People v. Servin CA2/1

Filed 1/30/23 P. v. Servin CA2/1 Opinion on remand from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B301690

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA190204) v.

JOSE DANIEL SERVIN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Douglas Sortino, Judge. Reversed and remanded with instructions. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee, David E. Madeo, and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

In January and February 2019, Jose Daniel Servin filed two petitions pursuant to former Penal Code section 1170.95 1 by which he sought resentencing relief relating to a conviction for first degree murder. The trial court found Servin failed to make a prima facie showing that he was entitled to relief because the jury’s special circumstance finding contradicted Servin’s allegation that he did not act with the intent to kill or was not a major participant who acted with reckless indifference to human life. In 2020, we affirmed the trial court’s order. In doing so, we rejected Servin’s argument that the jury’s special circumstance finding made 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) did not foreclose relief under former section 1172.6 as a matter of law. (People v. Servin (Sept. 25, 2020, B301690) [nonpub. opn.].) The Supreme Court granted review. On September 28, 2022, the Supreme Court transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Servin and the Attorney General agree that in light of these authorities, we should reverse and remand the matter and direct the trial court to issue