People v. Taituave CA2/2 ( 2022 )


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  • Filed 3/7/22 P. v. Taituave CA2/2
    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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
    certified for publication or ordered published for purposes of rule 8.1115.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 TWO
    THE PEOPLE,                                                  B305271
    Plaintiff and Respondent,                          (Los Angeles County
    Super. Ct. No.
    v.                                                 NA081157)
    MIKE TAITUAVE,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los Angeles
    County, Judith L. Meyer, Judge. Reversed and remanded with
    directions.
    Thomas Owen, under appointment by the Court of Appeal, for
    Defendant and Appellant.
    Xavier Becerra and Rob Bonta, Attorneys General, Lance E.
    Winters, Chief Assistant Attorney General, Susan Sullivan Pithey,
    Senior Assistant Attorney General, Noah P. Hill, Idan Ivri and Peggy
    Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.
    We remand this case with directions to the superior court to
    determine whether appellant Mike Taituave, convicted in 2010 among
    other offenses of five counts of attempted murder, should be
    resentenced under the provisions of Senate Bill No. 775 (Stats. 2021,
    ch. 551 (SB 775)). SB 775, effective January 1, 2022, extends the
    provisions of Penal Code section 1170.95 (section 1170.95) to persons
    convicted of attempted murder under the natural and probable
    consequences doctrine. Prior to January 1, 2022, section 1170.95 was
    limited to persons convicted of first or second degree murder.
    PROCEDURAL HISTORY
    Appellant was convicted by a jury of conspiracy to commit
    murder (Pen. Code, § 182, subd. (a)(1)), five counts of attempted murder
    (§§ 664, 187 subd. (a)), and five counts of assault with a firearm (§ 245,
    subd. (a)(2)). The jury found true gang allegations on all counts
    (§ 186.22, subd. (b)(1)(C)). The jury found all five attempted murders to
    be willful, deliberate, and premeditated.
    Appellant was sentenced to a term of 90 years to life in state
    prison. The sentence was composed of six consecutive 15-years-to-life
    terms on the conspiracy and the five attempted murder counts. The
    sentences on the assault counts were stayed pursuant to Penal Code
    section 654.
    Taituave appealed. The judgment was affirmed in People v.
    Taituave et al. (May 15, 2012, B225435) [nonpub. opn.] [2012 Cal.App.
    Unpub. LEXIS 3619] (People v. Taituave I), with the exception that the
    sentence on the conspiracy to commit murder count was stayed under
    Penal Code section 654, reducing his sentence to 75-years-to-life
    imprisonment. Appellant also received an additional 71 days of custody
    credit. The court corrected the stayed sentence on the murder
    conspiracy count to a term of 25 years to life. (People v. Taituave I,
    supra.)
    Appellant filed a petition for resentencing under section 1170.95
    on January 29, 2020. The superior court denied the petition summarily
    on February 5, 2020, without appointing counsel. The court gave as the
    reason for its denial that the “petitioner was NOT convicted of murder.
    2
    This defendant was the shooter and was convicted of attempted
    murder.” (Boldface omitted.) The trial court did not appoint counsel
    for appellant in connection with his section 1170.95 petition.
    In People v. Taituave (June 21, 2021, B305271) [nonpub. opn.]
    [2012 Cal.App. Unpub. LEXIS _____] (People v. Taituave II), we
    concluded that appellant was not eligible for resentencing because he
    was not convicted of murder but only of attempted murder. Our
    conclusion was based on the text of subdivision (a)(2) and (3) of section
    1170.95, which limited the provisions of section 1170.95 to persons
    convicted of first or second degree murder. (Taituave II, supra.)
    We also concluded that because appellant’s conviction for
    attempted murder disqualified him for relief as a matter of law, the
    superior court was empowered to conclude that appellant had not made
    out a prima facie showing that he fell within the provision of section
    1170.95. (There was no prima facie case for relief since appellant was
    unable to comply with the requirement of subdivision (b)(1)(A) of
    section 1170.95 that he was eligible for relief under subdivision (a) of
    section 1170.95.)1 We therefore affirmed the trial court’s summary
    denial of appellant’s petition. (Taituave II, supra.)
    The California Supreme Court granted appellant’s petition for
    review on August 25, 2021, but deferred further action on the petition.
    On January 5, 2022, the Supreme Court transferred the case to us with
    directions to vacate our decision in Taituave II and reconsider the cause
    in light of SB 775.
    SB 775
    Effective January 1, 2022, section 1170.95 was amended to
    include persons convicted of attempted murder and manslaughter, in
    addition to persons convicted of murder. (§ 1170.95, subd. (a)(2), (3).)
    In the instance of attempted murder, section 1170.95 extends to
    1 The petition had to include a declaration by the petitioner that
    he or she was eligible for relief under subdivision (a) of section 1170.95.
    (§ 1170.95, subd. (b)(1)(A).)
    3
    persons convicted of attempted murder under the natural and probable
