People v. Austin CA2/6 ( 2022 )


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  • Filed 2/8/22 P. v. Austin CA2/6
    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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
    THE PEOPLE OF THE STATE                                        2d Crim. No. B301152
    OF CALIFORNIA,                                                (Super. Ct. No. 1027776)
    (Santa Barbara County)
    Plaintiff and Respondent,
    OPINION ON REMAND
    v.
    LENARD AUSTIN, JR.,
    Defendant and Appellant.
    Lenard Austin, Jr., who was convicted of attempted murder
    in 2001, appeals the summary denial of his petition for
    resentencing under Penal Code1 section 1170.95. In a November
    2020 unpublished decision, we affirmed on the ground that relief
    under section 1170.95 was not available to those convicted of
    attempted murder rather than murder. (People v. Austin (Nov.
    25, 2020, B301152) [nonpub. opn.].) Austin petitioned for review
    in the California Supreme Court. The court granted review and
    1   All statutory references are to the Penal Code.
    held the case along with numerous similar cases. While the
    matter was pending, the Governor signed into law Senate Bill
    No. 775 (Senate Bill 775), which amended section 1170.95 to
    expand eligibility for resentencing to persons convicted of
    attempted murder. (Stats. 2021, ch. 551.)
    On December 22, 2021, the California Supreme Court
    transferred the case back to this court with directions to vacate
    our prior decision and reconsider the matter in light of Senate
    Bill 775. (People v. Austin (Dec. 22, 2021, S266398).) The parties
    submitted supplemental briefing in which they agree that the
    matter must be remanded. We agree with the parties and
    accordingly reverse and remand for further proceedings.
    FACTS AND PROCEDURAL HISTORY
    The relevant facts are recited from our 2003 unpublished
    opinion affirming the convictions of Austin and his codefendant
    Steven Lee. (People v. Lee (June 30, 2003, B154641) [nonpub.
    opn.].) Lee and Austin entered Anthony’s Jewelers in Santa
    Maria wearing wigs, hats, fake beards, heavy jackets, and black
    boots. When the owner’s son, Jeffrey Shreves, asked if he could
    help them, they said they were just browsing. After looking into
    all the display cases, they left. Shortly thereafter, appellants
    returned, feigning interest in a bracelet.
    The third time appellants entered, they asked to speak to
    the store’s owner, Anthony Chaparro. Chaparro became
    frightened and asked his son to write down a license plate
    number if anything should happen. Chaparro asked two other
    employees to stay near panic buttons. Chaparro asked
    appellants if he could help them. Appellants did not respond, so
    Chaparro asked appellants, “What the fuck do you want?” Austin
    2
    replied, “fuck you.” Chaparro retorted, “get the fuck out of my
    store.”
    As appellants appeared to be leaving the store, Lee whirled
    around, grabbed Shreves from behind, and threw him to the
    ground. Lee pulled a semiautomatic gun from his jacket, pointed
    it at Shreves, dragged him from the front of the store, and
    handcuffed him. The receptionist, Misty Sinay, pressed a silent
    alarm and ducked down. Chaparro fled out the back door and
    called the police. Estiban Rodriguez, the jewelry repairman,
    observed this activity on his television monitor. He pushed his
    panic button and hid in the back of the store.
    Lee demanded that Shreves hand over the keys and
    retrieve the tape from the surveillance system. Shreves was
    scared and responded he did not have the keys.
    Lee pointed his gun at Danielle Pfaendler, the assistant
    manager, who was crouching underneath a desk nearby. Lee told
    Pfaendler to give him the three rings that were on her fingers,
    directed her to lie down next to Shreves, and handcuffed her.
    Pfaendler saw one of the men bring Sinay into the back
    room to retrieve the security tape for Lee, but Sinay did not know
    how to do it. When she attempted to extract the tape, it jammed.
    Austin grabbed her arm, pointed his revolver at her, and yelled at
    her to open the glass jewelry cases. After telling Austin she did
    not have the keys to open the jewelry cases, she saw him smash
    open the cases with the butt of his gun and scoop up jewelry with
    his hands. Shreves also saw appellants scooping up jewelry into
    their arms. Lee told Sinay to lie on the ground next to Shreves
    and Pfaendler, and he handcuffed her.
    After asking Shreves and Pfaendler where the cash drawer
    was, Lee took some money and repaired jewelry from two
    3
    drawers. One of the men took Shreves’ wallet from his back
    pocket as they ran towards the back door. As they reached the
    back door, appellants saw Rodriguez and pointed a gun at him.
    Chaparro saw appellants flee out the back door as he was talking
    to a police dispatcher on a cell phone outside a nearby restaurant.
    The police converged on the scene, ran after appellants, and
    shouted at them to stop. Officer McCray, who was unarmed,
    nearly ran into Lee. Officers McCray and Streker, and other
    witnesses, testified that Lee pointed a gun at McCray’s head and
    shot once from a distance of about five feet. Officer McCray
