People v. Burns CA2/2

Filed 2/22/22 P. v. Burns CA2/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B308077

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA348603) v. OPINION ON REMAND DONVAY LAMARR BURNS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Frederick N. Wapner, Judge. Reversed and remanded with directions.

Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pitney, Assistant Attorney General, Jonathan J. Kline and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent. _________________________

The trial court denied the Penal Code section 1170.95 1 petition filed by Donvay LaMarr Burns (appellant) to vacate the voluntary manslaughter conviction entered against him pursuant to a plea agreement. On appeal, he claimed that the trial court erred when it followed People v. Cervantes (2020) 44 Cal.App.5th 884, 886 (Cervantes) and ruled that he was ineligible for relief because the statute applies to murder convictions but not voluntary manslaughter convictions based on no contest pleas. Alternatively, he contended that section 1170.95 violates equal protection (U.S. Const., 14th Amend., Cal. Const., art. I, § 7) and substantive due process. We affirmed in our prior opinion issued on October 12, 2021, because the operative version of section 1170.95, by its express terms, did not apply to manslaughter convictions. On December 22, 2021, our Supreme Court granted appellant’s petition for review and transferred the matter back to us with directions to vacate our decision and reconsider the cause based on changes to the law after section 1170.95 was amended effective January 1, 2022, by Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551). That amendment makes section 1170.95 applicable to manslaughter convictions that were entered pursuant to plea agreements. We reverse and remand to the trial court with directions to conduct a new prima facie review hearing under section 1170.95, subdivision (c).