People v. Davila CA2/5 ( 2022 )

Filed 4/22/22 P. v. Davila CA2/5
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B298856
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA090972)
v.
GILBERT JOSEPH DAVILA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Salvatore T. Sirna, Judge. Reversed and
remanded with directions.
Mark S. Givens, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
In 2010, defendant Gilbert Davila and his two codefendants
assaulted two men, for which they were each convicted of two
counts of attempted premeditated murder. The evidence and
verdicts indicated defendant and one codefendant personally
assaulted one victim, while the other codefendant personally
assaulted the second victim. In 2013, we affirmed the
convictions, rejecting the defendants’ claim of insufficient
evidence. Specifically, with respect to the victim that each
defendant did not personally assault, we held the evidence was
sufficient to uphold the convictions on a theory of aiding and
abetting under the natural and probable consequences doctrine.
(People v. Davila (May 3, 2013, B239117) [nonpub. opn.] [2013
WL 1874740, pp. *5-*6].)
In 2019, defendant filed a petition for resentencing under
Penal Code section 1170.95 (section 1170.95). He used a form
petition which had been created for defendants who were
convicted of murder and believed they were entitled to relief
under section 1170.95. Because defendant was not convicted of
murder, but instead of attempted murder, he interlineated
“attempted” at one point in the petition. He requested assistance
of counsel. The trial court summarily denied his petition without
a hearing or appointment of counsel.
In 2020, we affirmed the order denying defendant’s section
1170.95 petition. We concluded that the terms of section 1170.95,
as they then existed, permitted relief only for those convicted of
murder, not attempted murder. (People v. Davila (Aug. 28, 2020,
B298856) [nonpub. opn.].)
After our disposition of defendant’s appeal, however, the
Legislature passed and the Governor signed Senate Bill No. 775
(2020-2021 Reg. Sess.) (SB 775), which became effective on
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January 1, 2022. As clarified by SB 775, section 1170.95 applies
to persons convicted of “attempted murder under the natural and
probable consequences doctrine.” (§ 1170.95, subd. (a).) In
response to defendant’s petition for review of our opinion
resolving his appeal, our Supreme Court transferred this cause
back to us with directions to vacate our decision and reconsider
the matter in light of SB 775 and People v. Lewis (2021)
11 Cal.5th 952.
We vacated our earlier opinion as instructed and solicited
supplemental briefing from the parties. Defendant argues, the
Attorney General concedes, and we agree that reversal of the
trial court’s order summarily denying defendant’s section 1170.95
petition is required in light of the change in law. (People v. Porter
(2022) 73 Cal.App.5th 644, 647; People v. Montes (2021)
71 Cal.App.5th 1001, 1006.)
DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed and the matter remanded with directions to appoint
counsel for defendant, and to conduct further proceedings
consistent with section 1170.95, subdivision (c).
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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