People v. Duarte CA2/7

Filed 1/19/22 P. v. Duarte CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B311993

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA067568) v.

MARIA DUARTE,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Mike Camacho, Judge. Reversed and remanded with directions. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Michael R. Johnsen, Supervising

Deputy Attorney General, Charles S. Lee, Daniel C. Chang and David W. Williams, Deputy Attorneys General, for Plaintiff and Respondent. _______________________ Maria Duarte pleaded guilty in 2005 to two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664)1 and admitted criminal street gang (§ 186.22, subd. (b)(1)) and firearm enhancement allegations (§ 12022.53, subds. (b) & (e)). On March 1, 2021 the superior court summarily denied Duarte’s petition for resentencing under section 1170.95, ruling Duarte was ineligible for relief because she had been convicted of attempted murder, not murder. While Duarte’s appeal was pending, the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775), effective January 1, 2022, which amended section 1170.95 to expressly include within its reach certain convictions for attempted murder and voluntary manslaughter. In light of this new legislation, we remand Duarte’s case for the superior court to permit Duarte to amend her petition and, following amendment, to appoint counsel for Duarte and to determine in accordance with the procedures described in section 1170.95, subdivision (c), and People v. Lewis (2021) 11 Cal.5th 952 (Lewis) whether Duarte has made a prima facie showing she is entitled to relief. FACTUAL AND PROCEDURAL BACKGROUND 1. Duarte’s Convictions for Attempted Murder According to testimony at Duarte’s preliminary hearing and admissions by Duarte at her plea hearing, Duarte drove a