Opinion
B311827
12-09-2021
THE PEOPLE, Plaintiff Respondent, v. SALLY MARIE SEO, Defendant and Appellant.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. YA086387, Bruce E. Brodie, Judge. Reversed and remanded with directions.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Theresa A. 1
Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
MOOR, J.
Defendant and appellant Sally Marie Seo was convicted by plea of attempted murder in 2015. She appeals from the trial court's postjudgment order denying her petition for resentencing pursuant to Penal Code section 1170.95 and Senate Bill No. 1437 (Senate Bill 1437). The current version of section 1170.95 provides for vacatur of a murder conviction obtained under either the natural and probable consequences doctrine or, under certain circumstances, the felony murder theory of liability. (People v. Martinez (2019) 31 Cal.App.5th 719, 723.)
All further statutory references are to the Penal Code unless otherwise indicated.
We have interpreted current section 1170.95 to authorize relief for defendants convicted of murder, but not attempted murder. (People v. Harris (2021) 60 Cal.App.5th 557, 566, review granted Apr. 21, 2021, S267529; People v. Love (2020) 55 Cal.App.5th 273, 279, review granted Dec. 16, 2020, S265445; People v. Alaybue (2020) 51 Cal.App.5th 207, 222-225; People v. Dennis (2020) 47 Cal.App.5th 838, 841, review granted July 29, 2020, S262184; People v. Munoz (2019) 39 Cal.App.5th 738, 753769, review granted Nov. 26, 2019, S258234.) In light of our precedent, the trial court denied Seo's section 1170.95 petition without first appointing counsel, ordering briefing, and issuing an order to show cause. On appeal, Seo argued that this was error, because she filed a facially sufficient petition. 2
On October 5, 2021, after the briefing was completed in this matter, the governor signed Senate Bill No. 775 (Stats. 2021, ch. 551, §§ 1-2) which, effective January 1, 2022, amends Penal Code section 1170.95, subdivision (a) to permit a person convicted of attempted murder under the natural and probable consequences doctrine to file a petition with the court that sentenced the petitioner to have the petitioner's attempted murder conviction vacated and to be resentenced. We invited the parties to file briefs regarding whether the matter should be remanded to the trial court, in light of the fact that Seo's appeal will likely still be pending when Senate Bill No. 775 goes into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306 ["'[F]or the purpose of determining the retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed'"].)
The parties filed letter briefs. Seo asserts that Senate Bill No. 775 "[c]larifies 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." (Sen. Bill No. 775 (2020-2021 Reg. Sess.) at § 1(a).) She urges us to remand the matter to the trial court for further proceedings in light of the fact that her case will still be pending when Senate Bill No. 775 becomes effective. She asserts that further consideration of this appeal serves no purpose and would be a waste of this court's time and resources.
The People argue that Seo's claims under Senate Bill No. 775 are not yet ripe because the law has not gone into effect. However, assuming that Senate Bill No. 775 applies to Seo's case, 3 the matter should be remanded for the trial court to issue an order to show cause and hold an evidentiary hearing on or after January 1, 2022. (See § 1170.95, subd. (d).)
We agree with the People that Seo's claims are not yet ripe, but because Senate Bill No. 775 will amend section 1170.95 to provide relief to petitioners convicted of attempted murder and will apply to all appeals that are not final as of January 1, 2022, we will reverse the matter and remand to the trial court to appoint counsel and order briefing after Senate Bill No. 775 becomes effective on January 1, 2022. (See People v. Garcia (2018) 28 Cal.App.5th 961, 973 [remanding matter that would likely still be pending on effective date of Senate Bill No. 1393 to trial court for resentencing after effective date].)
DISPOSITION
The matter is reversed and remanded to the trial court with directions to appoint counsel and order briefing after Senate Bill No. 775 becomes effective on January 1, 2022.
We concur: RUBIN, P.J., BAKER, J. 4