People v. Felix CA3

Filed 3/25/22 P. v. Felix CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092309

Plaintiff and Respondent, (Super. Ct. No. 13F07431)

v.

JOVAN FELIX,

Defendant and Appellant.

Defendant Jovan Felix appeals the trial court’s denial of his petition for resentencing under Penal Code section 1170.95 (statutory section citations that follow are to the Penal Code), enacted as part of Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437). He argues his conviction for attempted murder as an aider and abettor on a natural and probable consequences theory is eligible for relief under section 1170.95; and, if the conviction is not eligible for relief, then section 1170.95 violates equal protection principles.

1

Following the close of briefing, but before an opinion was issued in this case, the Governor approved Senate Bill No. 775 (Stats. 2021, ch. 551, § 2 (Senate Bill 775)). This legislation, which took effect on January 1, 2022, amends section 1170.95 to permit certain persons convicted of attempted murder to seek relief. (Cal. Const., art. IV, § 8; Sen. Bill 775, Stats. 2021, ch. 551, § 2.) Accordingly, we requested the parties file supplemental briefs addressing the applicability of Senate Bill 775 to this case. We concur with the parties that this matter should be remanded to allow the trial court to conduct further proceedings under the newly amended section 1170.95 after January 1, 2022. Accordingly, we will remand the matter to the trial court for further proceedings.

FACTS AND HISTORY OF THE PROCEEDINGS As set forth in our partially published opinion upholding defendant’s underlying conviction, defendant was convicted by jury of attempted murder (§§ 664, 187), assault with a deadly weapon (§ 245, subd. (a)(1)), and assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)). (People v. Felix (2019) 41 Cal.App.5th 177, 181 (Felix).) The trial court found true the enhancement allegations that defendant had been released from custody when he committed the assault with force count (§ 12022.1), had suffered a prior strike (§§ 667.5, subds. (b)-(i), 1170.12), and had suffered a prior serious felony conviction (§ 667, subd. (a)). (Felix, at pp. 181-182.) The trial court sentenced defendant to an aggregate prison term of 28 years and four months, comprised of: nine years for the attempted murder, doubled to 18 years because of the prior strike; one-third consecutive, doubled to two years for the assault with force count; five years for the prior serious felony enhancement; two years for the released from custody enhancement; and an additional one year, four months for being a felon in possession of a firearm from another case. The court stayed its sentence for the assault with a deadly weapon count pursuant to section 654. (Felix, supra, 41 Cal.App.5th at p. 182.)