People v. Zepeda CA4/3

Filed 5/19/22 P. v. Zepeda CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE,

Plaintiff and Respondent, G059826

v. (Super. Ct. No. 12CF1289)

JOSE FELIX ZEPEDA, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Steven D. Bromberg, Judge. Reversed and remanded. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Lynne G. McGinnis and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

Jose Felix Zepeda appeals from the trial court’s postjudgment order denying his Penal Code section 1170.95 petition.1 He argues the court erred by denying his section 1170.95 petition in his absence without issuing an order to show cause and conducting an evidentiary hearing. The Attorney General asserts the court properly denied the petition because the jury found true a felony-murder special circumstance and Zepeda was therefore ineligible for section 1170.95 relief as a matter of law. This is not the first time we have had to decide whether a jury’s true finding on a felony-murder special circumstance prior to the Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark) rendered a defendant ineligible for relief under section 1170.95 as a matter of law.2 We concluded it did not in People v. Gonzalez (2021) 65 Cal.App.5th 420 (Gonzalez), review granted August 18, 2021, S269792. Consistent with our decision in Gonzalez, we conclude the trial court erred by denying Zepeda’s petition at the prima facie stage because the jury’s true finding on the felony-murder special circumstance did not render Zepeda ineligible for relief as a matter of law. Accordingly, we reverse and remand the postjudgment order for the trial court to issue an order to show cause as required by section 1170.95, subdivision (c). FACTS In 2014, a jury convicted Zepeda of: first degree murder (§ 187, subd. (a); count 1) and found the murder was committed during the commission of a kidnapping (§ 190.2, subd. (a)(17)(B) [felony murder-kidnap special circumstance]); kidnapping for ransom, reward or extortion and found he intentionally confined the victim in a way that