Error and/or relief
The defendant filed a petition for recall under section 1172.6, challenging his convictions for murder. The petition was denied, and the denial was affirmed on appeal. The opinion noted that the defendant had not challenged his convictions for attempted murder. The defendant then filed a section petition to challenge his convictions of attempted murder in light of legislation enacted to encompass attempted murder under section 1172.6. The trial court summarily denied that petition on the grounds that he had already filed a petition that had been denied.
That was error.
First Holding:
On January 1, 2019, SB. 1437 eliminated the natural and probable consequences doctrine as a basis for murder and limited the scope of the felony murder rule. SB 1437 also created the resentencing procedure at issue here. The defendant filed his first section 1172.6 petition seeking resentencing of his conviction for second degree murder pursuant to the changes to the law effectuated by SB 1437.
On January 1, 2022, while the defendant’s first petition was pending, SB 775 further amended the Penal Code to eliminate the natural and probable consequences doctrine as a theory of liability for attempted murder.
Authority:
SB 1437
SB 775
PEN 1172.6
Second Holding:
The defendant’s first petition sought resentencing of the murder conviction only. This court expressly did not consider the attempted murder convictions as they had not been presented for resentencing in the trial court.
The denial of the first petition did not prevent the defendant from subsequently seeking resentencing of the attempted murder convictions once that relief became available due to changes in the law. The second petition was not the same as the first.
We therefore reverse the trial court order denying the defendant’s second petition for resentencing. On remand, the trial court must appoint counsel for the defendant and conduct further proceedings under section 1172.6 as to his attempted murder convictions.
Authority:
People v. Farfan (2021) 71 Cal.App.5th 942, 949–951