Filed 2/2/22 P. v. Wilson CA4/1
Opinion following transfer from Supreme Court
OPINION AFTER TRANSFER FROM CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D075612
Plaintiff and Respondent,
v. (Super. Ct. No. SCN067569)
ANTONY GLYN WILSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Harry M. Elias, Judge. Reversed and remanded with instructions.
Anthony J. Dain, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Julie L. Garland,
Assistant Attorney General, Lynne G. McGinnis and Quisteen S. Shum,
Deputy Attorneys General, for Plaintiff and Respondent.
In March 1998, a jury found Antony Glyn Wilson guilty of three counts
of attempted murder, among other things.
The court sentenced him to 32 years.
In February 2019, Wilson filed a petition for resentencing pursuant to
Penal Code1 section 1170.95. The trial court denied the petition, stating
Wilson was ineligible for relief because he was not convicted of first or second
degree murder.
Wilson appealed, and this court affirmed the denial of the petition,
relying on a body of case law that held section 1170.95 and Senate Bill
No. 1437 (Stats. 2018, ch.1015) (Senate Bill 1437) did not apply to cases such
as Wilson’s. (People v. Wilson (Nov. 20, 2019, D075612) [nonpub. opn.].)
Wilson petitioned for review, and the Supreme Court granted it, then
transferred the case to this court to reconsider in light of the newly enacted
Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775), which became
effective January 1, 2022. We requested and received supplemental briefs on
the impact of Senate Bill 775 on this case. Having now reconsidered the case,
including the agreement of the parties that the case should be reversed and
remanded, we will reverse the order denying the petition for resentencing
and remand the matter to the superior court with directions to appoint
counsel for Wilson and hold proceedings consistent with section 1170.95.
DISCUSSION
Prior to the enactment of Senate Bill 775, courts were divided over the
question of whether a person convicted of attempted murder was eligible for
resentencing under Senate Bill 1437 and section 1170.95. (People v. Alaybue
(2020) 51 Cal.App.5th 207, 222.) Senate Bill 775 addresses this conflict. The
Legislature’s stated purpose, in part, in enacting Senate Bill 775 was to
clarify that “persons who were convicted of attempted murder or
manslaughter under a theory of felony murder and the natural probable
1 Statutory references are to the Penal Code unless otherwise specified.
2
consequences doctrine are permitted the same relief as those persons
convicted of murder under the same theories.” (Stats. 2021, ch. 551, § 1.)
In their supplemental briefs, the parties recognize the purpose of
Senate Bill 775 as it applies to this case. We agree with the parties on the
effect of the new legislation. We accept the Attorney General’s concession.
The right to appointment of counsel under section 1170.95 arose when
Wilson filed a facially sufficient petition. (§ 1170.95, subd. (b)(3)); People v.
Lewis (2021) 11 Cal.5th 952, 960-972.) Additionally, the record before us
includes jury instructions for both the natural and probable consequences
doctrine and for aiding and abetting. In closing arguments, the prosecutor
introduced both the natural and probable consequences doctrine and a theory
of aiding and abetting. A jury instruction for the natural and probable
consequences doctrine may establish a prima facie showing of eligibility
(People v. Montes (2021) 71 Cal.App.5th 1001, 1006-1008), and nothing in the
record demonstrates Wilson is ineligible as a matter of law. Accordingly, we
reverse the trial court’s order denying the petition and remand the matter to
the trial court, with instructions to appoint counsel, issue an OSC, and
conduct an evidentiary hearing as required by statute. (§ 1170.95,
subds. (b)(3) & (d).)
3
DISPOSITION
The order denying Wilson’s petition for resentencing under
section 1170.95 is reversed. The matter is remanded to the superior court
with directions to appoint Wilson an attorney, issue an order to show cause,
and to conduct an evidentiary hearing as required by statute. We express no
opinion regarding the appropriate outcome.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
4