People v. Evans CA2/4

Filed 10/28/21 P. v. Evans CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B309393

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A776569) v.

KENNETH EVANS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Renee Korn, Judge. Affirmed. Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Respondent.

BACKGROUND In 1987, a jury found appellant Kenneth Evans guilty of murder and two counts of attempted murder. The jury found true allegations that appellant personally used a firearm in the commission of all three offenses. According to the evidence at trial, appellant shot multiple members of a rival gang, killing one and injuring two others.1 Following his conviction, appellant was sentenced to 27 years to life in prison. In 2019, appellant filed a petition for relief under Penal Code section 1170.95, asking the court to vacate his murder conviction under Senate Bill No. 1437 (2017-2018 Reg. Sess.), which eliminated the natural and probable consequences theory as a basis for murder liability and narrowed the felony murder rule. (People v. Johns (2020) 50 Cal.App.5th 46, 57-58.) The superior court appointed counsel for appellant. The prosecution filed an opposition, arguing that appellant was ineligible for relief because the record of conviction established that appellant was the actual killer, and thus that he was not convicted based on the natural and probable consequences theory or the felony murder rule. Appellant’s counsel filed no reply. In November 2020, the superior court denied appellant’s petition, concluding he had failed to make a prima facie showing of eligibility for relief because he was