Filed 4/21/22 P. v. Devlin CA2/1
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B297848
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA039719)
v.
PAUL DEVLIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Upinder S. Kalra, Judge. Reversed and
remanded.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles S. Lee, Deputy
Attorney General, for Plaintiff and Respondent.
____________________
In 2001, a jury convicted Paul Devlin of attempted murder,
residential robbery, criminal threats, and unlawfully driving or
taking a vehicle, and the trial court found he had committed two
prior serious or violent felonies. He was sentenced to 50 years to
life in prison. On February 13, 2019, Devlin filed a petition in the
superior court for resentencing under Penal Code section
1170.95,1 which offers resentencing to those convicted of murder
under specified theories, and requested the appointment of
counsel. The trial court summarily denied the petition without
appointing counsel, finding Devlin was ineligible for relief
because he had been convicted of attempted murder, not murder.
We affirmed the court’s order.
After our decision, the Legislature passed and the Governor
signed into law Senate Bill No. 775, which amended subdivision
(a) of section 1170.95 to permit relief for certain petitioners
convicted of “attempted murder under the natural and probable
consequences doctrine,” resolving an ongoing issue in the courts.
(Sen. Bill No. 775 (2020-2021 Reg. Sess.) at § 2.) The amended
section 1170.95, subdivision (a)(3), states that relief for
individuals convicted of attempted murder may be available if
they could not presently be convicted of murder or attempted
murder because of changes that Senate Bill No. 1437 made to
sections 188 and 189 in 2018. (Stats. 2018, ch. 1015, §§ 2-3.)
Where a section 1170.95 petitioner’s jury was instructed on
the natural and probable consequences theory of liability for
attempted murder, but the trial court summarily denied the
1 Undesignated statutory references will be to the Penal
Code.
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petition based on prior law, section 1170.95 now requires a
reviewing court to reverse the judgment and remand the matter
for further proceedings under subdivision (c). (People v. Montes
(2021) 71 Cal.App.5th 1001.)
Accordingly, on January 26, 2002, our Supreme Court,
which had granted review of our opinion, transferred the matter
back to us with directions to vacate our decision and reconsider
the cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551) and
People v. Lewis (2021) 11 Cal.5th 952. (People v. Devlin (Jan. 26,
2022, S263124) ___Cal.5th___ [2022 Cal. Lexis 339, at *1].)
Here, Respondent observes that the record does not reflect
whether the jury was instructed on the faulty theory. Absent
such an indication, remand is proper. (Montes, supra, 71
Cal.App.5th at p. 1007 [“where the record of conviction does not
refute the claims of eligibility in the section 1170.95 petition, the
petitioner has made a prima facie showing for relief”].)
Therefore, Respondent concedes, Devlin is entitled to further
proceedings under section 1170.95, subdivision (c).
We agree, and therefore vacate our prior decision and
remand the matter for further proceedings pursuant to
subdivision (c) of section 1170.95.
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DISPOSITION
Our prior decision is vacated, the trial court’s order is
reversed, and the matter remanded for further proceedings.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
VOGEL, J.*
* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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