People v. Kersting CA1/1

Filed 7/10/23 P. v. Kersting CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A166718 v. MORRIS FRED KERSTING, (Solano County Super. Ct. No. FC18026) Defendant and Appellant.

MEMORANDUM OPINION1 Morris Kersting appeals from an order summarily denying his petition for resentencing under Penal Code2 section 1172.6. The trial court denied the petition on the basis that it had already denied his previous petition for resentencing under former section 1170.95, an order this court affirmed in 2021. (People v. Kersting (Mar. 1, 2021, A159901) [nonpub. opn.] (Kersting I).) But the trial court denied the previous petition without prejudice, at Kersting’s counsel’s request, and our affirmance of that order did not foreclose Kersting from filing another petition. Therefore, we agree

We resolve this case by a memorandum opinion pursuant to 1

California Standards of Judicial Administration, section 8.1(2). 2 All further statutory references are to the Penal Code.

1

with the parties that a remand is required for the court to reconsider the instant petition. “Effective January 1, 2019, Senate Bill [No.] 1437 [(2017–2018 Reg. Sess.) (Senate Bill No. 1437) (Stats. 2018, ch. 1015)] amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, ‘[m]alice shall not be imputed to a person based solely on his or her participation in a crime.’ (§ 188, subd. (a)(3).)” (People v. Turner (2020) 45 Cal.App.5th 428, 433.) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless the defendant “was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e).) Senate Bill No. 1437 also enacted former section 1170.95, now section 1172.6, which established a procedure for eligible defendants to petition for resentencing. Under the current statute, “[a] person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts” as long as three requirements are met: (1) the charging document allowed the prosecution to proceed under a theory of felony murder, murder or attempted murder under the natural and probable consequences doctrine, or other theory of imputed malice; (2) the