People v. Semore CA1/1

Filed 6/3/21 P. v. Semore CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A160169 v. JONAS R. SEMORE, (Humboldt County Super. Ct. No. CR1502233B) Defendant and Appellant.

Appellant Jonas R. Semore appeals an order denying his petition for resentencing pursuant to Penal Code1 section 1170.95. Appellant contends, and the Attorney General concedes, that the trial court erred when it found Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) unconstitutional and declined to hold an evidentiary hearing after it found that petitioner had established a prima facie basis for relief. We agree and reverse. I. FACTUAL AND PROCEDURAL BACKGROUND In September 2015, the district attorney filed an information charging appellant with the murder of David Ganfield.2 (§ 187, subd. (a)). It was

1 Undesignated statutory references are to the Penal Code. The factual background underlying appellant’s case is not relevant to 2

the issues on appeal.

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alleged that appellant and Nickolas Johnson struck Ganfield on the head multiple times with a baseball bat causing his death. The information further alleged that appellant had personally used a deadly and dangerous weapon in committing the murder. (§ 12022, subd. (b)(1)). Appellant was prosecuted for murder under two theories: malice aforethought and felony murder. The jury was also instructed on the principles of aiding and abetting, and uncharged conspiracy. On May 27, 2016, the jury convicted appellant of one count of second degree murder and found not true the personal use allegation. Appellant was sentenced to a term of 15 years to life in state prison. We later affirmed appellant’s conviction. (People v. Semore (May 27, 2018, A149481) [nonpub. opn.].) In 2018, the Legislature enacted Senate Bill 1437, which took effect on January 1, 2019. (Stats. 2018, ch. 1015.) Among other changes, Senate Bill 1437 amended section 189 to limit liability for murder under a felony murder or natural and probable consequences theory to a person who is the actual killer, who “with the intent to kill” aids and abets the actual killer, or who is a major participant in the underlying felony and acted with reckless indifference to human life. (Stats. 2018, ch. 1015, §§ 1(f), 3(e); see § 189, subd. (e).) Senate Bill 1437 permits an individual convicted of murder under these theories to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts under certain enumerated procedures. (Stats. 2018, ch. 1015, § 4; see § 1170.95.) In March 2019 appellant, representing himself, filed a petition to vacate his conviction and sentence under Senate Bill 1437. The trial court appointed counsel to represent appellant. Appellant’s counsel filed a brief in support of the petition. The trial court thereafter found appellant had made