People v. Nelson CA3

Filed 4/15/21 P. v. Nelson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C090764

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- 2010-0004450, SC040989A) v.

LASCHELL GENISE NELSON,

Defendant and Appellant.

In October 1988, defendant Laschell Genise Nelson pleaded no contest to murder, stipulating to the preliminary hearing transcript as the factual basis for her plea. In accordance with her plea, the trial court sentenced defendant to an indeterminate term of 15 years to life in state prison. In September 2019, defendant filed a petition for resentencing under newly enacted Penal Code section 1170.95.1 The trial court found defendant ineligible for relief in a written order, entered without eliciting any response from the People or holding a hearing.

1 Undesignated statutory references are to the Penal Code.

1

Defendant now contends the trial court erred when it engaged in fact-finding without appointing counsel or affording the parties an opportunity to file additional briefing. The People agree the matter should be remanded for further proceedings, and we do too. BACKGROUND In September 2019, defendant filed a petition to vacate her conviction pursuant to section 1170.95 and attached her own declaration. In her declaration, defendant checked the boxes to indicate (1) a complaint, information, or indictment was filed against her that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, and she pleaded no contest to first or second degree murder in lieu of going to trial because she believed she could have been convicted of either crime “pursuant to the felony murder rule or the natural and probable consequences doctrine.” Defendant also checked the box to indicate that she “could not now be convicted of murder because of changes to Penal Code § 188, effective January 1, 2019.” In addition, defendant asked that counsel be appointed for the resentencing process. The record on appeal does not show that the prosecution responded substantively to defendant’s petition. The trial court denied defendant’s petition. In a written decision, the trial court summarized the evidence adduced at the preliminary hearing, noting that there was evidence defendant agreed to have sex with the victim while her codefendant stole money from him. According to the evidence, the victim was killed by blunt force trauma to the head; some evidence indicated defendant struck the victim with a baseball bat, while other evidence indicated her codefendant struck the blow. The trial court quoted testimony from defendant and also from the codefendant, each confessing to killing the victim. Nevertheless, based on the preliminary hearing transcript, the trial court found that defendant was “an actual perpetrator and was a major participant in the crime and