    consequences doctrine.2
    As noted, the trial court had summarily denied appellant’s
    section 1170.95 petition on the ground, affirmed by us, that he was
    ineligible for relief as a matter of law. The trial court therefore did not
    address the issue whether appellant was convicted of attempted
    murder under the natural and probable consequences doctrine. While
    it is true that the trial court’s order also states that appellant “was the
    shooter” (Taituave II, supra), the trial court’s summary denial of the
    petition necessarily meant that there was no operative decision of this
    issue.
    Respondent contends that appellant’s conviction of conspiracy to
    commit murder, which is a specific intent crime, shows that appellant
    had the specific intent to kill. Because the conspiracy count arose from
    the same course of conduct as the attempted murder counts,
    2 “(a) 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 when all of the following
    conditions apply:
    “(1) A complaint, information, or indictment was filed against the
    petitioner that allowed the prosecution to proceed under a theory of
    felony murder, 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, or attempted
    murder under the natural and probable consequences doctrine.
    “(2) The petitioner was convicted of murder, attempted murder,
    or manslaughter following a trial or accepted a plea offer in lieu of a
    trial at which the petitioner could have been convicted of murder or
    attempted murder.
    “(3) The petitioner could not presently be convicted of murder or
    attempted murder because of changes to Section 188 or 189 made
    effective January 1, 2019.” (§ 1170.95, subd. (a).)
    4
    respondent claims that “appellant acted with the intent to kill as a
    matter of law with respect to the attempted murder counts.” For this
    reason, respondent contends that this court should hold as a matter of
    law that appellant is ineligible for relief under section 1170.95.
    Respondent’s argument overlooks the procedure that must be
    followed in applying section 1170.95. As we show in the following
    passage, that procedure requires in this case the appointment of
    counsel, briefing, and a hearing to determine whether appellant has
    made a prima facie case for relief.
    As noted, the prosecution in this case could proceed on the theory
    that appellant was guilty of attempted murder under the natural and
    probable consequences doctrine, thus satisfying the first requirement of
    subdivision (a)(1) of section 1170.95. (See fn. 2, ante.) Appellant was
    convicted of five counts of attempted murder, which satisfies the
    requirement of subdivision (a)(2) of section 1170.95. Finally, appellant
    could not be convicted of attempted murder under the natural and
    probable consequences doctrine because of changes to Penal Code
    sections 188 and 189 made effective January 1, 2019, which is the third
    requirement of subdivision (a) of section 1170.95.
    Subdivision (b)(1) of section 1170.95 sets forth the required
    allegations of a petition seeking relief under section 1170.95. The first
    of those requirements is a declaration by the petitioner that he or she is
    eligible for relief under section 1170.95 “based on the requirements of
    subdivision (a).” (§ 1170.95, subd. (b)(1)(A).)3 In this case, after the
    enactment of SB 775, petitioner can allege that he is eligible for relief
    because he has satisfied the requirements of subdivision (a) of section
    1170.95.
    Subdivision (c) of section 1170.95 goes on to provide: “Within 60
    days after service of a petition that meets the requirements set forth in
    subdivision (b), the prosecutor shall file and serve a response. The
    petitioner may file and serve a reply within 30 days after the
    3The second and third required allegations are the superior court
    case number of the petitioner’s conviction and whether petitioner
    requests the appointment of counsel. (§ 1170.95, subd. (b)(1)(B), (C).)
    5
    prosecutor’s response is served. . . . After the parties have had an
    opportunity to submit briefings, the court shall hold a hearing to
    determine whether the petitioner has made a prima facie case for relief.
    If the petitioner makes a prima facie showing that the petitioner is
    entitled to relief, the court shall issue an order to show cause. If the
    court declines to make an order to show cause, it shall provide a
    statement fully setting forth its reasons for doing so.” (§ 1170.95,
    subd. (c).)
    It is clear that appellant is entitled to the rights and procedures
    set forth in subdivision (c). We therefore decline to even address, much
    less decide, the issue under what theory appellant was convicted of the
    attempted murders.
    DISPOSITION
    Our decision in Taituave II is vacated. The February 5, 2020
    order is reversed and the cause is remanded to the superior court with
    directions to hear and determine appellant’s petition under Penal Code
    section 1170.95 in accordance with the provisions of Senate Bill No. 775
    and Penal Code section 1170.95 as amended effective January 1, 2022.
    NOT TO BE PUBLISHED.
    LUI, P. J.
    We concur:
    ASHMANN-GERST, J.
    CHAVEZ, J.
    6
    

Document Info

Docket Number: B305271A

Filed Date: 3/7/2022

Precedential Status: Non-Precedential

Modified Date: 3/7/2022