Filed 3/3/22 P. v. Love 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B302892
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA138408)
v.
DAVAUGHN LOVE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Eleanor J. Hunter, Judge. Reversed and
remanded.
Kelly C. Martin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Charles S. Lee, Theresa A.
Patterson, and Amanda V. Lopez, Deputy Attorneys General, for
Plaintiff and Respondent.
******
Davaughn Love (defendant), who was convicted of
attempted murder and other crimes in 2016, appeals from the
denial of his petition for resentencing under Penal Code section
1170.95.1 In a partially published opinion issued on October 1,
2020, we affirmed that denial solely on the ground that section
1170.95 did not accord relief to persons convicted of attempted
murder. (People v. Love (Oct. 1, 2020, B302892) (Love).)
Defendant filed a petition for review by the California Supreme
Court, which was held along with numerous similar cases. While
this case has been pending, our Legislature enacted and the
Governor signed into law Senate Bill No. 775 (Senate Bill 775).
(Stats. 2021, ch. 551.) Senate Bill 775 amended section 1170.95
to expand eligibility for resentencing to persons convicted of
attempted murder. On December 16, 2020, the California
Supreme Court granted review in this case, and, in an order filed
January 26, 2022, transferred the case back to this court with
directions to vacate our prior decision and reconsider in light of
Senate Bill 775. In light of the enactment of Senate Bill 775, we
vacate our previous opinion and decision in this case (Love) and
remand the matter to the trial court for a new evidentiary
hearing pursuant to section 1170.95, subdivision (d)(3).
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
In mid-August 2015, defendant drove a fellow gang
member (Antwoine Vaughn) into a rival gang’s territory in the
midst of a retaliation campaign against that rival gang. They
enlisted a third gang member to follow them in a separate car
and videotape their anticipated exploits. Once they arrived in
the rival gang’s territory, “[defendant] stopped the car, and
Vaughn got out and approached a man standing on the sidewalk
with a woman and two children. After exchanging a few words,
Vaughn pulled out a gun and opened fire on the man’s back.
Vaughn continued ‘shooting wildly’ as the man tried to flee into a
nearby intersection. All in all, 10 bullets hit the man (causing
injuries to his head, chest, leg and hand), and three bullets struck
a nearby car that was driving through the intersection. Vaughn
got back into the car, and [defendant] drove away.” The next day,
defendant sent a text message to Vaughn, reminding him to
“move” the gun.
B. Prosecution, conviction and appeal
The People charged defendant with (1) the attempted
murder of the man Vaughn shot 10 times (§§ 187, subd. (a), 664,
subd. (a)), and (2) shooting at the occupied vehicle struck by
another three bullets Vaughn shot (§ 246). The People further
alleged that these crimes were committed “for the benefit of, at
the direction of, or in association with a criminal street gang” (§
2 We draw these facts from our prior, unpublished opinion
affirming defendant’s convictions. (People v. Vaughn & Love
(May 30, 2019, B277941) (Vaughn & Love).)
3
186.22, subd. (b)(4)), and that a principal had discharged a
firearm and caused great bodily injury (§ 12022.53, subd. (d)).3
The trial court instructed the jury that defendant could be
held liable for attempted murder (1) if he aided and abetted
Vaughn in committing the attempted murder, (2) if he aided and
abetted Vaughn in committing an “assault” and murder was a
natural and probable consequence of that assault, or (3) if he and
Vaughn conspired to commit an assault and murder was a
foreseeable consequence of that conspiracy.
The jury convicted defendant of attempted murder and
shooting at an occupied vehicle. The jury also found true the
gang and firearm allegations.
The trial court sentenced defendant to state prison for life,
with a minimum term of 47 years. For the attempted murder,
the court sentenced defendant to life in prison with a minimum
term of 32 years, with the minimum comprised of 7 years for the
attempted murder itself plus an additional 25 years for the
firearm enhancement. For shooting at an occupied vehicle, the
court imposed a consecutive life term with a minimum term of 15
years.
Defendant appealed his conviction and sentence. We
affirmed defendant’s conviction and sentence but remanded the
matter so that the trial court could determine whether to exercise
its discretion to strike the firearm enhancement.
