DISCUSSION

Senate Bill 1437 substantially modified the law relating to accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile)) and significantly narrowing the felony-murder exception to the malice requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e)(3); see Lewis, supra, 11 Cal.5th at p. 957.) It also authorized, through new section 1170.95, an individual convicted of felony murder or murder based on the natural and probable consequences doctrine to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder because of Senate Bill 1437’s changes to the definition of the crime. (See Lewis, at p. 957; Gentile, at p. 843.) There was disagreement among the courts of appeal whether new section 188, subdivision (a)(3)’s prohibition against imputing malice to establish liability for murder other than in specified felony-murder cases also precluded finding a defendant guilty of attempted murder under the natural and probable consequences doctrine. Notwithstanding that conflict, all courts of appeal recognized that, by its express terms, section 1170.95 as enacted by Senate Bill 1437 did not authorize a petition to vacate an attempted murder conviction. As amended effective January 1, 2022 by Senate Bill 775, however, section 1170.95, subdivision (a), now provides, “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

4 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 . . . .” (Italics added.)2 In her reply brief Duarte argues, with the passage of Senate Bill 775, the order summarily denying her petition for resentencing should be reversed and the cause remanded with directions to the superior court to appoint counsel and to thereafter reconsider her petition consistent with the provisions of section 1170.95 as newly amended.3 In a supplemental letter

2 In an uncodified statement of its intent in enacting Senate Bill 775, the Legislature declared the legislation “(a) Clarifies that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories. [¶] (b) Codifies the holdings of People v. Lewis (2021) 11 Cal.5th 952, 961-970, regarding petitioners’ right to counsel and the standard for determining the existence of a prima facie case. [¶] (c) Reaffirms that the proper burden of proof at a resentencing hearing under this section is proof beyond a reasonable doubt. [¶] (d) Addresses what evidence a court may consider at a resentencing hearing (clarifying the discussion in People v. Lewis, supra, at pp. 970-972).” (Stats. 2021, ch. 551, § 1.) 3 In her opening brief Duarte argued the superior court’s summary denial of her petition without appointment of counsel violated the plain language of section 1170.95, subdivision (c), as well as her right to due process. She also argued Senate Bill 1437 applied to accomplice liability for attempted murder, not just murder, and the contrary interpretation of the legislation would violate her right to equal protection. The Attorney General in his respondent’s brief argued any error in not

5 brief filed at the request of this court, the Attorney General has agreed with Duarte’s recommendation, observing that the record on appeal “does not establish whether her convictions were necessarily based on an actual malice. [Citations.] Accordingly, she may be able to establish a prima facie showing of eligibility.” We agree with the request for a remand as well.

DISPOSITION

The postjudgment order denying Duarte’s section 1170.95 petition is reversed. On remand the superior court is to permit Duarte to amend her petition to identify her convictions for attempted murder, appoint counsel for Duarte, order the prosecutor to file a response to the petition and provide Duarte an opportunity to file a reply, and determine whether Duarte has made a prima facie showing that she is entitled to relief in accordance with section 1170.95, subdivision (c), as amended by Senate Bill 775.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.

appointing counsel was harmless because Duarte was ineligible for relief as a matter of law and excluding individuals convicted of attempted murder from Senate Bill 1437’s ameliorative provisions was constitutional.

6