Opinion
A158211
06-24-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM DAVENPORT, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 50716688) MEMORANDUM OPINION
We resolve this case by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. (See People v. Garcia (2002) 97 Cal.App.4th 847, 853-855.)
I.
On November 30, 2007, appellant William Davenport was convicted by plea of second degree murder with a personal use of a firearm enhancement. The court sentenced him to a term of 15 years to life for second degree murder, consecutive to a term of three years for the enhancement. On February 20, 2019, Davenport filed a petition for re-sentencing under Penal Code section 1170.95.
All undesignated statutory references are to the Penal Code.
On June 14, 2019, the Superior Court issued a written denial, holding that Davenport had failed to state a prima facie case for relief. It does not appear from the record that the People responded to the petition or that the court issued an order to show cause or held a hearing before issuing this denial. Nor did the Superior Court state any reasons for its denial, other than its conclusion that the petition failed to state a prima facie case for relief.
In this appeal from the summary denial of Davenport's resentencing petition, the Attorney General concedes error. He takes the position that "[t]hough the court did not necessarily err by finding appellant had failed to make a prima facie case for relief, it did not state the basis of its finding, nor is that basis apparent from the record on appeal." He "therefore agrees with appellant that this matter must be remanded for further proceedings."
Based on conceded error in failing to specify the grounds for denial, we shall vacate the denial of Davenport's petition for resentencing and remand for further proceedings in accordance with the procedures set forth in section 1170.95, subdivisions (b) and (c), and, if necessary, subdivision (d). (See People v. Verdugo (2020) 44 Cal.App.5th 320, 325-333 [explaining each procedural step the Superior Court must take in the disposition of a § 1170.95 resentencing petition].)
II.
An information dated October 17, 2007, charged Davenport with murder (§ 187). It further alleged personal and intentional discharge of a firearm causing great bodily injury and death as well as personal and intentional discharge and personal use of a firearm (§ 12022.53, subds. (b)-(d)).
On November 30, 2007, Davenport entered a plea to second degree murder and apparently admitted personal use of a firearm within the meaning of section 12022.5, subdivision (a). The court sentenced him to a term of 15 years to life for second degree murder consecutive to a term of three years for the enhancement.
On February 20, 2019, Davenport filed a pro per "Petition for Resentencing" under section 1170.95 in the Contra Costa County Superior Court. He asserted that he was entitled to relief under section 1170.95 because he was tried under an information that allowed the prosecution to proceed on a felony murder theory, he pled guilty or no contest to second degree murder in lieu of going to trial because he believed he could have been convicted at trial of first degree murder pursuant to the felony murder rule and that he could not now be convicted of first or second degree murder under section 188, as revised. He requested appointment of counsel.
On June 14, 2019, the Superior Court summarily denied the petition in a one-page written opinion for failure to state a prima facie case for relief. In appealing that order, Davenport argues that "the court was mistaken in its determination that the petition did not set forth a prima facie case for relief and failed to follow the required statutory procedures before summarily denying his petition." "Because of these errors," Davenport submits, "this Court should reverse the order denying the petition and remand the matter for proceedings consistent with the statutory mandate."
In his responding brief, the Attorney General concedes that Davenport "made an initial prima facie showing of eligibility for relief under section 1170.95." He acknowledges that Davenport's petition alleged "that (1) '[a] complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine'; (2) he 'pled guilty or no contest to 1st or 2nd degree murder in lieu of going to trial because [he] believed [he] could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine'; (3) he 'could not now be convicted of 1st or 2nd degree murder because of changes made to [sections] 188 and 189'; and (4) he 'was convicted of 2nd degree murder under the natural and probable consequences doctrine or under the 2nd degree felony murder doctrine and [he] could not now be convicted of murder because of changes to [section] 188.' " "Those assertions," the Attorney General concedes, "if true, would mean that appellant is eligible for relief under section 1170.95."
DISPOSITION
The order denying Davenport's resentencing petition is vacated and the case is remanded for further proceedings in accordance with the procedures set forth in Penal Code section 1170.95, subdivisions (b), (c) and, if necessary, (d). (See People v. Verdugo, supra, 44 Cal.App.5th at pp. 325-333.)
STREETER, Acting P. J. WE CONCUR: TUCHER, J.
BROWN, J.