People v. Tunstall CA1/3

Filed 1/12/22 P. v. Tunstall CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, v. A161231 ROBERT WILLIAM TUNSTALL, Defendant and Appellant. (Solano County Super. Ct. No. FC11624)

MEMORANDUM OPINION1 Robert William Tunstall appeals from the trial court’s denial of his petition for resentencing brought pursuant to section 1170.95. As relevant here, Tunstall argues — and the Attorney General concedes — the order must be reversed and the matter remanded for a new hearing under section

We resolve this case by memorandum opinion pursuant to California 1

Standards of Judicial Administration, section 8.1, reciting only those facts necessary to resolve the issue raised. Undesignated statutory references are to the Penal Code. We deny Tunstall’s request for judicial notice as unnecessary. By separate order filed this date, we dismiss as moot Tunstall’s petition for writ of habeas corpus (case No. A164036).

1

1170.95, subdivision (d)(3), as amended by Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775). We accept the Attorney General’s concession and reverse and remand. In July 1976, Tunstall — then 18 years old — aided and abetted a robbery that left one woman dead and another severely wounded. The prosecution charged Tunstall and a codefendant, David Joel Day, with first degree murder, attempted murder, and two counts of robbery. The prosecution alleged firearm enhancements. After the preliminary hearing, Day pled guilty to murder and one count of robbery; the trial court subsequently struck the firearm allegations. The case proceeded against Tunstall. At trial, numerous witnesses, including Tunstall, testified; a jury convicted Tunstall of first degree murder and two counts of robbery. In late 1976, the trial court sentenced Tunstall to life in prison with the possibility of parole. A division of this court affirmed. (People v. Tunstall (Sept. 21, 1977, 16456) [nonpub. opn.] (Tunstall I).) In late 2018 — after serving more than 40 years in state prison — Tunstall petitioned to vacate the murder conviction and for resentencing under section 1170.95. The trial court appointed counsel and subsequently issued an order to show cause. The hearing on the petition took place in September 2020, having been delayed while the parties litigated the constitutionality of the statute, and due to various issues arising out of the COVID-19 pandemic. At the hearing, the parties stipulated the court could consider the “available” portions of the record of conviction, consisting of: (1) an excerpt of the trial transcript (closing arguments and jury instructions, a colloquy regarding the jury’s questions on the charges, and the reading of the verdict); (2) portions of the clerk’s transcript on Tunstall’s direct appeal;