Filed 1/12/22 P. v. Tunstall CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v. A161231
ROBERT WILLIAM TUNSTALL,
Defendant and Appellant.
(Solano County Super. Ct.
No. FC11624)
MEMORANDUM OPINION1
Robert William Tunstall appeals from the trial court’s denial of his
petition for resentencing brought pursuant to section 1170.95. As relevant
here, Tunstall argues — and the Attorney General concedes — the order
must be reversed and the matter remanded for a new hearing under section
We resolve this case by memorandum opinion pursuant to California
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Standards of Judicial Administration, section 8.1, reciting only those facts
necessary to resolve the issue raised. Undesignated statutory references
are to the Penal Code. We deny Tunstall’s request for judicial notice as
unnecessary. By separate order filed this date, we dismiss as moot Tunstall’s
petition for writ of habeas corpus (case No. A164036).
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1170.95, subdivision (d)(3), as amended by Senate Bill No. 775 (2021–2022
Reg. Sess.) (Senate Bill 775). We accept the Attorney General’s concession
and reverse and remand.
In July 1976, Tunstall — then 18 years old — aided and abetted a
robbery that left one woman dead and another severely wounded. The
prosecution charged Tunstall and a codefendant, David Joel Day, with first
degree murder, attempted murder, and two counts of robbery. The
prosecution alleged firearm enhancements. After the preliminary hearing,
Day pled guilty to murder and one count of robbery; the trial court
subsequently struck the firearm allegations. The case proceeded against
Tunstall. At trial, numerous witnesses, including Tunstall, testified; a jury
convicted Tunstall of first degree murder and two counts of robbery. In late
1976, the trial court sentenced Tunstall to life in prison with the possibility of
parole. A division of this court affirmed. (People v. Tunstall (Sept. 21, 1977,
16456) [nonpub. opn.] (Tunstall I).)
In late 2018 — after serving more than 40 years in state prison —
Tunstall petitioned to vacate the murder conviction and for resentencing
under section 1170.95. The trial court appointed counsel and subsequently
issued an order to show cause. The hearing on the petition took place in
September 2020, having been delayed while the parties litigated the
constitutionality of the statute, and due to various issues arising out of the
COVID-19 pandemic. At the hearing, the parties stipulated the court could
consider the “available” portions of the record of conviction, consisting of:
(1) an excerpt of the trial transcript (closing arguments and jury instructions,
a colloquy regarding the jury’s questions on the charges, and the reading of
the verdict); (2) portions of the clerk’s transcript on Tunstall’s direct appeal;
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and (3) the Tunstall I opinion. The parties advised the court the remaining
trial transcripts had “been lost or destroyed.”
At the conclusion of the hearing, the trial court denied the petition.
Relying on the factual summary of the offenses recited in Tunstall I, the court
determined Tunstall was not the shooter and did not act with express malice,
but that the prosecution had established, beyond a reasonable doubt,
Tunstall was a major participant in the robbery who acted with reckless
indifference to human life under the factors identified in People v. Banks
(2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. The court
acknowledged the record was incomplete, but “nonetheless [found] there’s
sufficient facts to prove the case beyond a reasonable doubt by looking at the
totality of the record, even given its piecemeal nature.”
Tunstall appealed, raising several claims of error. During the
pendency of the appeal, the Governor signed Senate Bill 775 (2021–2022 Reg.
Sess.), which amends section 1170.95, effective January 1, 2022. Relevant
here, Senate Bill 775 delineates the evidence that may be considered at
a section 1170.95, subdivision (d) hearing held following the issuance of an
order to show cause. As amended, section 1170.95, subdivision (d)(3) now
provides in relevant part: “The admission of evidence in the hearing shall be
governed by the Evidence Code, except that the court may consider evidence
previously admitted at any prior hearing or trial that is admissible under
current law, including witness testimony, stipulated evidence, and matters
judicially noticed. The court may also consider the procedural history of the
case recited in any prior appellate opinion. . . . The prosecutor and the
petitioner may also offer new or additional evidence to meet their respective
burdens. A finding that there is substantial evidence to support a conviction
for murder . . . is insufficient to prove, beyond a reasonable doubt, that the
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petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3), as amended
by Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.)
In his supplemental briefing, the Attorney General concedes Senate
Bill 775 applies to this appeal. (See People v. Montes (2021) 71 Cal.App.5th
1001, 1006–1007.) The Attorney General also concedes Tunstall is entitled
to a new hearing on the resentencing petition in light of that legislation
because the trial court relied on facts recited in Tunstall I in finding him
ineligible for resentencing. And as the Attorney General observes, while “this
was permissible under the statute in place at the time of [Tunstall]’s hearing,
it is no longer permissible” under section 1170.95, subdivision (d)(3) as
amended by Senate Bill 775. We accept the Attorney General’s concession.
Having done so, we need not address Tunstall’s other challenges to the denial
of his resentencing petition.
DISPOSITION
The order denying Tunstall’s petition for resentencing is reversed. The
matter is remanded. On remand, the trial court is ordered to conduct a new
hearing in accordance with section 1170.95, subdivision (d)(3), as amended by
Senate Bill 775.
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Petrou, J.
A161231
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