People v. Cejas CA3

Filed 5/6/22 P. v. Cejas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C093031

v. (Super. Ct. No. 02F07057)

ANDREW ANTHONY CEJAS,

Defendant and Appellant.

Defendant Andrew Anthony Cejas appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1170.95.1 Defendant contends the trial court erred in summarily denying his petition after determining he failed to establish a prima facie case under the provisions of the statute. He contends the trial court should have issued an order to show cause and allowed his petition to proceed for full

1 Undesignated statutory references are to the Penal Code.

1

consideration on its merits, and the People agree. We will reverse the trial court’s order denying the petition for resentencing and remand the case for further proceedings. BACKGROUND A detailed recitation of the underlying facts is set forth in our prior consolidated opinion in this case. (People v. Potter (Dec. 10, 2007, C052634/C053349) [nonpub. opn.] (Potter).) Defendant lived with Kathryn Elizabeth Potter and defendant’s 12-year- old son. Defendant’s son was abused and starved, and he eventually died from injuries during a beating that took place one evening. Defendant’s defense was that Potter was the killer. Potter’s defense was that she had suffered from years of abuse from defendant and was unable to oppose his will or seek help for the victim. (Potter, supra, C053349.) In 2004, defendant and Potter were charged with murder. (§ 187) It was further alleged defendant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)), although this allegation was ultimately dropped by the prosecution. A murder by torture special circumstance (§ 190.2, subd. (a)(18))2 and two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12) were also alleged as to defendant. Defendant and Potter were tried together, but a mistrial was declared as to defendant after his counsel fell ill. Potter was convicted of second-degree murder and felony child abuse resulting in death, and she was sentenced to 15 years to life. On retrial a jury convicted defendant of first degree murder but did not find the torture special circumstance to be true. The trial court found defendant had two prior strike convictions and sentenced him to 75 years to life. On appeal, this court affirmed the judgment. (Potter, supra, C053349.) In 2019, defendant filed a petition for writ of habeas corpus claiming he was entitled to relief under section 1170.95, and that the trial court erroneously sentenced him under People v. Vargas (2014) 59 Cal.4th 635. Defendant declared he had been