People v. Simmons CA1/5

Filed 9/24/20 P. v. Simmons CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A157812 v. ROBERT LEON SIMMONS, (Contra Costa County Super. Ct. No. 5-150202-0) Defendant and Appellant.

“In 2018, the Legislature passed and the Governor signed into law Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), legislation that prospectively amended the mens rea requirements for the offense of murder and restricted the circumstances under which a person can be liable for murder under the felony-murder rule or the natural and probable consequences doctrine. (Stats. 2018, ch. 1015.)” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 246 (Lamoureux).) Senate Bill 1437 added Penal Code section 1170.95,1 which authorizes a defendant previously convicted of felony murder or murder under a natural and probable consequences theory to file a petition seeking vacation of the conviction and resentencing.2

1All undesignated statutory references are to the Penal Code. 2Section 1170.95, subdivision (a) provides: “(a) A person convicted of felony murder or murder under a natural and probable consequences theory may

1

Appellant Robert Leon Simmons (Appellant) was charged with murder following a robbery during which an accomplice was shot and killed. Pursuant to a negotiated disposition, Appellant entered a no contest plea to voluntary manslaughter and a robbery charge and was sentenced to 15 years in prison. In April 2019, following the enactment of Senate Bill 1437, Appellant moved for recall of his sentence under section 1170.95. The trial court denied the petition, concluding section 1170.95 does not apply to defendants convicted of manslaughter. Appellant appealed. He argues he is entitled to resentencing under section 1170.95 because he “accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.” We disagree. Decisions of the California courts of appeal have uniformly concluded that the relief provided by section 1170.95 is limited to defendants convicted of murder. (See, e.g., People v. Paige (2020) 51 Cal.App.5th 194 [First District]; People v. Cervantes (2020) 44 Cal.App.5th 884 [Second District]; People v. Lopez (2019) 38 Cal.App.5th 1087, review granted Nov. 13, 2019, S258175 [Second District]; People v. Turner (2020) 45 Cal.App.5th 428 [Fourth District]; People v. Sanchez (2020) 48 Cal.App.5th 914 [Fourth District]; People v. Flores (2020) 44 Cal.App.5th 985 [Fourth District].) In