Filed 3/4/22 P. v. Wright CA2/3
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B311217
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA044175)
v.
DALLAS RAY WRIGHT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Reversed.
Allen G. Weinberg, 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, Assistant
Attorney General, Noah P. Hill, Thomas C. Hsieh and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
Appellant Dallas Ray Wright appeals from a postjudgment
order denying his Penal Code section 1170.95 petition. 1 The trial
court found Wright ineligible for relief as a matter of law because
he was convicted of attempted murder, not murder, and we
affirmed its order. Effective January 1, 2022, the Legislature
enacted Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill
775), which amended section 1170.95 to provide relief to eligible
defendants convicted of attempted murder. Our Supreme Court
has transferred the matter back to us with directions to vacate
our prior decision and reconsider the cause in light of Senate Bill
775. We agree with the parties that amended section 1170.95
applies retroactively to Wright. We therefore vacate our previous
opinion, reverse the trial court’s denial of Wright’s petition, and
remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND2
1. The attempted murders, conviction, and original appeal
On November 25, 2008, two Los Angeles County Sheriff’s
officers were working undercover at a Lancaster mobile home
park, investigating graffiti related to the Mid Town Criminals
(MTC) criminal street gang. Wright drove past and slowed by the
officers’ vehicle. When they attempted to stop Wright, he led
them on a five-to-ten minute pursuit. At one point, he appeared
to be talking on a cellular telephone. The officers followed
Wright back to an area near an apartment complex, next to the
1 All further undesignated statutory references are to the
Penal Code.
2 We derive the factual and procedural background in part
from our unpublished opinion in this case, of which we take
judicial notice on our own motion. (Evid. Code, §§ 451, 459.)
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mobile home park. Wright’s vehicle slowed and Marcos R., an
MTC gang member, emerged from behind some bushes. Wright
pointed at Marcos and then at the officers. Marcos fired multiple
shots at the officers, some of which hit their vehicle. Wright and
Marcos were subsequently apprehended. Wright told detectives
that he fled because he believed the officers were rival gang
members. He called Marcos and told him he was being chased.
Marcos told him, “ ‘I got you’ ” and suggested that Wright drive
near the apartments. Wright did so, and heard gunshots after he
drove past Marcos.
At trial, the court instructed the jury on direct aiding and
abetting and the natural and probable consequences doctrine.
The jury convicted Wright of the willful, deliberate, and
premeditated attempted murders of both officers (§§ 664, 187,
subd. (a)), and two counts of assault with a semiautomatic
firearm (§ 245, subd. (b)). As to each offense, the jury also found
true a section 186.22 gang enhancement, and that a principal
personally used and discharged a firearm (§ 12022.53, subds. (b),
(c), (e)(1)). The trial court sentenced Wright to 40 years to life in
prison. A different panel of this Division affirmed Wright’s
judgment, with a minor sentence modification, in 2011. (People v.
Wright (Dec. 1, 2011, B226877) [nonpub. opn.].)
2. The section 1170.95 petition
On January 26, 2021, Wright filed a section 1170.95
petition for vacation of his attempted murder convictions and
resentencing. He appended to his petition a portion of the jury
instructions in the case and the verdict forms. He also requested
the appointment of counsel.
On January 28, 2021, the trial court summarily denied the
petition. Consistent with the law in effect at the time, the court
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found Wright was ineligible for relief as a matter of law because
he had been convicted of attempted murder, an offense to which
section 1170.95 did not extend. Wright was not present, and was
not represented by counsel. We affirmed the trial court’s order.
(People v. Wright (Oct. 18, 2021, B311217) [nonpub. opn.].)
On October 5, 2021, the Governor signed Senate Bill 775,
which took effect on January 1, 2022. (See People v. Montes
(2021) 71 Cal.App.5th 1001, 1006.) On December 22, 2021, our
Supreme Court granted Wright’s petition for review and
transferred the matter to us with directions to vacate our
decision and reconsider the cause in light of Senate Bill 775.
DISCUSSION
In supplemental briefing, Wright contends, and the People
concede, that the superior court’s ruling must be reversed and the
matter remanded for further proceedings in accordance with
amended section 1170.95. We agree.
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) limited accomplice liability under
the felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder. (People v. Gentile
(2020) 10 Cal.5th 830, 842–843; People v. Lewis (2021) 11 Cal.5th
952, 957, 959.) To achieve these goals, Senate Bill 1437 added
section 189, subdivision (e) (limiting application of the felony
murder rule) and section 188, subdivision (a)(3) (stating that
“[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.”)
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
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resentencing. As originally enacted, section 1170.95’s express
language encompassed only murder, not attempted murder or
manslaughter. Accordingly, prior to enactment of Senate Bill
775, California appellate courts concluded that section 1170.95
did not extend to convictions for those offenses. (See People v.
Flores (2020) 44 Cal.App.5th 985, 993–994.)
Senate Bill 775 amended section 1170.95 to encompass
attempted murder and manslaughter. The statute now provides:
“A person convicted of felony murder or murder under the
natural and probable consequence doctrine or other theory under
which malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder 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 . . . .” (§ 1170.95, subd. (a); see also
subd. (d)(1); People v. Porter (2022) 73 Cal.App.5th 644, 651–652.)
Under In re Estrada (1965) 63 Cal.2d 740, we assume that,
absent contrary evidence, an amendment reducing punishment
for a crime applies retroactively to all nonfinal judgments. (Id. at
p. 745; People v. Brown (2012) 54 Cal.4th 314, 323; People v.
Garcia (2018) 28 Cal.App.5th 961, 972–973.) Such is the case
with Senate Bill 775. (People v. Montes, supra, 71 Cal.App.5th at
pp. 1006–1007; People v. Porter, supra, 73 Cal.App.5th at p. 652.)
For retroactivity purposes, a judgment is not final until the time
for petitioning for a writ of certiorari in the United States
Supreme Court has passed. (People v. Vieira (2005) 35 Cal.4th
264, 306; People v. Garcia, at p. 973.) Wright’s appeal of the
denial of his section 1170.95 petition was not final when Senate
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Bill 775 was enacted and took effect, and therefore the
amendments apply retroactively to him.
Wright was an accomplice, not the actual shooter. His jury
was instructed on the natural and probable consequences
doctrine, as well as on direct aiding and abetting. Pursuant to
Senate Bill 775, he is no longer categorically excluded from
section 1170.95 relief. The record before us does not include the
full set of jury instructions, and the verdict forms do not show, as
a matter of law, that the jury found Wright personally had the
intent to kill or personally premeditated and deliberated.
Therefore, we cannot eliminate the possibility that Wright was
convicted under the natural and probable consequences doctrine.
(See People v. Montes, supra, 71 Cal.App.5th at pp. 1007–1008.)
Summary denial of the petition was improper under amended
section 1170.95. (See People v. Lewis, supra, 11 Cal.5th at
pp. 971–972; People v. Montes, at pp. 1007–1008.) The matter
must be remanded for the appointment of counsel (§ 1170.95,
subd. (b)(3)) and further proceedings in accordance with amended
section 1170.95.
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DISPOSITION
The order denying Wright’s section 1170.95 petition is
reversed. The matter is remanded for further proceedings,
including the appointment of counsel for Wright, consistent with
section 1170.95 as amended by Senate Bill 775.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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