual killer or as a direct aider and abettor or co-conspirator who with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer." Accordingly, when the jury found the special circumstances were true, the jury determined defendant had an "actual intent to kill," thus "making [defendant] ineligible for relief under the resentencing statute."
On appeal, defendant contends the trial court erred in conflating the procedures associated with section 1170, subdivisions (c) and (d). He reasons his resentencing petition and associated filings "raised a reasonable doubt that the jury found" he had "intended to kill," thus requiring the trial court to issue an order to show cause. For the reasons we shall explain, we disagree with defendant's arguments. Nonetheless, because of legislative changes occurring following the close of briefing, we will remand the matter so that the court may determine whether defendant can demonstrate a prima facie case for relief under amended section 1170.95 for his attempted murder convictions. We otherwise affirm the trial court's order. 2
I. BACKGROUND
A. The Underlying First Degree Murder and Attempted Murder Convictions
We take certain facts and procedural history from the unpublished opinion we issued in 2009 affirming defendant's convictions in Olague, supra, C053372:
"On September 21, 2003, an indictment was filed alleging that defendants and others- Christina Marie Marten, Nathaniel Easlon, Richard Betancourt, and (later added) Gilberto Lopez- committed the following crimes:
"Count 1: First-degree murder of Robert Stepper (§ 187, subd. (a)), with enhancements alleging the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(4)), Cervantes used a firearm which caused death or bodily injury (§ 12022.53, subds. (a), (d)), and a principal personally discharged a firearm causing death or bodily injury (§ 12022.53, subd. (a)). Count 2: First-degree murder of Eric Folsom, with enhancements as above. Count 3: Attempted murder of Vicki Folsom (§§ 187, subd. (a); 664, subd. (a)), with enhancements as above. Count 4: Attempted murder of Jessica Valdez, with enhancements as above.
"The indictment also alleged special circumstances for multiple murder and intentional killings as participants in a criminal street gang (§ 190.2, subds. (a)(3), (a)(22). The prosecutor sought the death penalty against Arellano and Cervantes only, not against Olague.
"At trial, the prosecution presented evidence supporting its theory that, although the Norteño and Sureño gangs were rivals, their members cooperated in committing these crimes because Arellano (a Norteño leader or 'shot caller') and nonparty Candelario Garza (a Sureño leader) cooperated in the sale of drugs in Woodland. Arellano (a Norteño) ordered the hit because victim Stepper (a Norteño) owed him money for drugs, and Arellano wanted to send a message to others who owed money and re-instill fear in the community. Christina Marten (a Norteño) brought Stepper to the place of attack. The shooter was Cervantes, who was not a gang member but who 3 associated with Norteños, Sureños, and Crips. Stepper was the target, and the other victims were shot either because they were in the 'kill zone' or because Cervantes intentionally shot them in an attempt to eliminate witnesses. Easlon (a Crips gang member) acted as lookout. Arellano's neighbor, Gilberto Lopez (a Sureño), was the getaway driver. Olague (a Sureño) was on the street at the time of the shooting to ensure that all participants did what they were supposed to do.
"Evidence adduced at trial included the following:
"Easlon and Betancourt (Norteño) testified about a gathering at Arellano's apartment before Halloween 2002. Arellano asked Easlon and Betancourt to 'fuck up' (beat up) Robert Stepper, who owed Arellano about $500 to $800 and was not doing what he was supposed to be doing to help the drug trade. Easlon (who owed Arellano [$1], 600 for drugs) and Betancourt refused to do the actual deed, because Stepper was their friend. Arellano asked Cervantes, who was also there, to 'handle it.' Cervantes agreed and was given some drugs. Easlon, to pay off his debt, agreed to Arellano's request to station himself at the end of the street on Halloween and 'make sure nobody we know goes down that street . . . .' Lopez came to the door and was told by Arellano, '[i]t's going to go down,' and Lopez was needed as the getaway driver. (Though Lopez had a 'beef' with Cervantes, who impregnated Lopez's girlfriend, there was evidence that Lopez did not know Cervantes would be involved.) Arellano took a phone call, then said 'Jaime' and Garza were on the way over with the gun and told Easlon and Betancourt to leave. Easlon testified he knows three 'Jaimes,' one of which is Olague. Easlon did not stay and therefore did not know if it was Olague who showed up. However, Easlon testified it was Olague who showed up when the crime took place.
"On Halloween, around 10:00 p.m., as planned, Easlon concealed himself at the end of Oak Avenue to stand watch. Marten walked Stepper down Oak Avenue and then left. Stepper began chatting with the other victims near a pickup truck in victim Valdez's 4 driveway. Olague, whose job was to make sure others did their job, walked Cervantes partway down the street.
