Opinion
B301333
03-11-2022
THE PEOPLE, Plaintiff and Respondent, v. LUIS BUSTAMANTE, Defendant and Appellant.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee, Amanda V. Lopez, and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA292725-01, Mildred Escobedo, Judge. Reversed and remanded.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Charles S. Lee,
Amanda V. Lopez, and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
BAKER, J.
In 2006, a jury found defendant Luis Bustamante, also known as Luis Bustamonte, (defendant) guilty of attempted premeditated murder and robbery for his role, with a fellow criminal street gang member, in stealing a gold chain from a victim and later shooting the same victim. (People v. Bustamonte (Oct. 16. 2007, B195690 [nonpub. opn.].) More recently, defendant filed a Penal Code section 1170.95 petition for resentencing in the trial court. The trial court denied the petition, and we initially affirmed because the terms of section 1170.95 as they existed at the time permitted relief only for those convicted of murder, not attempted murder.
Undesignated statutory references that follow are to the Penal Code.
After our disposition of defendant's appeal, however, the Legislature passed and the Governor signed Senate Bill No. 775 (2020-2021 Reg. Sess.) (SB 775), which became effective on January 1, 2022. The amendments SB 775 makes to section 1170.95 "[c]larif[y] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories." (Stats. 2021, ch. 551, § 1, subd. (a).) After enactment of SB 775, and in response to defendant's petition for review of our opinion resolving defendant's appeal, our Supreme Court transferred this cause back to us with directions to vacate our decision and reconsider the matter in light of SB 775.
We vacated our earlier opinion as instructed and solicited supplemental briefing from the parties. Defendant argues enactment of SB 775 renders this appeal "moot" and asks us to remand the matter "for further proceedings pursuant to . . . section 1170.95, subdivision (c)." The Attorney General agrees reversal and a remand is required, noting defendant's jury was instructed on attempted murder liability under the natural and probable consequences doctrine and reasoning a remand is necessary to permit the trial court to redetermine the matter under section 1170.95 as amended by SB 775-which does not foreclose relief for those convicted of attempted murder. We agree with the parties that reversal of the trial court's order summarily denying defendant's section 1170.95 petition is required in light of the change in law.
DISPOSITION
The order denying defendant's section 1170.95 petition is reversed and the cause is remanded with directions to appoint counsel for defendant, to permit the filing of an amended section 1170.95 petition if counsel so chooses, and to conduct further proceedings consistent with section 1170.95, subdivision (c).
We concur RUBIN, P. J. MOOR, J.