People v. Wollett CA2/6

facts set forth in our prior opinion reversing Wollett’s first degree murder conviction were sufficient to prove that he could still be convicted of either felony murder or implied malice murder. Wollett contends, and the People correctly concede, that the court erred in denying the petition without issuing an order to show cause and holding an evidentiary hearing. It is clear that the court—in apparent reliance on our subsequently depublished decision in People v. Garcia (previously published at 57 Cal.App.4th 100 (Garcia))—erroneously weighed the evidence and made credibility determinations in finding that Wollett could still be found guilty of second degree murder. It is also clear from the record that Wollett was not tried or convicted on a felony- murder theory, but rather was tried solely on the now-invalid theory that the murder was a natural and probable consequence of the assault. Moreover, assault with a deadly weapon cannot provide the basis for a conviction of section degree felony murder. (People v. Chun (2009) 45 Cal.4th 1172, 1200.) Accordingly, we reverse and remand.

FACTUAL AND PROCEDURAL HISTORY

Wollett, codefendant Chad Westbrook, Sarah Lonsinger– Rey (Rey),…