Filed 3/22/22 P. v. Valencia CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B299957
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA402808)
v.
OPINION ON REMAND
CLAUDIA VALENCIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, George Gonzalez Lomeli, Judge. Reversed
and remanded with directions.
Jennifer A. Gambale, 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, Daniel C. Chang and Christopher G. Sanchez,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Pursuant to order by the California Supreme Court, we
vacate our original opinion and issue this opinion instead.
In 2013, defendant and appellant Claudia Valencia was
convicted of attempted murder. (Pen. Code, §§ 664, 187,
subd. (a).)1 We affirmed the judgment on direct appeal. (People
v. Valencia (Oct. 20, 2014, B253431) [nonpub. opn.] (Valencia I).)
In 2019, following the enactment of Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (SB 1437), defendant filed a petition for
resentencing under section 1170.95. As is relevant here, the trial
court summarily denied the petition on the ground that
section 1170.95 did not apply to convictions for attempted
murder.
Defendant timely filed a notice of appeal. On November 24,
2020, we affirmed the trial court’s order on the ground that
section 1170.95 does not apply to convictions for attempted
murder. (People v. Valencia (Nov. 24, 2020, B299957) [nonpub.
opn.].)
Defendant filed a petition for review with the California
Supreme Court. While this case was pending, our Legislature
enacted and the Governor signed into law Senate Bill No. 775
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 551) (SB 775). SB 775
amended section 1170.95 to expand eligibility for resentencing to
persons convicted of attempted murder.
On February 10, 2021, the California Supreme Court
granted review in this case, and, in an order filed January 5,
2022, “transferred [the case]” back to the Court of Appeal “with
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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directions to vacate [our] decision and reconsider the cause in
light of” SB 775.
In light of the enactment of SB 775, we vacate our previous
opinion and remand the matter to the trial court for further
proceedings under section 1170.95, subdivision (c).
BACKGROUND
I. Underlying Attempted Murder Conviction
Based on a shooting that took place in 2012, defendant was
charged in an amended information filed by the Los Angeles
County District Attorney’s Office with attempted murder.
(§§ 664, 187, subd. (a).) The amended information also alleged
that the offense was committed willfully, deliberately, and with
premeditation (§ 664, subd. (a)); was committed for the benefit of,
at the direction of, and in association with a criminal street gang
(§ 186.22, subd. (b)(1)(C)); and that a principal used a firearm
(§ 12022.53, subds. (b), (c), (d) & (e)(1)). It was further alleged
that defendant had suffered a prior serious felony conviction
(§ 667, subd. (a)(1)), which also constituted a “strike” within the
meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)).
Defendant was tried along with two codefendants.
(Valencia I, supra, B253431 at p. 2.) “The prosecutor proceeded
under the theory that, even if defendant was not the shooter, she
was guilty as an aider and abettor and/or coconspirator under the
theory of natural and probable consequences.” (Id. at p. 5, fn. 3.)
In fact, the jury was instructed on the natural and probable
consequences doctrine of attempted murder. (Id. at p. 4.)
The jury found defendant guilty of attempted murder and
found true the firearm and gang allegations. The jury did not
find it true that the attempted murder was committed willfully,
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deliberately, and with premeditation. Defendant admitted the
prior. After striking the strike conviction, the trial court
sentenced defendant to serve 35 years to life in state prison.
In 2014, we affirmed the judgment on direct appeal.
(Valencia I, supra, B253431 at p. 11.)
II. Section 1170.95 Proceedings
On June 11, 2019, defendant filed a petition for
resentencing pursuant to section 1170.95. Defendant declared, in
relevant part, that she was convicted of attempted murder
pursuant to the felony murder rule or the natural and probable
consequences doctrine and that she could not now be convicted of
attempted murder because of the changes made to sections 188
and 189, effective January 1, 2019.
On June 25, 2019, the trial court summarily denied the
petition on the ground that section 1170.95 does not apply to
convictions for attempted murder.
Defendant timely appealed. 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 the
Supreme Court for review. 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 SB 775.
Following the transfer, the Attorney General and defendant
submitted supplemental briefs addressing the impact of SB 775
on this case.
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DISCUSSION
In his supplemental brief, the Attorney General concedes
that reversal and remand for further proceedings is appropriate.
We agree.
SB 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.)
As set forth above, prior to the enactment of SB 775, the
Court of Appeal was split on whether SB 1437 applied to
attempted murder as well as murder, with some courts holding
that SB 1437 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].)
SB 775 resolved this split of authority by amending
SB 1437 to explicitly afford relief to persons convicted of
attempted murder and manslaughter. (See, e.g., People v. Montes
(2021) 71 Cal.App.5th 1001, 1007 [a defendant “is eligible for
resentencing relief under section 1170.95 by virtue of his
attempted murder conviction so long as [he] was convicted under
a natural and probable consequences theory”].) SB 775’s
amendments to section 1170.95 became effective January 1, 2022.
Defendant’s appeal from the denial of her resentencing petition
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was not final by that date; thus, defendant may avail herself of
this latest amendment. (People v. Vieira (2005) 35 Cal.4th 264,
306; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
DISPOSITION
The order denying defendant’s petition for resentencing is
reversed, and the matter is remanded for proceedings pursuant
to section 1170.95, subdivision (c).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
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