People v. Love CA2/2 ( 2022 )


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  • Filed 3/3/22 P. v. Love 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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,                                                  B302892
    Plaintiff and Respondent,                           (Los Angeles County
    Super. Ct. No. TA138408)
    v.
    DAVAUGHN LOVE,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los
    Angeles County, Eleanor J. Hunter, Judge. Reversed and
    remanded.
    Kelly C. Martin, under appointment by the Court of
    Appeal, for Defendant and Appellant.
    Rob Bonta and Xavier Becerra, Attorneys General, Lance
    E. Winters, Chief Assistant Attorney General, Susan Sullivan
    Pithey, Assistant Attorney General, Charles S. Lee, Theresa A.
    Patterson, and Amanda V. Lopez, Deputy Attorneys General, for
    Plaintiff and Respondent.
    ******
    Davaughn Love (defendant), who was convicted of
    attempted murder and other crimes in 2016, appeals from the
    denial of his petition for resentencing under Penal Code section
    1170.95.1 In a partially published opinion issued on October 1,
    2020, we affirmed that denial solely on the ground that section
    1170.95 did not accord relief to persons convicted of attempted
    murder. (People v. Love (Oct. 1, 2020, B302892) (Love).)
    Defendant filed a petition for review by the California Supreme
    Court, which was held along with numerous similar cases. While
    this case has been pending, our Legislature enacted and the
    Governor signed into law Senate Bill No. 775 (Senate Bill 775).
    (Stats. 2021, ch. 551.) Senate Bill 775 amended section 1170.95
    to expand eligibility for resentencing to persons convicted of
    attempted murder. On December 16, 2020, the California
    Supreme Court granted review in this case, and, in an order filed
    January 26, 2022, transferred the case back to this court with
    directions to vacate our prior decision and reconsider in light of
    Senate Bill 775. In light of the enactment of Senate Bill 775, we
    vacate our previous opinion and decision in this case (Love) and
    remand the matter to the trial court for a new evidentiary
    hearing pursuant to section 1170.95, subdivision (d)(3).
    1     All further statutory references are to the Penal Code
    unless otherwise indicated.
    2
    FACTS AND PROCEDURAL BACKGROUND
    I.    Facts2
    A.     The underlying crime
    In mid-August 2015, defendant drove a fellow gang
    member (Antwoine Vaughn) into a rival gang’s territory in the
    midst of a retaliation campaign against that rival gang. They
    enlisted a third gang member to follow them in a separate car
    and videotape their anticipated exploits. Once they arrived in
    the rival gang’s territory, “[defendant] stopped the car, and
    Vaughn got out and approached a man standing on the sidewalk
    with a woman and two children. After exchanging a few words,
    Vaughn pulled out a gun and opened fire on the man’s back.
    Vaughn continued ‘shooting wildly’ as the man tried to flee into a
    nearby intersection. All in all, 10 bullets hit the man (causing
    injuries to his head, chest, leg and hand), and three bullets struck
    a nearby car that was driving through the intersection. Vaughn
    got back into the car, and [defendant] drove away.” The next day,
    defendant sent a text message to Vaughn, reminding him to
    “move” the gun.
    B.     Prosecution, conviction and appeal
    The People charged defendant with (1) the attempted
    murder of the man Vaughn shot 10 times (§§ 187, subd. (a), 664,
    subd. (a)), and (2) shooting at the occupied vehicle struck by
    another three bullets Vaughn shot (§ 246). The People further
    alleged that these crimes were committed “for the benefit of, at
    the direction of, or in association with a criminal street gang” (§
    2     We draw these facts from our prior, unpublished opinion
    affirming defendant’s convictions. (People v. Vaughn & Love
    (May 30, 2019, B277941) (Vaughn & Love).)
    3
    186.22, subd. (b)(4)), and that a principal had discharged a
    firearm and caused great bodily injury (§ 12022.53, subd. (d)).3
    The trial court instructed the jury that defendant could be
    held liable for attempted murder (1) if he aided and abetted
    Vaughn in committing the attempted murder, (2) if he aided and
    abetted Vaughn in committing an “assault” and murder was a
    natural and probable consequence of that assault, or (3) if he and
    Vaughn conspired to commit an assault and murder was a
    foreseeable consequence of that conspiracy.
    The jury convicted defendant of attempted murder and
    shooting at an occupied vehicle. The jury also found true the
    gang and firearm allegations.
    The trial court sentenced defendant to state prison for life,
    with a minimum term of 47 years. For the attempted murder,
    the court sentenced defendant to life in prison with a minimum
    term of 32 years, with the minimum comprised of 7 years for the
    attempted murder itself plus an additional 25 years for the