Defendant petitioned for review before the Supreme Court,
and the Supreme Court granted review and remanded the matter
3 The People also alleged that defendant had suffered two
prior “strike” convictions under our three strikes law (§§ 667,
subds. (b)-(j), 1170.12, subds. (a)-(d)) and had served one prior
prison term (§ 667.5, subd. (b)).
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to us with directions to consider whether to apply the newly
enacted Senate Bill 1437.
After entertaining further briefing on the applicability of
Senate Bill 1437, we issued an unpublished opinion on May 30,
2019, that (1) affirmed defendant’s convictions, (2) remanded the
matter for the trial court to consider whether to strike the
firearm enhancement, and (3) denied any relief pursuant to
Senate Bill 1437 without prejudice to defendant filing a petition
for relief with the trial court pursuant to the mechanism set forth
in section 1170.95 for seeking relief under the bill.
II. Procedural Background
On September 18, 2019, and October 7, 2019, defendant
filed two separate petitions seeking to vacate his attempted
murder conviction on the basis of section 1170.95. On October
22, 2019, the trial court denied his motions on the ground that
section 1170.95 did not apply to convictions for attempted
murder.
On October 24, 2019, defendant filed a motion asking the
trial court to exercise its newly conferred discretion to strike the
25-year firearm enhancement on the attempted murder count.
The trial court held a hearing on November 20, 2019. After
recounting the facts of the case the court expressed its
“confiden[ce]” that defendant “knew what was going on” and was
“integral to the shooting.” Given defendant’s “integral” role, the
court declined to “exercise its discretion to strike the gun
allegation.”
On November 20, 2019, defendant filed a notice of appeal
from the order denying his petitions for relief under section
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1170.95.4 At that time, the Court of Appeal was split on whether
section 1170.95 applied to attempted murder convictions. We
affirmed the order denying the petition because we interpreted
then-existing section 1170.95 to authorize relief for defendants
convicted of murder, but not attempted murder. (People v. Love
(2020) 55 Cal.App.5th 273, 279, review granted Dec. 16, 2020,
S265445 (Love).) Defendant petitioned for review in the Supreme
Court. The Supreme Court granted review, transferred the
matter back to this court, and directed us to vacate our prior
decision and reconsider in light of Senate Bill 775. Following the
transfer, the Attorney General and defendant submitted
supplemental briefs addressing the impact of Senate Bill 775 on
this case.
DISCUSSION
In his supplemental brief, the Attorney General concedes
that reversal and remand for a new hearing is appropriate. We
agree.
Senate Bill 1437 enacted section 1170.95, which
“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.” (Stats. 2018, ch. 1015, § 1, subd. (f);
People v. Gentile (2020) 10 Cal.5th 830, 842.)
Prior to the enactment of Senate Bill 775, the Court of
Appeal was split on whether section 1170.95 applied to attempted
4 On May 6, 2020, we issued an order construing that notice
of appeal also to encompass the trial court’s judgment that
declined to strike the firearm enhancement.
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murder as well as murder, with some courts holding that section
1170.95 did not apply to attempted murder at all, others holding
that it applied only prospectively to attempted murder, and still
others holding that it applied both prospectively and retroactively
to nonfinal attempted murder convictions. (See Love, supra, 55
Cal.App.5th at pp. 278-279 [summarizing the split of authority as
of Oct. 1, 2020].)
Senate Bill 775 resolved this split of authority by amending
section 1170.95 to explicitly afford relief to persons convicted of
attempted murder and manslaughter. Senate Bill 775’s
amendments to section 1170.95 became effective January 1, 2022.
Defendant’s appeal from the denial of his resentencing petition
was not final by that date; thus, defendant may avail himself of
this latest amendment. (People v. Vieira (2005) 35 Cal.4th 264,
306; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed, and the matter remanded for an evidentiary hearing
pursuant to section 1170.95, subdivision (d)(3), as amended by
Senate Bill 775.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.,
ASHMANN-GERST
_________________________, J.
CHAVEZ
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