Filed 2/22/22 P. v. Burns CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308077
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA348603)
v.
OPINION ON REMAND
DONVAY LAMARR BURNS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Frederick N. Wapner, 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 Pitney, Assistant
Attorney General, Jonathan J. Kline and Kristen J. Inberg,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
The trial court denied the Penal Code section 1170.95 1
petition filed by Donvay LaMarr Burns (appellant) to vacate the
voluntary manslaughter conviction entered against him pursuant
to a plea agreement. On appeal, he claimed that the trial court
erred when it followed People v. Cervantes (2020) 44 Cal.App.5th
884, 886 (Cervantes) and ruled that he was ineligible for relief
because the statute applies to murder convictions but not
voluntary manslaughter convictions based on no contest pleas.
Alternatively, he contended that section 1170.95 violates equal
protection (U.S. Const., 14th Amend., Cal. Const., art. I, § 7) and
substantive due process.
We affirmed in our prior opinion issued on October 12,
2021, because the operative version of section 1170.95, by its
express terms, did not apply to manslaughter convictions. On
December 22, 2021, our Supreme Court granted appellant’s
petition for review and transferred the matter back to us with
directions to vacate our decision and reconsider the cause based
on changes to the law after section 1170.95 was amended
effective January 1, 2022, by Senate Bill No. 775 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 551). That amendment makes section
1170.95 applicable to manslaughter convictions that were entered
pursuant to plea agreements.
We reverse and remand to the trial court with directions to
conduct a new prima facie review hearing under section 1170.95,
subdivision (c).
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTS
Appellant was charged with multiple crimes, including
murder (§ 187) and assault with a firearm (§ 245, subd. (a)(2)), in
an amended information containing various enhancement
allegations.2 On May 3, 2012, appellant pleaded no contest to
voluntary manslaughter (§ 192, subd. (a)) and assault with a
firearm. He admitted gang allegations (§ 186.22, subd. (b)(1)(C))
and gun allegations (§ 12022.5, subd. (a)). The trial court
sentenced him to an aggregate determinate prison term of 25
years, and an additional concurrent prison term of three years.
On April 29, 2019, appellant filed his petition for
resentencing. At the prima facie review hearing under section
1170.95, subdivision (c), appellant’s counsel argued that the
Legislature intended for a defendant to be eligible for relief if he
was facing a murder charge based on the natural and probable
consequences theory and then pleaded guilty to voluntary
manslaughter in lieu of trial. The trial court disagreed based on
Cervantes and denied the petition.
This appeal followed.
DISCUSSION
As amended by Senate Bill No. 775, section 1170.95,3
subdivision (a) provides that a “person convicted of felony murder
or murder under the natural and probable consequences doctrine
or other theory under which is imputed to a person based solely
on that person’s participation in a crime, attempted murder
2 In the original petition, he was charged with committing
murder with a codefendant.
3 Section 1170.95 was added by Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4).
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under the natural and probable consequences doctrine, or
manslaughter may file a petition with the court that sentenced
the petitioner to have the petitioner’s murder, attempted murder,
or manslaughter conviction vacated and to be resentenced on any
remaining counts when all of the following conditions apply: [¶]
(1) A complaint or information, or indictment was filed against
the petitioner that allowed the prosecution to proceed under a
theory of felony murder, murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime, or attempted murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of
murder, attempted murder or manslaughter following a trial or
accepted a plea offer in lieu of a trial at which the petitioner
could have been convicted of murder or attempted murder. [¶]
(3) The petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3), bolding
omitted.)
Section 1170.95, subdivision (c) provides: “Within 60 days
after service of a petition that meets the requirements set forth
in subdivision (b), the prosecutor shall file and serve a
response. The petitioner may file and serve a reply within 30
days after the prosecutor’s response is served. . . . After the
parties have had an opportunity to submit briefings, the court
shall hold a hearing to determine whether the petitioner has
made a prima facie case for relief. If the petitioner makes a
prima facie showing that the petitioner is entitled to relief, the
court shall issue an order to show cause. If the court declines
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to make an order to show cause, it shall provide a statement
fully setting forth its reasons for doing so.”
As amended, section 1170.95 applies to voluntary
manslaughter convictions entered after a defendant accepted a
plea offer in lieu of trial. The amended version of section 1170.95
supersedes Cervantes, which held “that section 1170.95 applies
only to murder convictions[.]” (Cervantes, supra, 44 Cal.App.5th
at p. 886.) As a consequence, the trial court’s reason for denying
appellant’s petition at the prima facie review stage of the inquiry
no longer supports the denial order and appellant is entitled to
another hearing.
DISPOSITION
The order denying appellant’s section 1170.95 petition is
reversed. The matter is remanded with directions to the trial
court to conduct another prima facie review hearing pursuant to
section 1170.95, subdivision (c).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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