People v. Mark CA1/3

Filed 2/16/22 P. v. Mark CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, A162912

v. (Contra Costa County Super. Ct. No. 50405381) MELVIN LAMAR MARK,

Defendant and Appellant.

Defendant Melvin Lamar Mark appeals an order summarily denying his petition for resentencing under the then applicable statute, Penal Code1 former section 1170.95 (Stats. 2018, ch. 1015). The trial court denied the petition, finding that Mark was ineligible for relief as he had been convicted of attempted murder, not murder. Because section 1170.95 has been amended, effective January 1, 2022 (Stats. 2021, ch. 551, § 2; Cal. Const., art. IV, § 8, subd. (c)(1)), to explicitly allow persons to petition for resentencing of attempted murder convictions, we reverse and remand.

1 All undesignated statutory references are to the Penal Code. 1

BACKGROUND In April 2004, the Contra Costa County District Attorney filed an information alleging Mark committed a number of crimes, including attempted murder. In June 2005, Mark pleaded no contest to attempted murder (§§ 187, 664), admitted three prison priors (§ 667.5, subd. (b)), and admitted a prior strike and serious felony (§§ 667, subds. (a)(1), (b)-(i)). All remaining counts and allegations were dismissed. In July 2005, the trial court sentenced Mark to an aggregate prison term of 22 years. In January 2020, Mark, representing himself, filed a form petition for resentencing under former section 1170.95. He refiled his form petition in October 2020 and the court appointed counsel. In April 2021, the trial court summarily denied the petition on the basis that Mark was ineligible for relief because he had been convicted of attempted murder, not murder. A timely appeal ensued. DISCUSSION In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.), adding sections 188 and 189, for the purpose of amending “the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) As part of Senate Bill No. 1437, the Legislature also added former section 1170.95 “to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences