People v. Gavaldon CA4/3

Filed 2/10/22 P. v. Gavaldon CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G060542

v. (Super. Ct. No. 01CF1110)

ANTHONY JAY GAVALDON, OPINIO N

Defendant and Appellant.

Appeal from an order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded with directions. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, and Alan L. Amann, Deputy Attorney General, for Plaintiff and Respondent.

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In 2004, a jury convicted defendant Anthony Jay Gavaldon of attempted murder. In 2021, Gavaldon filed a Penal Code section 1170.95 petition stating he was convicted of murder. 1 The trial court denied Gavaldon’s petition. Gavaldon’s appellate counsel filed a Wende brief. (See People v. Wende (1979) 25 Cal.3d 436.) The Legislature has recently amended section 1170.95 to include attempted murder convictions. Thus, we are reversing the trial court’s order denying Gavaldon’s section 1170.95 petition and remanding with directions.

I PROCEDURAL BACKGROUND AND DISCUSSION In 2004, a jury convicted Gavaldon of attempted premeditated murder, street terrorism, and found true related sentencing enhancements. This court affirmed the judgment on direct appeal, with directions to correct the abstract of judgment. (People v. Gavaldon (Sept. 28, 2005, G034343) [nonpub. opn.].) In 2018, the Legislature limited the scope of the felony-murder rule and eliminated accomplice liability under the natural and probable consequences doctrine. The Legislature also permitted eligible defendants convicted of murder under a now invalid theory to petition to vacate their prior convictions and be resentenced. (§ 1170.95, added by Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.) Generally, if a section 1170.95 petition contains the required information, the court must appoint counsel, receive briefing, review the record of conviction, and then determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (See People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).) If the court determines the petitioner has made a prima facie showing, the court must ordinarily issue an order to show cause and then conduct an evidentiary hearing. (§ 1170.95, subd. (c).)