People v. Murillo CA2/1

California Court of Appeal Dec 1, 2022 No. B297546Unpublished

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Holding. The court held that a pre-Banks/Clark felony-murder special-circumstance finding does not preclude a defendant from establishing a prima facie case for resentencing under Penal Code section 1172.6, and that trial courts may not engage in factfinding at the prima facie stage.

Issues

Does a pre-Banks/Clark felony-murder special-circumstance finding disqualify a defendant from resentencing relief under Penal Code section 1172.6?
May a trial court engage in factfinding or weigh evidence at the prima facie stage of a section 1172.6 petition?

Disposition. reversed

Quotations verified verbatim against the opinion

“The Supreme Court in Strong held that this type of analysis is improper at the prima facie stage.”

“Because Murillo has made a prima facie case for resentencing, the trial court must issue an order to show cause and conduct further proceedings in the case.”

Filed 12/1/22 P. v. Murillo CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B297546

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. LA010613)

JOSE MURILLO,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Frank M. Tavelman, Judge. Reversed. George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri, Noah P. Hill and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.

Mark Zahner (California District Attorneys Association); Michael A. Hestrin, District Attorney (County of Riverside), Alan D. Tate, Managing Deputy District Attorney, Jesse Male, Deputy District Attorney; Jason Anderson, District Attorney (County of San Bernardino), and James R. Secord, Deputy District Attorney, for California District Attorneys Association as Amicus Curiae on behalf of the Plaintiff and Respondent.

____________________________

In 2019, the trial court summarily denied defendant and appellant Jose Murillo’s petition under former Penal Code1 section 1170.95 for resentencing on his murder conviction. In a previous opinion, we affirmed, reasoning that the jury’s finding of a felony-murder special circumstance (§ 190.2, subd. (a)(17)) made Murillo ineligible for resentencing as a matter of law. The Supreme Court subsequently vacated our decision and ordered us to reconsider the case in light of its decision in People v. Strong (2022) 13 Cal.5th 698 (Strong). Both Murillo and the Attorney General agree, as do we, that we must reverse the denial of Murillo’s petition and remand the case for further proceedings in the trial court. FACTS AND PROCEEDINGS BELOW

People v. Murillo CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B297546

JOSE MURILLO,

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