Opinion
B301604
04-21-2020
THE PEOPLE, Plaintiff and Respondent, v. ALBERT ABILEZ VIEYRA, Defendant and Appellant.
Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. KA031387) APPEAL from an order of the Superior Court of Los Angeles County. Steven D. Blades, Judge. Reversed and remanded for further proceedings. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
On September 30, 2018, the Governor signed Senate Bill No. 1437 (2018 Reg. Sess.) (S.B. 1437) in order to "amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) In addition to amending Penal Code sections 188 and 189, S.B. 1437 also added section 1170.95, which created a procedure whereby a person whose felony murder conviction was final, but who could not have been convicted under the amended statutes, could petition to have the conviction vacated. (§ 1170.95, subd. (a).)
All further statutory references are to the Penal Code unless otherwise indicated. --------
S.B. 1437 went into effect on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.)
In 1997, defendant and appellant Albert Abilez Vieyra was convicted of second degree murder, first degree robbery, two counts of first degree burglary, and grand theft of a vehicle. (People v. Vieyra (Jan 12, 1999, B119438) [nonpub. opn.], p. 1 (Vieyra I).) He was sentenced to state prison for 30 years to life with a consecutive determinate sentence of 22 years. (Vieyra I, supra, B119438, p. 2.) He appealed his conviction, and on January 12, 1999, we affirmed in part and reversed in part, striking the 16-month sentence for grand theft of a vehicle and staying the 32-month term for burglary; in all other respects, we affirmed the judgment. (Vieyra I, supra, B119438, p. 8.)
In January 2019, defendant filed a petition for resentencing pursuant to section 1170.95. Specifically, he asserted that he was convicted of second degree murder pursuant to the natural and probable consequences doctrine and could not now be convicted of murder because of changes made to section 188.
On August 9, 2019, the trial court denied his petition on the grounds that section 1170.95 is unconstitutional.
Defendant appeals, arguing that the trial court erred in finding section 1170.95 unconstitutional. The People agree that the trial court erred when it found S.B. 1437 unconstitutional. In fact, "the Attorney General is providing a uniform defense of the law throughout the State."
We agree with the parties. (See, e.g., People v. Lamoureux (2019) 42 Cal.App.5th 241, 246; People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 279-289.) Accordingly, we reverse the trial court's order and remand the matter for further proceedings consistent with the procedure set forth in section 1170.95, subds. (c)-(e).
DISPOSITION
The order denying defendant's petition to vacate his murder conviction and for resentencing is reversed. The matter is remanded to the trial court for further proceedings.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, Acting P. J.
ASHMANN-GERST We concur: /s/_________, J.
CHAVEZ /s/_________, J.
HOFFSTADT