People v. Harper CA3

Filed 4/29/22 P. v. Harper CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE,

Plaintiff and Respondent, C091258

v. (Super. Ct. No. STK-CR-FE- 1995-0006533) LARRY TYRONE HARPER,

Defendant and Appellant.

In 1997, defendant Larry Tyrone Harper pleaded guilty to second degree murder. In 2019, defendant filed a petition for resentencing under Penal Code section 1170.95.1 The trial court denied defendant’s petition after holding an evidentiary hearing relying on the transcript from defendant’s preliminary hearing. During the pendency of this appeal, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2) (Senate Bill 775) was enacted, which modified section 1170.95. The parties now agree the matter must be remanded for a new hearing consistent with the revised section 1170.95.

1 Undesignated statutory references are to the Penal Code.

1

In light of Senate Bill 775, we will reverse and remand for further proceedings. BACKGROUND At defendant’s preliminary hearing on May 1, 1995, three police officers testified (based on conversations with defendant, codefendants, and witnesses) that defendant devised a plan with four others to rob an illegal gambling establishment in Stockton on the night of January 11, 1995. All five individuals carried firearms. The plan shifted to robbing one individual, Prince Austin. Once Austin left the establishment, codefendant Constanty Boyse pulled a shotgun on Austin, who ran. Boyse shot at Austin, striking him in the chest. Defendant saw Austin fall then ran away with Boyse. Austin later died from his wounds. On January 23, 1997, defendant pleaded guilty to second degree murder and admitted he was armed with a firearm during the commission of the crime. The minutes from the hearing state that the factual basis of the plea was based on a stipulation by counsel; the plea agreement and change of plea hearing transcript were both sealed. Defendant was sentenced to 15 years to life for the murder and one additional year for the firearm enhancement. On January 10, 2019, defendant filed a petition for resentencing under section 1170.95. Defendant checked the boxes on a form petition indicating he pleaded guilty to second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine; he could not now be convicted of second degree murder because of changes made to sections 188 and 189, effective January 1, 2019; and he was not the actual killer, did not have the intent to kill, nor was he a major participant who acted with reckless indifference to human life. On April 4, 2019, by written order, the trial court found defendant made a prima facie case for relief, appointed defendant counsel, and set an order to show cause hearing. On January 7, 2020, after further briefing by the parties, the trial court held an order to show cause hearing. At the request of the parties, the trial court took judicial notice of