People v. Tanner CA3

Filed 2/19/21 P. v. Tanner CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C089864

Plaintiff and Respondent, (Super. Ct. Nos. ) STKCRFE19910007040, v. SC050605A

WILLIE LEE TANNER,

Defendant and Appellant.

In 1992, defendant Willie Lee Tanner pled guilty to two counts of second degree murder arising from two separate incidents. The trial court sentenced him to 15 years to life, concurrent, for each count. In 2019, defendant filed a petition for resentencing under Penal Code1 section 1170.95, asserting he was eligible for resentencing under that statute and requested appointment of counsel. The trial court summarily denied the petition and

1 Further undesignated statutory references are to the Penal Code.

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request for counsel, finding he failed to state a prima facie case. On appeal, defendant contends the court erred in denying his petition because he stated a prima facie case under section 1170.95. We conclude defendant’s petition did not include all statutorily required information. We therefore reverse and remand with instructions for the trial court to deny the petition without prejudice, consistent with section 1170.95, subdivision (b)(2). FACTUAL AND PROCEDURAL BACKGROUND Defendant pled guilty to two counts of second degree murder, including a firearm enhancement on count 1, and an enhancement for personal use of a firearm during the commission of a felony on count 2. In 2019, defendant used a habeas corpus form to file a pro se “petition for writ of habeas corpus” (capitalization omitted) in the trial court, seeking appointment of counsel and resentencing pursuant to Senate Bill No. 1437 and section 1170.95. In his petition, defendant stated that he pled guilty to second degree murder because he believed he could have been convicted of first or second degree murder at trial pursuant to the natural and probable consequences doctrine. He further stated he was not the actual killer and sought an evidentiary hearing to “enable the Court to assess [his] participation as the aider and abettor.” Finally, he asserted he could not now be convicted of first or second degree murder for either count because of the changes made to sections 188 and 189, effective January 1, 2019. The trial court deemed defendant’s petition a petition for resentencing under section 1170.95 and issued a written order denying the petition. Taking the facts from the transcript of defendant’s guilty plea, the trial court found the petition did not support a prima facie case for section 1170.95 relief because defendant’s petition and actions, as set forth in his guilty plea, “at minimum” satisfied section 189, subdivision (e)(2) and (e)(3). Defendant timely appeals.