People v. Traughber CA2/6

Filed 11/17/20 P. v. Traughber CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B301557 (Super. Ct. Nos. F240517 and Plaintiff and Respondent, F240517001) (San Luis Obispo County) v.

TOMMY ANTHONY TRAUGHBER, Defendant and Appellant.

Tommy Anthony Traughber appeals the denial of his petition to vacate a 1997 first degree murder conviction and 26- year-to-life state prison sentence. (Pen. Code, § 1170.95, subd. (c).)1 The trial court denied the petition without an evidentiary hearing even though the petition made a prima facie showing that appellant was eligible for resentencing relief. We reverse and remand with directions to issue an order to show cause and conduct an evidentiary hearing pursuant to section 1170.95, subdivision (d)(3).

All statutory references are to the Penal Code unless 1

otherwise stated.

Facts and Procedural History In 1997, appellant was convicted of murder (§ 187, subd. (a)), second degree burglary (§ 459) and arson (§ 451, subd. (d)) with a firearm enhancement. (§ 12022, subd. (a)1)). Appellant submitted on the preliminary hearing transcript which showed that appellant (age 17) and his cohort, Travis Ron Williams (age 15), were involved in a home-invasion burglary.2 The victim, a 75-year-old widow, was shot in the back of the head. It was a one gun, one bullet killing. Appellant said Williams was the shooter and Williams said it was appellant. Appellant, like Williams, was sentenced to 26 years to life state prison. We affirmed the conviction in an unpublished opinion and modified the judgment to add a $5,000 restitution fine pursuant to section 1202.45. On January 2, 2019, the day after Senate Bill No. 1437 became effective (2017–2018 Reg. Sess; Stats. 2018, ch. 1015) (SB 1437), appellant filed a petition for resentencing. SB 1437 provided that defendants convicted of murder under the felony murder rule or natural and probable consequences doctrine could petition for resentencing based on statutory changes to Penal Code sections 188 and 189. (§ 1170.95, subd. (a).) The superior court appointed counsel for appellant and denied the prosecution'’ motion to dismiss, finding that SB 1437 was constitutional. At the October 4, 2019 hearing, the trial