People v. Fortman CA2/2

Filed 1/27/22 P. v. Fortman CA2/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B304567

Plaintiff and Respondent, (Los Angeles County Super. Ct. Nos. 319016, v. 319060)

PHILLIP CHARLES FORTMAN, OPINION ON REMAND

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, James D. Otto, Judge. Reversed and remanded.

Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

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Phillip Charles Fortman (defendant), who was convicted of first degree murder, appeals from the denial of his petition for resentencing under Penal Code section 1170.95.1 In our original opinion we reversed the trial court’s order denying his petition and remanded the matter for a new evidentiary hearing at which the People were required to prove to the trial court beyond a reasonable doubt that defendant was the actual killer, aided and abetted the actual killer with the intent to kill, or was a major participant who acted in reckless disregard for human life. (People v. Fortman (May 13, 2021, B304567), previously published at People v. Fortman (2021) 64 Cal.App.5th 217 (Fortman II).) The California Supreme Court granted review on July 21, 2021, and, in an order filed December 22, 2021, transferred the case back to this court with directions to vacate our prior decision and reconsider in light of Senate Bill No. 775 (Senate Bill 775) (2020-2021 Reg. Sess.; Stats. 2021, ch. 551). It is therefore ordered that the previous opinion and decision (Fortman II) filed in this case is vacated. Upon reconsideration in light of Senate Bill 775, we again conclude