"As related by the surviving victims, a man approached the victims, 'kind of' grinned, pulled out a gun, aimed the gun at Stepper's head, and fired from a distance of two feet (killing Stepper). The shooter then pointed the gun at the others and fired multiple times (killing 17-year-old Eric Folsom and injuring 14-year-olds Vicki Folsom and Jessica Valdez). At trial, one of the survivors identified Cervantes as the shooter, though she had not identified him [in] a photo lineup.
"As Lopez drove the getaway car, Cervantes hit the dashboard and said, 'I got 'em, I got 'em.' Lopez had not expected any shooting. He later told Garza that Veronica Lugo (girlfriend of Guillermo Ramirez, who had been with Lopez) was in an alley and heard the gunshots. Lugo testified she was summoned to an apartment the next day where several people, including Cervantes and Olague, were present. Garza, Lopez, and Ramirez led her into a bedroom and told her to keep her mouth shut or she and her children would be killed.
"An expert in criminal gangs, Sergeant Steven Gill, said rival gangs do work together in drug activity and will commit a crime such as murder together to further their criminal enterprise, enhance both gangs' reputations, and further instill fear and intimidation in the community and other gang members. A non-gang member's participation would be a way to be accepted by the gangs.
"All three defendants testified at trial and denied any involvement. Arellano (age 34 at trial) said he was a Norteño for 10 years but was not a shot caller. He denied any pre-Halloween meeting, denied ordering or suggesting that anyone kill Stepper, and said he did not even know Cervantes or Olague before Halloween 2002, except for an incident where he almost got into a fight with Olague (whom he pegged as a Sureño). Arellano admitted that on one occasion he told Cervantes to 'handle it' but testified he was telling Cervantes to go get a pipe to smoke drugs. Stepper was Arellano's friend, did not buy 5 drugs from him, and did not owe him money. On Halloween, Arellano was on his way home, saw Stepper, said hello, and noticed a car full of people wearing blue (a Sureño color). Arellano said his only prior crimes were spousal abuse, selling drugs, and participating in a prison riot in which he was just following gang orders, though he was in front of his cohorts.
"Cervantes (age 28 at trial) testified he has never belonged to a gang, though he knew gang members. He knew Olague before Halloween, but not Arellano. When arrested, Cervantes said he 'knew this day was coming,' but he thought he was being arrested for violating probation. Cervantes denied telling his cellmate . . . about the case and denied tampering with his handcuffs (evidence of which was adduced as an escape attempt). Cervantes had a prior felony conviction for selling drugs and a drug-related misdemeanor. Alibi witnesses testified Cervantes was with them that night.
"Olague (age 29 at trial) testified he was a gang member when he lived in Los Angeles (he equivocated on whether it was Sureño) and associated with 'southerners' when he moved to Woodland. He was friendly with Cervantes. Olague did not know or have any contact with Arellano, except Olague ran from a brief confrontation with Arellano as a member of a rival gang in a parking lot about a month before the crimes. Olague denied any involvement in the crimes. He came upon the crime scene after a friend dropped him off and he was walking to a friend's house. Olague admitted two prior felony convictions, for auto theft and verbally threatening his ex-wife.
"To advance the defense theory that the police pressured the accomplices to make false confessions consistent with the prosecution's theory, the defense hammered at inconsistencies in the accomplices' statements, and a defense expert testified about how police interrogations can elicit false confessions.
"In May 2006, the jury returned verdicts finding all three defendants guilty on all counts and finding true all enhancement allegations. 6
"In June 2006, the jury set the sentence for Arellano and Cervantes at life without the possibility of parole on the two counts of first degree murder.
"The trial court denied defense motions for new trial.
"On July 28, 2006, the trial court sentenced Arellano to prison for life without possibility of parole on Counts 1 and 2 (first degree murder). The court sentenced Arellano to nine years on Count 4 (attempted murder) and a consecutive term of two years, four months on Count 3 (attempted murder). The court imposed three 25-years-to-life terms for the section 12022.53, subdivisions (d) and (e), enhancements on Counts 1 through 3 and a 20-year term for the section 12022.53, subdivision (c), enhancement on Count 4.
"[¶] . . . [¶]
"Olague received the same sentence as Arellano, except Olague received the midterm sentence of seven years (rather than the upper term of nine years) for the Count 4 attempted murder." (Olague, supra, C053372, fns. omitted.)
