People v. Captain CA1/5

Filed 9/25/20 P. v. Captain CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A157456 v. KERRY TREVONTE CAPTAIN, (Contra Costa County Super. Ct. No. 50811604) Defendant and Appellant.

Kerry Trevonte Captain appeals from an order that denied his motion for resentencing under Penal Code section 1170.951 on the ground that the statute applies only to persons convicted of murder under specified theories. He contends the statute should be read to apply also to persons who, like him, were charged with murder but pled no contest to voluntary manslaughter. We will affirm the order. I. FACTS AND PROCEDURAL HISTORY In October 2008, Captain was charged by information with murder (§ 187) and attempted second degree robbery (§§ 664/211). As a special circumstance, it was alleged that he committed the murder during the course of a robbery. (§ 190.2, subd. (a)(17).)

1 All statutory references herein are to the Penal Code.

1

In January 2012, pursuant to a negotiated disposition, Captain entered a plea of no contest to voluntary manslaughter (§ 192, subd. (a)) and attempted burglary (§§ 664/211) and admitted a firearm-use enhancement (§ 12022.5). In accord with the plea agreement, the court imposed a sentence of 16 years, eight months in state prison. In January 2019, Captain filed a petition in the trial court to vacate his voluntary manslaughter conviction and resentence him pursuant to the procedures set forth in section 1170.95, which was enacted under Senate Bill 1437, effective January 1, 2019. (Stats. 2018, ch. 1015, §4 .) The People opposed his petition on the ground that section 1170.95 provides relief only to persons convicted of murder. In May 2019, the court denied Captain’s petition, concluding he was ineligible for relief under the statute because he was convicted of voluntary manslaughter, not murder. This appeal followed. II. DISCUSSION A. Section 1170.95 Applies Only to Murder Section 1170.95, subdivision (a) reads as follows: “A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner