California Court of Appeal Mar 24, 2022 No. E073972AUnpublished
Filed 3/24/22 P. v. Sly CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073972
v. (Super.Ct.No. FSB1203896)
CHRISTOPHER JOSEPH SLY, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Katrina West,
Judge. Reversed.
Randall Conner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorney Generals, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland, Lynne G. McGinnis, Marvin E. Mizell and Eric A. Swenson, Deputy Attorneys
General, for Plaintiff and Respondent.
1
In 2016, defendant Christopher Sly pleaded guilty to one count of attempted
murder. On February 29, 2019, defendant filed a petition for resentencing pursuant to
former Penal Code section 1170.951 in the trial court based on the changes made to the
murder statutes (petition) pursuant to Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 1,
modified first degree felony murder, and provides that when “[a] participant in the
perpetration or attempted perpetration of a felony listed in subdivision (a) in which a
death occurs is liable for murder only if one of the following is proven: (1) The person
was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to
kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] (3) The person was a
major participant in the underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.” SB 1437 also amended section
188 to require that a principal “shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a crime.” (§ 188, subd.
(a)(3).)
In addition, SB 1437 added section 1170.95, which created a procedure by which a
defendant who was “convicted of felony murder or murder under the natural and
probable consequences theory” may “file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and to be resentenced on
any remaining counts.” (Former § 1170.95, subd. (a).) Attempted murder was not
expressly included as a crime that was eligible for resentencing under former section
1170.95. We relied on former section 1170.95 to conclude in our Opinion that section
1170.95 did not apply to defendant’s plea of attempted murder.
After the California Supreme Court granted defendant’s petition for review, the
Governor signed SB 775 into law, which became effective January 1, 2022. SB 775
amended section 1170.95, subdivision (a), to include persons convicted of “attempted
5
murder under the natural and probable consequences doctrine” as eligible for
resentencing. Section 1170.95, subdivision (a), now provides, in pertinent part, that a
defendant convicted of attempted murder may file a petition for resentencing when he
was convicted of attempted murder after he or she accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted murder, and he
could not presently be convicted of attempted murder because of changes to sections 188
or 189 made by SB 1437.
Because defendant’s appeal from the denial of his resentencing petition was not
final by January 1, 2022, he is eligible to benefit from this remedial legislation. (See
People v. Vieira (2005) 35 Cal.4th 264, 305-306; People v. Garcia (2018) 28
Cal.App.5th 961, 973.) The amendments to section 1170.95 under SB 775 compel the
conclusion that defendant’s petition is entitled to further consideration under section
1170.95. Accordingly, we reverse the trial court’s order denying the petition and remand
the matter to the trial court.
On remand, the trial court must determine whether defendant has stated a prima
facie case for relief under section 1170.95 as to his attempted murder conviction. If the
court finds a prima facie case is stated, it shall issue an order to show cause and hold a
hearing “to determine whether to vacate the . . . attempted murder . . . conviction and to
recall the sentence and resentence [defendant] on any remaining counts in the same
manner as if [he] had not previously been sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.” (§ 1170.95 subd. (d)(1).)
6
DISPOSITION
We reverse the trial court’s order denying defendant’s petition and remand the
case for further hearing on the petition under SB 775.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
FIELDS J.
7
AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant is entitled to seek resentencing for his attempted murder conviction under Penal Code section 1170.95, as amended by Senate Bill No. 775, which expanded eligibility to include attempted murder.
Issues
Whether a defendant convicted of attempted murder is eligible for resentencing under Penal Code section 1170.95 following the enactment of Senate Bill No. 775.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“The amendments to section 1170.95 under SB 775 compel the conclusion that defendant’s petition is entitled to further consideration under section 1170.95.”