On appeal, among other findings, we specifically upheld the substantiality of the evidence supporting the enhancement finding that all defendants had individually acted with the intent to kill Eric Folsom, as well as the denial of Olague's acquittal motion, which had argued insufficient evidence supported "that he knew Cervantes planned to kill Stepper and shoot the others." (Olague, supra, C053372.) In support of these conclusions, the prior opinion identified evidence establishing that the murder of any witnesses was part of the plan, which intended to "make a big statement to instill fear in the community." (Ibid.) Defendants elected to do the shooting on Halloween, when people would be outside, and the shooter's act of seeing the witnesses with the intended victim and then shooting all victims at close range demonstrated express malice. (Ibid.) Further, Olague was implicated not only by accomplice testimony and his presence at the shooting. He also ran from the scene and threatened the jailhouse informant associated with the case. Substantial evidence supported the judgment against him. (Ibid.) 7
B. Defendant's Petition for Relief
On April 4, 2019, defendant filed a pro per petition for relief under Senate Bill 1437 arguing he was eligible for resentencing because he was not the actual killer, did not with intent to kill aid and abet the actual killer, and was not a major participant who acted with reckless indifference to human life. Defendant alternatively argued he was entitled to relief under the California Supreme Court's decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), because it could not be established beyond a reasonable doubt that the jury had convicted him on a legally valid ground and that the trial court had failed to adequately instruct the jury with all elements necessary for a first-degree murder conviction.
On April 24, 2019, the trial court appointed counsel for defendant and transferred the matter so that it could be coordinated with the proceedings concerning an earlier petition filed by defendant's prior co-defendant Ernesto Arellano. Ultimately, the parties briefed whether defendant was precluded from making a prima facie showing by virtue of his gang special circumstance that had required the jury to determine that he aided and abetted with the intent to kill. Defendant's brief on this issue acknowledged: (1) he had been tried under alternate direct aider and abettor and natural and probable consequences theories, and (2) that the jury had found the special circumstance gang finding true, but nonetheless argued he was still eligible for resentencing. Defendant reasoned that post-judgment changes to the natural and probable consequences theory had eliminated first degree liability for that theory, and that in accordance with People v. Brown (2016) 247 Cal.App.4th 211 (Brown), the court could not use his gang special circumstance finding to conclude as a matter of law that he had been convicted of first degree murder on the direct aiding and abetting theory. Under Brown, the gang special circumstance was not dispositive, requiring the court consider "the totality of the circumstances" in light of the entire record to determine defendant's eligibility for resentencing. Defendant indicated the record would be further addressed in later prima facie briefing. 8
In contrast, the People argued, in pertinent part, that the gang special circumstance finding required the jury to determine that defendant had the intent to kill. Both CALJIC No. 8.80.1 (the generalized special circumstance instruction) and CALJIC No. 8.81.22 (the gang special circumstance instruction) required the jury to determine that defendant individually held an intent to kill. Because the jury found the gang special circumstance true, defendant was therefore prevented from establishing his prima facie eligibility for resentencing. Brown was distinguishable because of the unique circumstances of that case, and even Brown acknowledged the possibility that a court could conclude any error in giving the natural and probable consequence instruction was harmless where a jury convicted a defendant of first degree murder with a true gang special circumstance finding. This was true," 'because the special circumstance required finding the defendant intentionally killed. In such a situation, it might be concluded the jury necessarily rejected the natural and probable consequences theory of aider and abettor liability and instead found the defendant was either the actual killer or aided and abetted the actual killer while sharing the killer's intent to kill.'" Further, and more fundamentally, the People argued that the court was not required to analyze whether it was harmless error to give the natural and probable consequence instruction. Rather, the court had to determine whether defendant had established that he could not now be convicted of murder. Given the prior direct aiding and abetting instruction and the special circumstance finding, defendant could not make this showing. 9
The Brown court was unable to conclude, in that matter, that the special circumstance was dispositive regarding the harmlessness of defendant's asserted error under Chiu, supra, 59 Cal.4th 155. Included among the reasons for this conclusion were irregularities concerning the taking of the verdicts (including the trial court's reading of a guilty verdict on the murder count, while ignoring an executed and dated not-guilty verdict on that count), as well as the jury's question shortly before verdicts were rendered concerning the natural and probable consequences doctrine, and the relatively weak case against Brown. (See Brown, supra, 247 Cal.App.4th at pp. 226-227, 232-233.)
