People v. Smith CA2/1

Filed 10/30/20 P. v. Smith CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B301801

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA061191) v.

REMONE LEE SMITH,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Kathryn A. Solorzano, Judge. Affirmed. Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles Lee and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Remone Lee Smith challenges on appeal the trial court’s denial of his petition for resentencing under Penal Code section 1170.95,1 which was enacted to implement changes in the murder laws made by Senate Bill No. 1437. (People v. Lamoureux (2019) 42 Cal.App.5th 241, 249.) Section 1170.95 affords a procedural vehicle for a defendant to challenge retroactively a murder conviction that rests on a theory of murder is no longer valid. If petitioner makes a prima facie showing that he is entitled to relief under the statute, then the trial court “shall issue an order to show cause.” (§ 1170.95, subd. (c).) Here, the trial court concluded that Smith had not established a prima facie showing of entitlement to relief because Smith pleaded guilty to voluntary manslaughter, a crime not contemplated by the express and unambiguous language of section 1170.95. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND Smith filed a habeas corpus petition, which the trial court construed as a petition for resentencing pursuant to Senate Bill No. 1437 and section 1170.95. The parties stipulated to the following facts: “On June 5, 2006, during a class break, some female students got into a fight at Venice High School. The brother of one of the fighters saw his sister fighting, so he broke up the fight. One of the fight’s participants then threatened to have the brother beaten up for interfering with the fight.