People v. Harper CA4/1

Filed 4/13/23 P. v. Harper CA4/1 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078886

Plaintiff and Respondent,

v. (Super. Ct. Nos. ECR12538 & ECR12540) STEVEN BOYD HARPER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Daniel G. Lamborn, Judge. Reversed with directions. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Acting Assistant Attorney General, Steve Oetting and Amanda Lloyd, Deputy Attorneys General, for Plaintiff and Respondent.

Steven Boyd Harper appeals the order denying his petition for

resentencing under Penal Code section 1172.6.1 He contends the superior court erred by denying the petition without first issuing an order to show cause and holding an evidentiary hearing. The People concede the error. We reverse the order and remand the matter for further proceedings. I. BACKGROUND A. Murder Conviction On May 20, 2000, Harper and other members of his criminal street gang armed themselves and went to the apartment of a drug dealer to rob him. During the encounter, the drug dealer was shot and killed. A jury found Harper guilty of felony murder, found true an attached gang enhancement allegation, and found not true an allegation he personally and intentionally discharged a firearm causing death. On October 12, 2001, the superior court sentenced Harper to prison for 25 years to life for the murder plus a consecutive prison term of 10 years for the gang enhancement. On appeal, this court modified the judgment by striking the gang enhancement and imposing a 15-year minimum parole eligibility period and affirmed the judgment as modified. (People v. Harper (2003) 109 Cal.App.4th 520, 527-528 (Harper).) B. Section 1172.6 Petition Effective January 1, 2019, the Legislature changed the felony-murder rule “to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § l, subd. (f).) It did so by adding subdivision (e) to