People v. Ellis CA3

Filed 3/8/22 P. v. Ellis CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C094278

Plaintiff and Respondent, (Super. Ct. No. 13F02059)

v.

KENNY LEE ELLIS,

Defendant and Appellant.

In 2014, defendant Kenny Lee Ellis was sentenced to 15 years in prison for attempted murder. When he recently sought resentencing under Penal Code1 section 1170.95, the trial court summarily denied his petition on the basis that the provision does not apply to the crime of attempted murder. Although that was true when the trial court made its ruling in 2021, as of January 1, 2022, section 1170.95 now applies to defendants who were convicted of attempted murder under the natural and probable consequences doctrine. (Senate Bill No. 775 (2020-2021 Reg. Sess.) (Stats. 2021, ch. 551, § 2).) In light of these changes, we will reverse the trial court’s order and remand for further proceedings.

1 Undesignated section references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND I Defendant’s Case Defendant and codefendant Heriberto Elias Mendoza were charged with attempted murder and assault with a deadly weapon (a knife). It was further alleged with respect to both charges that the two defendants personally inflicted great bodily injury upon the victim and personally used a deadly and dangerous weapon (a knife). It was also alleged defendant had a prior serious felony and strike. In September 2014, defendant pled no contest to attempted murder without premeditation and admitted he had a prior serious felony and a prior strike. Per the parties’ agreement, the trial court, in October 2014, sentenced defendant to prison for an aggregate term of 15 years, as follows: five years for the attempted murder doubled to ten years due to the prior strike plus five years for the prior serious felony. The trial court also imposed various fines and fees. Defendant did not appeal his conviction. II Defendant’s Petition In March 2021, defendant filed a petition for resentencing under section 1170.95. In his petition, defendant argued that an information had been filed against him that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine, that he pled no contest to first or second degree murder in lieu of going to trial because he believed he could have been convicted of first or second degree murder at trial pursuant to the felony-murder rule or the natural and probable consequences doctrine, that he could not now be convicted of first or second degree murder based on the recent changes to sections 188 and 189, that he was not the actual killer, that he was not a major participant in the felony or he did not act with reckless indifference to human life during the course of the crime or felony, and that the victim was not a peace officer. He also requested the court appoint counsel.