People v. Harbin CA1/1

Filed 4/27/21 P. v. Harbin CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A161289 v. JERRY L. HARBIN, JR., (Alameda County Super. Ct. No. 604145B) Defendant and Appellant.

Jerry Harbin was convicted of voluntary manslaughter following a plea. The Legislature subsequently enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437), which altered liability for murder under the theories of felony murder and natural and probable consequences. The bill also established a procedure, under newly enacted Penal Code1 section 1170.95, for eligible defendants to petition for recall and resentencing. Harbin filed a petition for relief, and the trial court denied it on the basis that section 1170.95 does not apply to defendants convicted of voluntary manslaughter. Harbin appealed from the order denying his section 1170.95 petition, and his appellate counsel filed a brief asking this court to conduct an independent review of the record for arguable issues. Harbin was informed

1 All further statutory references are to the Penal Code.

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he could file a supplemental brief but did not do so. We agree with the trial court that section 1170.95 does not afford relief to defendants convicted of voluntary manslaughter, and we therefore affirm. I. BACKGROUND In 2015, Chyemil Pierce was killed in the crossfire between two groups of men, including Harbin.2 Harbin did not fire the shot that killed her. He and several other participants were charged with murder, and a jury trial occurred in 2017.3 The jury convicted Harbin of possession of a firearm by a felon but deadlocked on the murder charge, and he pleaded no contest to voluntary manslaughter and other crimes.4 He was sentenced to 13 years in prison. In February 2019, shortly after Senate Bill No. 1437 took effect, Harbin filed a petition averring he was entitled to relief under section 1170.95 and requesting counsel. The trial court appointed counsel and ordered the prosecution to file a response to the petition. In its response, the prosecution argued that Harbin was ineligible for relief because he “was convicted of manslaughter, not murder.”