At the January 23, 2020 hearing, the court elected to defer ruling on the preclusive effect of the special circumstance finding. Thereafter, the parties engaged in further briefing and argument regarding the prima facie showing, including defendant's belated request for relief on the attempted murder counts. In the end, the court announced its decision to deny the petition at the September 1, 2020 hearing and then issued a written order concluding defendant had not made a prima facie showing that he was eligible for relief. Defendant was ineligible for relief by virtue of the jury's enhancement findings that had required a determination that "he acted with the intent to kill, either as the actual killer or as a direct aider and abettor or co-conspirator who with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer." Brown was distinguishable because of its unique facts.
Defendant timely appealed.
II. DISCUSSION
A. Background
Senate Bill 1437, which took effect on January 1, 2019, limited accomplice liability under the felony murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person's sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-844 (Gentile).) As relevant to this appeal, natural and probable consequences and direct aiding and abetting were two different forms of aider and abettor liability. (Chiu, supra, 59 Cal.4th at p. 158; People v. Chavez (2018) 22 Cal.App.5th 663, 682-683.) Under the natural and probable consequences doctrine, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder, could be convicted of not only the target crime, but also of the resulting murder, irrespective of whether he or she harbored malice aforethought. (Gentile, supra, at p. 845.) In Chiu, the Supreme Court "held that the natural and probable consequences doctrine cannot support a conviction for first degree premeditated murder." (Ibid; see 10 Chiu, supra, at p. 167.) Senate Bill 1437 went further, amending section 188 to now provide that "[e]xcept as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2; Gentile, supra, at p. 846.)
The criminal liability of direct aiders and abettors did not change under Senate Bill 1437. (Gentile, supra, 10 Cal.5th at p. 848; People v. Offley (2020) 48 Cal.App.5th 588, 595-596.) Such persons who by act or advice aid, promote, encourage or instigate the commission of murder, with knowledge of the direct perpetrator's criminal purpose and with intent to commit, encourage or facilitate the commission of murder, remain criminally liable for murder. (Offley, supra, at pp. 595-596; see Chiu, supra, 59 Cal.4th at pp. 158, 161, 166-167.)
Senate Bill 1437 also added section 1170.95, "which permits an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts if he or she could not have been convicted of first or second degree murder because of Senate Bill 1437's changes to sections 188 and 189." (People v. Verdugo (2020) 44 Cal.App.5th 320, 326, review granted Mar. 18, 2020, S260493.)
Section 1170.95, subdivisions (b) and (c) create a two-step process for evaluating a petitioner's eligibility for relief. (People v. Lewis (2021) 11 Cal.5th 952, 960-962 (Lewis).) First, the trial court determines whether the petition is facially sufficient under section 1170.95, subdivision (b). (Lewis, supra, at p. 960.) If the petition is facially sufficient, then, the trial court moves on to subdivision (c), appointing counsel (if requested) and following the briefing schedule set out in the statute. (Lewis, supra, at p. 966.) Following the completion of this briefing, the trial court then determines whether the petitioner has made a prima facie showing he or she is entitled to relief. (Ibid.) 11
As the Supreme Court recently explained, "[w]hile the trial court may look at the record of conviction after the appointment of counsel to determine whether a petitioner has made a prima facie case for section 1170.95 relief, the prima facie inquiry under subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus proceedings,' "the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner." '" (Lewis, supra, 11 Cal.5th at p. 971.)
B. The First Degree Murder Convictions
Defendant contends the trial court erred in conflating the procedures associated with section 1170, subdivisions (c) and (d). He reasons his resentencing petition and associated filings "raised a reasonable doubt that the jury found" he had "intended to kill," thus requiring the trial court to issue an order to show cause. We disagree that section 1170.95 allows defendant to contest the jury's verdicts in this way.
A trial court properly denies a section 1170.95 petition if the jury made a true finding on a special circumstance that renders the defendant ineligible for relief. (See, e.g., People v. Allison (2020) 55 Cal.App.5th 449, 457-458 (Allison) [defendant's admission of felony murder special circumstance rendered him ineligible for relief under section 1170.95]; People v. Nunez (2020) 57 Cal.App.5th 78, 90-91, review granted Jan. 13, 2021, S265918 [defendant's kidnapping special circumstance rendered him ineligible for relief under section 1170.95 because the jury necessarily found defendant participated in the kidnapping with the intent to kill the victim, or that defendant was a major participant in the underlying felony].) 12
Here, the jury made a true finding as to the gang special circumstance (§ 190.2, subd. (a)(22)), the instructions for which had required a finding that "a defendant intentionally killed the victim or, with the intent to kill, aided and abetted in the killing." (CALJIC No. 8.81.22; Olague, supra, C053372.) There is no question here that defendant was not the shooter, thus, the jury necessarily determined that defendant aided and abetted in the killing with an intent to kill. (CALJIC No. 8.81.22; Olague, supra, C053372.) Accordingly, defendant is ineligible for relief under section 1170.95 as a matter of law. (See Allison, supra, 55 Cal.App.5th at p. 460 [noting a court would correctly conclude a true § 190, subd. (a)(22) finding precluded eligibility for relief as a matter of law].)
