People v. Epperson CA5

Filed 2/2/22 P. v. Epperson CA5 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081044 Plaintiff and Respondent, (Super. Ct. No. 14CM1949HTA) v.

TAVARIE EPPERSON, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. Stephen M. Hinkle, 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, Michael P. Farrell, Assistant Attorney General, Christina Hitomi Simpson and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Franson, Acting P. J., Meehan, J. and Snauffer, J.

This matter is before us for the fourth time on direct review of defendant Tavarie Epperson’s nonfinal judgment.1 As discussed herein, the California Supreme Court granted review in Epperson III and, on December 23, 2021, transferred the matter to us with directions to vacate our opinion and reconsider the cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551, §§ 1–2, pp. 2–4 (Senate Bill No. 775)), which amended Penal Code section 1170.95, effective January 1, 2022.2 We again reverse defendant’s conviction for attempted murder, which was based on a natural and probable consequences theory, and remand the matter for further proceedings. PROCEDURAL HISTORY In 2014, defendant and two other men participated in the armed robbery of two victims, D.R. and R.T. D.R. was shot and wounded by one of the men.3 Defendant was armed with a shotgun during the crimes but was not the individual who shot D.R. Defendant’s first trial ended in a mistrial after the jury deadlocked. His second trial resulted in his convictions for the attempted murder of D.R. based on a natural and probable consequences theory (§§ 664/187; count 1), the robberies of R.T. and D.R. (§ 211; counts 2 & 3, respectively), and burglary (§ 459; count 4). The jury found true that the attempted murder was willful, deliberate, and premeditated and found true the firearm enhancements attached to counts 2 and 4 (§ 12022.5, subd. (a), 12022.53, subd. (b)). In 2015, defendant was sentenced as follows: seven years to life on count 1; nine years, plus an additional 10 years for the firearm enhancement under