People v. Austin CA2/6

Filed 2/8/22 P. v. Austin CA2/6 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE OF THE STATE 2d Crim. No. B301152 OF CALIFORNIA, (Super. Ct. No. 1027776) (Santa Barbara County) Plaintiff and Respondent, OPINION ON REMAND v.

LENARD AUSTIN, JR.,

Defendant and Appellant.

Lenard Austin, Jr., who was convicted of attempted murder in 2001, appeals the summary denial of his petition for resentencing under Penal Code1 section 1170.95. In a November 2020 unpublished decision, we affirmed on the ground that relief under section 1170.95 was not available to those convicted of attempted murder rather than murder. (People v. Austin (Nov. 25, 2020, B301152) [nonpub. opn.].) Austin petitioned for review in the California Supreme Court. The court granted review and

1 All statutory references are to the Penal Code.

held the case along with numerous similar cases. While the matter was pending, the Governor signed into law Senate Bill No. 775 (Senate Bill 775), which amended section 1170.95 to expand eligibility for resentencing to persons convicted of attempted murder. (Stats. 2021, ch. 551.) On December 22, 2021, the California Supreme Court transferred the case back to this court with directions to vacate our prior decision and reconsider the matter in light of Senate Bill 775. (People v. Austin (Dec. 22, 2021, S266398).) The parties submitted supplemental briefing in which they agree that the matter must be remanded. We agree with the parties and accordingly reverse and remand for further proceedings. FACTS AND PROCEDURAL HISTORY The relevant facts are recited from our 2003 unpublished opinion affirming the convictions of Austin and his codefendant Steven Lee. (People v. Lee (June 30, 2003, B154641) [nonpub. opn.].) Lee and Austin entered Anthony’s Jewelers in Santa Maria wearing wigs, hats, fake beards, heavy jackets, and black boots. When the owner’s son, Jeffrey Shreves, asked if he could help them, they said they were just browsing. After looking into all the display cases, they left. Shortly thereafter, appellants returned, feigning interest in a bracelet. The third time appellants entered, they asked to speak to the store’s owner, Anthony Chaparro. Chaparro became frightened and asked his son to write down a license plate number if anything should happen. Chaparro asked two other employees to stay near panic buttons. Chaparro asked appellants if he could help them. Appellants did not respond, so Chaparro asked appellants, “What the fuck do you want?” Austin