That the jury determined, defendant himself, harbored a direct intent to kill is further supported by the court's instruction in CALJIC No. 8.80.1 that "[i]f you find that a defendant was not the actual killer of a human being, or if you are unable to decide whether the defendant was the actual killer or an aider and abettor or co-conspirator, you cannot find the special circumstance to be true as to that defendant unless you are satisfied beyond a reasonable doubt that such defendant with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree." (Italics added.)
We do not accept defendant's attempts to challenge the jury's true finding. As explained in Allison, "Nothing in the language of section 1170.95 suggests it was intended to provide redress for allegedly erroneous prior factfinding. In particular, subdivision (a)(3) of section 1170.95 says nothing about erroneous prior findings or the possibility of proving contrary facts if given a second chance. Rather, it requires that the petitioner could not be convicted of murder because of the changes to sections 188 and 189, not because a prior fact finder got the facts wrong. The purpose of section 1170.95 is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved." (Allison, supra, 55 Cal.App.5th at p. 461.) Otherwise, "every convicted 13 murderer who could make a prima facie showing (whatever that might be) that the prior findings were factually incorrect would be entitled to a bench trial de novo on those findings." (Ibid.)
Both before and after the changes to sections 188 and 189, an aider and abettor could and still can be convicted of murder if he intentionally acted with express or implied malice, so long as malice was not "imputed to [the] person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Because malice was not imputed to defendant solely based on his participation in the crimes, we conclude that the trial court did not err finding defendant had not established his prima facie eligibility for relief.
Defendant's reliance on People v. Duchine (2021) 60 Cal.App.5th 798 is misplaced. Unlike the court in Duchine, which had attempted to utilize a murder theory not presented in Duchine's original trial to defeat his section 1170.95 petition (Duchine, supra, at p. 816), here, defendant's jury necessarily determined he acted with an intent to kill, precluding his eligibility as a matter of law. (Allison, supra, 55 Cal.App.5th at p. 461.)
C. The Attempted Murder Convictions
The trial court's order denying defendant's section 1170.95 petition did not expressly deny his supplemental argument requesting resentencing on his attempted murder convictions. Nonetheless, defendant has challenged the trial court's implicit rejection of this request.
Prior to the passage of Senate Bill No. 775 (2021-2022 Reg Sess.) (Senate Bill 775) (Stats. 2021, ch. 551), courts reviewing its applicability to final judgments had unanimously determined that section 1170.95 did not apply to final attempted murder convictions. (See, e.g., People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105, review granted Nov. 13, 2019, S258175 [section 1170.95 authorizes petitions by those convicted of murder directed at that individual's murder conviction]; People v. Munoz (2019) 39 Cal.App.5th 738, 754-756, review granted Nov. 26, 2019, S258234 [the plain 14 language of section 1170.95 does not encompass attempted murder]; People v. Larios (2019) 42 Cal.App.5th 956, 961, 969-970, review granted Feb. 26, 2020, S259983 [same]; People v. Medrano (2019) 42 Cal.App.5th 1001, 1008, 1018, review granted Mar. 11, 2020, S259948 [same].)
However, Senate Bill 775 amends subdivision (a) of section 1170.95 to read, in pertinent part: "A person convicted of . . . attempted murder under the natural and probable consequences doctrine . . . may file a petition with the court that sentenced the petitioner to have the petitioner's . . . attempted murder . . . conviction vacated and to be resentenced on any remaining counts . . . ." (Sen. Bill 775, Stats. 2021, ch. 551, § 2.) This legislation took effect on January 1, 2022. (Cal. Const., art. IV, § 8; Sen. Bill 775, Stats. 2021, ch. 551.)
In light of this new legislation, the parties conceded at oral argument that this matter should be remanded to allow the trial court to determine whether defendant can state a prima facie case for relief under amended section 1170.95 relevant to his attempted murder convictions. We accept this concession and will remand the matter for this purpose. 15
III. DISPOSITION
The matter is remanded with directions for the trial court to reconsider defendant's section 1170.95 request concerning his attempted murder convictions in light of the changes brought about by Senate Bill 775. The court's order denying defendant's section 1170.95 petition concerning his convictions for murder is affirmed.
We concur: BLEASE, Acting P. J., ROBIE, J. 16