    flinched, jumped to his left, fell to the ground and sought cover
    behind Streker’s motorcycle. Officer Streker screamed at
    McCray, asking if he had been hit. Officer Streker thought Lee
    pointed his 9 millimeter gun at him, too.
    Police continued to yell at Lee to stop, but he continued to
    run while firing another round at the officers. Police shot at Lee
    several times, striking him as he jumped a picket fence. The
    wounded Lee fell to the ground.
    After Lee shot at the police, Lee and Austin split up.
    Austin ran between two houses where he disappeared from view.
    A neighbor saw Austin throw a large revolver away. Officers
    found Austin hiding in a garbage can and arrested him as he
    tried to escape. Officer McCray found a .44 Dan Wesson revolver
    with five live rounds in it lying in the center median of the street
    near where Austin was arrested. The gun had been recently
    fired, but no shell casings were found in the vicinity.
    While patting down Austin, police found many pieces of
    jewelry in his pockets with tags from Anthony’s Jewelers on
    them. The police found more items of jewelry, two wigs, a metal
    briefcase, and a loaded Daewoo semiautomatic pistol near where
    4
    Lee and Austin were captured. Jewelry was also found on the
    ground behind the store.
    When police approached Lee, who was lying on the ground,
    they found a Beretta semiautomatic pistol about a foot away from
    his right hand. The safety of the Beretta was off, no round was in
    the chamber, and its magazine was found at the base of the fence.
    A shell casing was found nearby. The casing did not match any
    of the munitions issued to the policemen who fired at the scene,
    but it did match some of those within the magazine of Lee’s
    Beretta.
    A jury convicted Austin of attempted murder of a peace
    officer (§§ 187, subd. (a), 664), assault on a peace officer (§ 245,
    subd. (d)(2)), exhibiting a weapon with the intent to resist an
    officer (§ 417.8), five counts of robbery (§ 211), and commercial
    burglary (§ 459). The jury also found true allegations that Austin
    personally and intentionally used and discharged a firearm and
    that he knew or should have known that the victim of the
    attempted murder was a peace officer (§§ 12022.5, subd. (a),
    12022.53, subd. (b)). He was sentenced to life without the
    possibility of parole plus 33 years and 8 months. His convictions
    and sentence were subsequently affirmed on appeal. (People v.
    Lee, supra, B154641.)
    In July 2019, Austin filed a petition for resentencing under
    section 1170.95. The trial court found that appellant was
    ineligible for relief under section 1170.95 because he was
    convicted of attempted murder rather than murder, and
    accordingly denied the petition. After we affirmed the judgment
    on appeal, the Supreme Court granted review, transferred the
    matter back to this court, and directed us to vacate our decision
    and reconsider the matter in light of Senate Bill 775.
    5
    DISCUSSION
    In a supplemental brief, the People concede that a reversal
    and remand is required. We accept the People’s concession.
    Senate Bill 1437 enacted section 1170.95, which
    “amend[ed] the felony murder rule and the natural and probable
    consequences doctrine, as it relates to murder, 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, § 1, subd. (f);
    People v. Gentile (2020) 
    10 Cal.5th 830
    , 842.)
    Prior to the enactment of Senate Bill 775, the Courts of
    Appeal were split on whether Senate Bill 1437 applied to
    attempted murder. Senate Bill 775 resolved this split of
    authority by amending Senate Bill 1437 to explicitly afford relief
    to persons convicted of attempted murder and manslaughter.
    Senate Bill 775’s amendments to section 1170.95 became effective
    January 1, 2022. Austin’s appeal from the denial of his
    resentencing petition was not final as of that date, so he is
    entitled to the benefit of the new provisions in section 1170.95.
    (People v. Porter (2022) 
    73 Cal.App.5th 644
    .) Accordingly, we
    shall remand the case so the trial court may reconsider whether
    Austin has stated a prima facie case that he is entitled to relief
    under section 1170.95 as amended January 1, 2022. We express
    no opinion on how the petition should ultimately be resolved.
    DISPOSITION
    The trial court’s order denying Austin’s section 1170.95
    petition is reversed. The case is remanded to the trial court to
    appoint counsel and conduct further proceedings consistent with
    section 1170.95, subdivision (c).
    6
    NOT TO BE PUBLISHED.
    PERREN, J.
    We concur:
    GILBERT, P. J.
    YEGAN, J.
    7
    Gustavo Lavayen, Judge
    Superior Court County of Santa Barbara
    ______________________________
    Thomas Owen, under appointment by the Court of Appeal,
    for Defendant and Appellant.
    Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
    Winters, Chief Assistant Attorney General, Susan Sullivan
    Pithey, Senior Assistant Attorney General, Scott A. Taryle,
    Supervising Deputy Attorney General, and Colleen M.
    Tiedemann, Deputy Attorney General, for Plaintiff and
    Respondent.
    

Document Info

Docket Number: B301152A

Filed Date: 2/8/2022

Precedential Status: Non-Precedential

Modified Date: 2/8/2022