Filed 11/2/21 P. v. Ramirez CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B307919
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA397039)
v.
EFRAIN RAMIREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Douglas Sortino, 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, Noah P. Hill, Daniel C. Chang
1
and Heidi Salerno, Deputy Attorneys General, for Plaintiff
and Respondent.
__________________________________
INTRODUCTION
Appellant Efrain Ramirez appeals from the superior
court’s denial of his petition for resentencing filed under
Penal Code section 1170.95, alleging he was convicted of two
counts of attempted murder and requesting the appointment
of counsel.1 The superior court denied his petition without
appointing counsel, concluding that persons convicted of
attempted murder are ineligible for relief under section
1170.95. After this appeal was deemed submitted but before
we issued an opinion, the Governor approved Senate Bill No.
775 (2021-2022 Reg. Sess.) (SB 775). (Stats. 2021, ch. 551,
§ 2.) This legislation, which takes effect on January 1, 2022,
amends section 1170.95 to permit certain persons convicted
of attempted murder to seek relief. (Cal. Const., art. IV, § 8;
Stats. 2021, ch. 551, § 2.) Accordingly, we vacated the
submission of this appeal and requested further briefing on
the effects of SB 775 on this appeal. In their supplemental
briefing, both parties agreed that the matter should be
remanded to permit the superior court to appoint counsel for
appellant and conduct further proceedings under the new
section 1170.95 after January 1, 2022. We agree.
1 Undesignated statutory references are to the Penal Code.
2
STATEMENT OF RELEVANT FACTS
A. Underlying Crime
In April 2012, appellant was accused of driving the car
from which codefendant Edwin Celis shot at victim Bryan G.
and later at victim “John Doe.” (People v. Ramirez (Dec. 20,
2016, B267516) 2016 Cal.App.Unpub. LEXIS 9140, *2-*4
(Ramirez I).) Appellant was charged by information with the
attempted murder of Bryan G. and John Doe, and the
charges were accompanied by gang and firearm allegations.
(Id. at *2.)
The jury found appellant guilty on both counts, and
found true the gang and firearm allegations. (Ramirez I,
supra, 2016 Cal.App.Unpub. LEXIS 9140, at *15-*16.) For
the first count (attempted murder of Bryan G.), the court
imposed a sentence of life with the possibility of parole for
the attempted murder, plus 25 years to life for the firearm
allegation. (Id. at *16.) For the second count (attempted
murder of John Doe), the court imposed a consecutive
sentence of life with the possibility of parole for the
attempted murder, plus 20 years for the firearm allegation.
(Ibid.) The court also imposed a restitution fine. (Id. at
*17.) After appellant appealed, we modified the judgment to
clarify that the restitution fine was joint and several with
codefendant Celis, but otherwise affirmed his conviction.
(Id. at *17, *27.)
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B. Appellant’s Petition for Resentencing
In July 2020, appellant petitioned for resentencing
under section 1170.95, alleging that he “was convicted of 1st
or 2nd degree attempted murder, 2 counts under the natural
and probable consequences doctrine,” and requesting the
appointment of counsel. The court denied the petition
without appointing counsel, finding that “[a] jury convicted
defendant of two counts of willful, deliberate, and
premeditated attempted murder” and that “[t]he offense of
attempted murder is outside the scope of section 1170.95.”
Appellant timely appealed.
DISCUSSION
“Senate Bill 1437 [SB 1437] ‘amend[ed] 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.’” (People v. Gentile (2020) 10
Cal.5th 830, 842.) The bill also “added section 1170.95 to
provide a procedure for those convicted of felony murder or
murder under the natural and probable consequences
doctrine to seek relief . . . .” (Id. at 843.)
Prior to SB 775, courts unanimously held that “the
relief provided in section 1170.95 is limited to certain
murder convictions and excludes all other convictions,
including a conviction for attempted murder.” (People v.
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Larios (2019) 42 Cal.App.5th 956, 966, 970, review granted
Feb. 26, 2020, S259983.) However, SB 775 amends
subdivision (a) of section 1170.95 to read, in pertinent part:
“A person convicted of . . . attempted murder under the
natural and probable consequences doctrine . . . may file a
petition with the court that sentenced the petitioner to have
the petitioner’s . . . attempted murder . . . conviction vacated
and to be resentenced on any remaining counts . . . .” (Stats.
2021, ch. 551, § 2.) The People concede that under the
amended section 1170.95, appellant “may be able to
establish a prima facie showing of eligibility.” Because
appellant’s judgment will not be final until after the new
section 1170.95 takes effect, we remand the matter to the
trial court for further proceedings, to occur after January 1,
2022. (See People v. Garcia (2018) 28 Cal.App.5th 961, 973
[because defendant’s judgment will not be final until after
effective date of relevant Senate Bill, appropriate to remand
for proceedings after the effective date].)
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DISPOSITION
The order denying appellant’s section 1170.95 petition
is reversed and the matter is remanded with directions to
appoint counsel for appellant and to proceed, on or after
January 1, 2022, consistent with the pertinent provisions of
section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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