People v. Wedel CA5

Filed 6/13/22 P. v. Wedel CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F081897 Plaintiff and Respondent, (Super. Ct. No. CF02907603-5) v.

CHRISTOPHER LAWRENCE WEDEL, OPINION Defendant and Appellant.

THE COURT * APPEAL from an order of the Superior Court of Fresno County. Gary D. Hoff, Judge. Randall Conner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Franson, J. and Peña, J.

Appellant Christopher Lawrence Wedel appeals following the denial of his petition for resentencing under the then applicable statute, Penal Code former section 1170.95 (Stats. 2018, ch. 1015, § 4). The parties agree that the trial court erred in making certain factual findings and thus should not have denied appellant’s motion at the prima facie stage of the statutory proceedings. Upon review of the record and arguments, we agree and therefore reverse the trial court’s order and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND On March 4, 2003, an information was filed alleging appellant and Robert Lynn Upchurch committed murder. Appellant was ultimately convicted of second degree murder after a jury trial. In appellant’s direct appeal from his conviction, this court provided a factual background regarding the evidence presented at trial and noted that the prosecution had proceeded only upon a charge of second degree murder, relying on an implied malice theory and a second degree felony murder theory. (People v. Wedel (May 3, 2005, F044476) [nonpub. opn.].)1 On June 11, 2020, appellant petitioned for resentencing under Penal Code former section 1170.95 by submitting a preprinted form. By checking various boxes, appellant alleged he had been charged with an offense that allowed the prosecution to proceed under a felony murder theory, that he was convicted of second degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine, and that he could no longer be convicted of second degree murder because of changes made to Penal Code sections 188 and 189. Appellant requested appointment of counsel and checked boxes stating he “was not the actual killer,” “did not, with the intent to kill, aid, abet, … or assist the actual killer in the commission of murder in the first degree,” “was not a