People v. Wollett CA2/6

Filed 8/24/20 P. v. Wollett CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B299129 (Super. Ct. No. F411505002) Plaintiff and Respondent, (San Luis Obispo County)

v.

PATRICK OREN WOLLETT,

Defendant and Appellant.

Patrick Oren Wollett appeals from a postjudgment order denying his petition for resentencing under Penal Code1 section 1170.95. Wollett contends the court erred in finding that Senate Bill No. (SB) 1437, pursuant to which section 1170.95 was enacted, is unconstitutional. We agree and accordingly reverse. FACTUAL AND PROCEDURAL HISTORY In December 2007, Wollett and codefendant Chad Westbrook assaulted Joshua Houlgate with a baseball bat and a metal object after discovering him in bed with Wollett’s brother’s

All further undesignated statutory references are to the 1

Penal Code.

fiancé. When Houlgate tried to escape, Westbrook retrieved a shotgun and fatally shot him. Wollett was subsequently convicted of first degree murder (§§ 187, subd. (a), 189) and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury also found true allegations that Wollett personally inflicted great bodily injury in committing the assault (§ 12022.7, subd. (a)), that he personally used a deadly weapon in committing the murder (§ 12022, subd. (b)), and that a principal was armed with a firearm in committing the murder (§ 12022, subd. (a)(1)). Wollett was sentenced to an aggregate term of 32 years to life in state prison. On appeal, we reversed Wollett’s conviction of first degree murder due to instructional error regarding the natural and probable consequences doctrine of accomplice liability. (People v. Wollett (Feb. 16, 2012, B224204) [non-pub. opn.].) In doing so, we noted that “the prosecution did not argue that Wollett was liable for the murder because of his subjective intent to commit, facilitate, or encourage the murder. The prosecution argued that Wollett aided and abetted the assault and the murder was a natural and probable consequence of the assault, and the jury was instructed only on that theory. The instruction stated that, to find Wollett guilty of premeditated murder, the jury must find that he committed assault with a deadly weapon, a coparticipant in the assault committed the offense of murder, and a reasonable person in Wollett’s position would have known that murder was a natural and probable consequence of the assault. [Citation.]” (Id. at p. 5.) In reversing the first degree murder conviction, “[w]e conclude[d] that the trial court erred in failing to instruct the jury that to convict [Wollett] of first degree premeditated murder under the natural and probable consequences rule, the jury must find that first degree premeditated murder, not simply murder,