DISCUSSION

Defendant contends the trial court’s denial order must be reversed because, while his appeal was pending, the Legislature amended section 1170.95 to apply to the crime of attempted murder. The People argue defendant’s claim is not ripe for adjudication but acknowledges remand “may be appropriate” if we are inclined to apply the new legislation to defendant’s case. We agree with defendant and will remand the matter. Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 1, 2019, “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.) It also added former section 1170.95, which allowed those convicted of felony murder or murder under the natural and probable consequences theory to petition the trial court to vacate and resentence the defendant. (Former § 1170.95, subd. (a).) “If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause.” (Former § 1170.95, subd. (c).)

3 Senate Bill No. 775 amended section 1170.95 to clarify that the petition process now also applies to persons previously convicted of attempted murder or manslaughter under a felony murder or natural and probable consequences theory. (§ 1170.95, subd. (a).) The change applies to acts predating its enactment as either an ameliorative statute under In re Estrada (1965) 63 Cal.2d 740, 748 or a clarification of law (Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243; People v. Lee (2018) 24 Cal.App.5th 50, 57). Under either theory, defendant is entitled to the benefit of the new provisions to section 1170.95. In his petition, defendant stated he could not now be convicted of his crimes based on the recent changes to section 188 and 189. The trial court denied defendant’s petition because former section 1170.95 did not apply to attempted murder convictions. Given that Senate Bill No. 775 has now clarified that section 1170.95 does apply to attempted murder convictions, defendant may be entitled to relief and we must reverse the order denying relief and remand for further proceedings.

DISPOSITION

The order denying defendant’s petition for recall and resentencing is reversed. The matter is remanded for further proceedings consistent with this opinion.

/s/ Robie J.

We concur:

/s/ Blease, Acting P. J.

/s/ Hoch, J.

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