    firearm enhancement. For shooting at an occupied vehicle, the
    court imposed a consecutive life term with a minimum term of 15
    years.
    Defendant appealed his conviction and sentence. We
    affirmed defendant’s conviction and sentence but remanded the
    matter so that the trial court could determine whether to exercise
    its discretion to strike the firearm enhancement.
    Defendant petitioned for review before the Supreme Court,
    and the Supreme Court granted review and remanded the matter
    3      The People also alleged that defendant had suffered two
    prior “strike” convictions under our three strikes law (§§ 667,
    subds. (b)-(j), 1170.12, subds. (a)-(d)) and had served one prior
    prison term (§ 667.5, subd. (b)).
    4
    to us with directions to consider whether to apply the newly
    enacted Senate Bill 1437.
    After entertaining further briefing on the applicability of
    Senate Bill 1437, we issued an unpublished opinion on May 30,
    2019, that (1) affirmed defendant’s convictions, (2) remanded the
    matter for the trial court to consider whether to strike the
    firearm enhancement, and (3) denied any relief pursuant to
    Senate Bill 1437 without prejudice to defendant filing a petition
    for relief with the trial court pursuant to the mechanism set forth
    in section 1170.95 for seeking relief under the bill.
    II.    Procedural Background
    On September 18, 2019, and October 7, 2019, defendant
    filed two separate petitions seeking to vacate his attempted
    murder conviction on the basis of section 1170.95. On October
    22, 2019, the trial court denied his motions on the ground that
    section 1170.95 did not apply to convictions for attempted
    murder.
    On October 24, 2019, defendant filed a motion asking the
    trial court to exercise its newly conferred discretion to strike the
    25-year firearm enhancement on the attempted murder count.
    The trial court held a hearing on November 20, 2019. After
    recounting the facts of the case the court expressed its
    “confiden[ce]” that defendant “knew what was going on” and was
    “integral to the shooting.” Given defendant’s “integral” role, the
    court declined to “exercise its discretion to strike the gun
    allegation.”
    On November 20, 2019, defendant filed a notice of appeal
    from the order denying his petitions for relief under section
    5
    1170.95.4 At that time, the Court of Appeal was split on whether
    section 1170.95 applied to attempted murder convictions. We
    affirmed the order denying the petition because we interpreted
    then-existing section 1170.95 to authorize relief for defendants
    convicted of murder, but not attempted murder. (People v. Love
    (2020) 
    55 Cal.App.5th 273
    , 279, review granted Dec. 16, 2020,
    S265445 (Love).) Defendant petitioned for review in the Supreme
    Court. The Supreme Court granted review, transferred the
    matter back to this court, and directed us to vacate our prior
    decision and reconsider in light of Senate Bill 775. Following the
    transfer, the Attorney General and defendant submitted
    supplemental briefs addressing the impact of Senate Bill 775 on
    this case.
    DISCUSSION
    In his supplemental brief, the Attorney General concedes
    that reversal and remand for a new hearing is appropriate. We
    agree.
    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 Court of
    Appeal was split on whether section 1170.95 applied to attempted
    4     On May 6, 2020, we issued an order construing that notice
    of appeal also to encompass the trial court’s judgment that
    declined to strike the firearm enhancement.
    6
    murder as well as murder, with some courts holding that section
    1170.95 did not apply to attempted murder at all, others holding
    that it applied only prospectively to attempted murder, and still
    others holding that it applied both prospectively and retroactively
    to nonfinal attempted murder convictions. (See Love, supra, 55
    Cal.App.5th at pp. 278-279 [summarizing the split of authority as
    of Oct. 1, 2020].)
    Senate Bill 775 resolved this split of authority by amending
    section 1170.95 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.
    Defendant’s appeal from the denial of his resentencing petition
    was not final by that date; thus, defendant may avail himself of
    this latest amendment. (People v. Vieira (2005) 
    35 Cal.4th 264
    ,
    306; People v. Garcia (2018) 
    28 Cal.App.5th 961
    , 973.)
    7
    DISPOSITION
    The order denying defendant’s section 1170.95 petition is
    reversed, and the matter remanded for an evidentiary hearing
    pursuant to section 1170.95, subdivision (d)(3), as amended by
    Senate Bill 775.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    ______________________, J.
    HOFFSTADT
    We concur:
    _________________________, Acting P. J.,
    ASHMANN-GERST
    _________________________, J.
    CHAVEZ
    8
    

Document Info

Docket Number: B302892A

Filed Date: 3/3/2022

Precedential Status: Non-Precedential

Modified Date: 3/3/2022