People v. Kersting CA1/1

Filed 3/1/21 P. v. Kersting CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A159901 v. MORRIS KERSTING, (Solano County Super. Ct. No. FC 18026) Defendant and Appellant.

Morris Kersting appeals from an order summarily denying his petition under Penal Code1 section 1170.95, which permits a person convicted of felony murder or murder under a natural and probable consequences theory to seek resentencing. Kersting’s appellate counsel filed a brief asking this court to conduct an independent review of the record for arguable issues, and Kersting was informed that he could file a supplemental brief but did not do so. We affirm. I. BACKGROUND “Effective January 1, 2019, Senate Bill [No.] 1437 [(2017–2018 Reg. Sess.) (Senate Bill No. 1437) (Stats. 2018, ch. 1015)] amended murder liability under the felony-murder and natural and probable consequences

1 All further statutory references are to the Penal Code.

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theories. The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, ‘[m]alice shall not be imputed to a person based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).)” (People v. Turner (2020) 45 Cal.App.5th 428, 433.) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless he or she “was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).) Senate Bill No. 1437 also enacted section 1170.95, which authorizes “[a] person convicted of felony murder or murder under a natural and probable consequences theory [to] 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” so long as three conditions are met: “(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 could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).) Any petition that fails to make “a prima facie showing that the petitioner falls within the provisions of [section 1170.95]” may be denied without an evidentiary hearing. (§ 1170.95, subds. (c) & (d).) In February 2019, Kersting filed a petition under section 1170.95, averring that in 1985 he was convicted at trial of second degree murder on a