People v. Barnett CA2/4

Filed 12/8/21 P. v. Barnett CA2/4 Opinion following rehearing NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, B309144

Plaintiff and Respondent, Los Angeles County Super. Ct. No. KA086630 v.

DUANE BARNETT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Steven D. Blades, Judge. Reversed and remanded with instructions. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and David A. Voet, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In 2010, a jury convicted defendant and appellant Duane Barnett of attempted murder and found firearm and gang allegations true. The trial court sentenced him to 40 years to life in state prison. In 2020, Barnett filed a petition for resentencing under Penal Code section 1170.95.1 The trial court summarily denied the petition, concluding Barnett was ineligible for relief as a matter of law because he was convicted of attempted murder, not murder. On appeal, Barnett argued the trial court prejudicially erred in concluding section 1170.95 does not apply to individuals convicted of attempted murder. He also argued the court prejudicially erred by denying his petition without first appointing counsel. On October 6, 2021, we filed an opinion rejecting these contentions. We concluded section 1170.95 did not afford relief to individuals convicted of attempted murder, and consequently, the failure to appoint counsel was harmless error. Barnett filed a petition for rehearing noting that on October 5, 2021, the Governor signed Senate Bill No. 775 (SB 775) into law. (Stats. 2021, ch. 551.) Effective January 1, 2022, SB 775 will amend section 1170.95 to, among other things, provide relief for individuals convicted of attempted murder under the natural and probable consequences doctrine. (Stats. 2021, ch. 551, § 2.) We directed the Attorney General to file an answer to Barnett’s petition for rehearing. After considering the petition for rehearing and answer, we filed an order granting Barnett’s petition for rehearing. Having reconsidered the matter,