People v. Wallace CA2/8

Filed 6/8/21 P. v. Wallace CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B307965

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA049674) v.

KEVIN DEMPSEY WALLACE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Daviann L. Mitchell, Judge. Affirmed. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Kevin Dempsey Wallace appeals from the denial of his petition for resentencing pursuant to Penal Code section 1170.95. We affirm. Defendant was convicted by jury of attempted murder (Pen. Code, § 187, subd. (a), § 664). The jury also found true the allegations a principal used a firearm in the commission of the offense and that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 12022.53, § 186.22). The charges arose from an altercation and shooting at a gas station convenience store involving multiple individuals, including defendant and two codefendants who were fellow gang members. The court sentenced defendant to 29 years in prison. In an unpublished opinion, we affirmed defendant’s conviction. (People v. Wallace (Mar. 6, 2012, B233065) [nonpub. opn.].) In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was passed. Penal Code section 1170.95 was enacted as part of the legislative changes effected by Senate Bill 1437 and became effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.) In August 2020, defendant filed in propria persona a petition for resentencing pursuant to Penal Code section 1170.95. On August 20, 2020, the trial court summarily denied defendant’s petition without appointing counsel. The trial court concluded defendant had not stated a prima facie case for relief under the statute because he was convicted of attempted murder, not murder. Defendant appealed. He contends the trial court’s summary denial of his resentencing petition was in error and violated his rights to due process and the assistance of counsel.