People v. Mendivil CA3

Filed 1/18/22 P. v. Mendivil CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C091561

Plaintiff and Respondent, (Super. Ct. No. 11F00055)

v. OPINION ON REMAND

JEREMY ANTHONY MENDIVIL,

Defendant and Appellant.

In 2014, the prosecution charged defendant and his codefendant with murder (Pen. Code, § 187, subd. (a))1, and alleged defendant was armed with a firearm (§ 12022, subd. (a)(1)). The information alleged the codefendant personally discharged the firearm and caused the victim’s death. (§ 12022.53, subd. (d).)

1 Undesignated statutory references are to the Penal Code.

1

Defendant pleaded no contest to voluntary manslaughter (§ 192, subd. (a)) and admitted he was a principal in an offense in which another principal was armed, in exchange for a stipulated sentence of 12 years. Consistent with the agreement, the trial court sentenced defendant to a term of 12 years in state prison. In 2019, defendant filed a petition for resentencing under section 1170.95. The trial court appointed counsel for defendant and received briefing from both parties. The trial court denied the petition in a written order, explaining that because defendant had been convicted of voluntary manslaughter, he “fails to make the threshold prima facie showing he is eligible for resentencing under section 1170.[9]5.” In September 2021, this court issued an unpublished opinion affirming the trial court’s order denying the petition for resentencing, and concluding, consistent with then- prevailing case law, that defendants convicted of voluntary manslaughter were not eligible for resentencing under section 1170.95. (People v. Mendivil (Sept. 30, 2021, C091561) [nonpub. opn.].) Shortly thereafter, the Governor signed Senate Bill No. 775 (2021-2022 Reg. Sess.), which amended section 1170.95 to, among other things, clarify that “persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural and probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.” (Stats. 2021, ch. 551, § 1, subd. (a).) In December 2021, our Supreme Court granted review in this case and transferred the case back to us with directions to vacate our decision and reconsider the issue in light of Senate Bill No. 775. (People v. Mendivil (Dec. 15, 2021, S271621).) The parties submitted supplemental briefing, in which they agree that the trial court’s rationale for denying the petition is no longer valid and the case must be remanded. We agree with the parties and will remand the case for further proceedings.