People v. Radloff CA4/1

Filed 7/20/23 P. v. Radloff CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080082

Plaintiff and Respondent,

v. (Super. Ct. No. SCN370158)

JAMIE RADLOFF,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Carlos O. Armour, Judge. Affirmed. Janice R. Mazur, 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, Assistant Attorney General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

Following her 2019 first degree murder conviction and the subsequent denial of her direct appeal in January 2021, in May 2021, Jamie Radloff filed

a petition for resentencing under former Penal Code section 1170.95 (now

section 1172.6).1 The prosecutor filed a response, and the court eventually appointed Radloff counsel shortly before a hearing on the matter, at which Radloff’s attorney appeared. However, the court did not give Radloff an opportunity to file a brief responding to the prosecutor. The court denied the resentencing petition, concluding Radloff was not eligible for relief because she was convicted after section 1172.6 became effective. Radloff appeals, contending the court erred by waiting to appoint counsel and by denying her petition without offering the opportunity to respond to the prosecution. The Attorney General concedes the court erred by making its decision without the benefit of briefing but contends the error was harmless. We agree with the Attorney General, and we affirm. BACKGROUND AND PROCEDURAL FACTS The details of the crime are not essential to our analysis. A summary of them can be found in our opinion on Radloff’s direct appeal. (People v. Radloff (Jan. 27, 2021, D075891 [unpub. opn.].) At trial, the court provided a felony murder jury instruction that included the factors discussed in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). The instructions also explained that “[a] person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death. This requires the person to actually know that under the circumstances the crime in which he or she is participating carries a higher probability of death than normally attends to the commission of such