People v. Ervin CA2/8

Filed 2/8/23 P. v. Ervin CA2/8 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B309740

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA090280) v.

FRANK ERVIN et al.,

Defendants and Appellants.

APPEAL from judgments of the Superior Court of Los Angeles County. James D. Otto, Judge. Reversed and remanded with directions. Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant Frank Ervin. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant Shawn Verrette. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez, Charles S. Lee and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.

********** Defendants and appellants Frank Ervin and Shawn Verrette are each serving a life sentence without the possibility of parole for the special circumstance murder and robbery of Franklin Robles. Defendants appeal from the orders denying their respective petitions for resentencing pursuant to Penal Code section 1172.6 (formerly § 1170.95). During the pendency of this appeal, former section 1170.95 was renumbered as section 1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.) We refer to the statute only by its new designation for clarity. We reverse both orders denying defendants’ petitions and remand for the trial court to conduct further proceedings pursuant to Penal Code section 1172.6. BACKGROUND Ervin, Verrette and a third defendant, Luis Orozco, were charged with the 2010 special circumstance murder of Franklin Robles. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17); count 1.) They were also charged with robbery (§ 211; count 2), residential burglary (§ 459; count 3) and conspiracy to commit a crime (§ 182, subd. (a)(1); count 4). Various firearm use and prior conviction allegations were also alleged. Orozco is not a party to this appeal. The first joint trial of Ervin, Verrette and Orozco resulted in a mistrial due to juror misconduct. The retrial proceeded in October 2015. The jury found all three defendants guilty of murder, robbery and conspiracy to commit a crime and found true the robbery-murder special-circumstance allegation and various firearm use allegations.