People v. Soto CA5

Filed 2/24/22 P. v. Soto 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F078925 Plaintiff and Respondent, (Super. Ct. No. VCF240382B) v.

CHRISTIAN ABRAHAM SOTO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Gary L. Paden, Judge.

Jean M. Marinovich, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Michael P. Farrell, Assistant Attorney General, Christina H. Simpson, Julie A. Hokans and Clara M. Levers, Deputy Attorneys General, for Plaintiff and Appellant. -ooOoo-

*Before Levy, Acting P.J., Peña, J. and DeSantos, J.

INTRODUCTION Nine years ago, defendant Christian Abraham Soto pled guilty to attempted murder under an aiding and abetting theory in lieu of trial. After the passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), defendant petitioned for relief in the trial court under Penal Code section 1170.95, but the court denied his petition for failure to state a prima facie case since defendant entered a plea to attempted murder as opposed to murder. (Undesignated statutory references are to the Penal Code.) On appeal, defendant contended the trial court erred in denying his petition because due process and equal protection required extension of the petitioning procedure provided for in section 1170.95 to defendants, like him, who were convicted of attempted murder under the natural and probable consequences doctrine. In our initial opinion we affirmed the court’s order denying defendant’s petition on the grounds defendant was ineligible for relief under the plain language of section 1170.95, which limited relief to defendants convicted of murder under a now prohibited theory. Defendant petitioned for review. The California Supreme Court granted the petition and transferred the case back to this court to reconsider it in light of newly enacted Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775), which became effective January 1, 2022 and amended the language of section 1170.95. We requested and received supplemental briefing on the impact of Senate Bill 775 on this case. Having now reconsidered the case, including the agreement of the parties that the court’s order on defendant’s petition should now be reversed and remanded, we will reverse the order denying the petition for resentencing and remand the matter to the superior court with directions to appoint defendant counsel and to hold further proceedings consistent with section 1170.95. FACTUAL BACKGROUND In January 2011, defendant pled no contest to nonpremeditated attempted murder (§§ 187, 664) and disturbing the peace (§ 415, subd. (1)), with a firearm enhancement