People v. Taituave CA2/2

Filed 3/7/22 P. v. Taituave CA2/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B305271

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. NA081157)

MIKE TAITUAVE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Judith L. Meyer, Judge. Reversed and remanded with directions. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Noah P. Hill, Idan Ivri and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

We remand this case with directions to the superior court to determine whether appellant Mike Taituave, convicted in 2010 among other offenses of five counts of attempted murder, should be resentenced under the provisions of Senate Bill No. 775 (Stats. 2021, ch. 551 (SB 775)). SB 775, effective January 1, 2022, extends the provisions of Penal Code section 1170.95 (section 1170.95) to persons convicted of attempted murder under the natural and probable consequences doctrine. Prior to January 1, 2022, section 1170.95 was limited to persons convicted of first or second degree murder. PROCEDURAL HISTORY Appellant was convicted by a jury of conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1)), five counts of attempted murder (§§ 664, 187 subd. (a)), and five counts of assault with a firearm (§ 245, subd. (a)(2)). The jury found true gang allegations on all counts (§ 186.22, subd. (b)(1)(C)). The jury found all five attempted murders to be willful, deliberate, and premeditated. Appellant was sentenced to a term of 90 years to life in state prison. The sentence was composed of six consecutive 15-years-to-life terms on the conspiracy and the five attempted murder counts. The sentences on the assault counts were stayed pursuant to Penal Code section 654. Taituave appealed. The judgment was affirmed in People v. Taituave et al. (May 15, 2012, B225435) [nonpub. opn.] [2012 Cal.App. Unpub. LEXIS 3619] (People v. Taituave I), with the exception that the sentence on the conspiracy to commit murder count was stayed under Penal Code section 654, reducing his sentence to 75-years-to-life imprisonment. Appellant also received an additional 71 days of custody credit. The court corrected the stayed sentence on the murder conspiracy count to a term of 25 years to life. (People v. Taituave I, supra.) Appellant filed a petition for resentencing under section 1170.95 on January 29, 2020. The superior court denied the petition summarily on February 5, 2020, without appointing counsel. The court gave as the reason for its denial that the “petitioner was NOT convicted of murder.