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SB 1437 Motion Denied, then Reversed for SB 775 Evaluation

As the reader of this article may be aware, Senate Bill 775 expanded the new felony murder rule to allow Senate Bill 1437 resentencing procedures under Penal Code § 1170.95 to those convicted of attempted murder and manslaughter under the old felony murder rule or the natural and probable consequences doctrine if the person would not now be convicted under the new felony murder rule. 
Brief Synopsis: This is the first published appellate ruling on the applicability of AB 775 to a petition for resentencing under Penal Code § 1172.6 (former Penal Code § 1170.95) involving a conviction for attempted murder under a natural and probable consequences doctrine.         
As is inevitable, there is a case where a person convicted of attempted murder filed a petition for resentencing under § 1170.95 when the old law under 1437 was in effect, and it was denied because attempted murder was excluded from the law.  This person then appealed the ruling of the trial court to the appellate court and while the appeal was pending, the new law came into effect, requiring the appellate court to reverse the trial court and remand in light of the change in the law.

This unique situation played out for Nathaniel David Porter in a Kings County Superior Court and, later in the Fifth Appellate District Court in Fresno and is worth a closer look.

On December 1, 2007, shortly after 2:41 a.m., Michael S. and Kathryn G. stopped at a gas station and convenience store in Visalia to buy sodas. 

Michael went into the store while Kathryn stayed in the gray Dodge Ram pickup with the engine running and the heater on.

While Michael was in the store, two men wearing hooded sweatshirts and glasses approached the running pickup from behind, one on each side, opened the truck doors and order Kathryn to get out.  Kathryn saw both men were holding what she thought were guns and she got out.

The men then jumped into the pickup truck and drove off.  Michael came out of the convenience store to see the men getting into the pickup and driving away.  He asked the store clerk to call 911, which he did.

A pair of CHP officers were notified of the gray Dodge Ram truck being stolen at gunpoint and then noticed it traveling westbound on Highway 198 in Hanford.  They gave chase with their siren illuminated.  The driver of the Dodge Ram truck was Nathaniel David Porter.  The passenger was Eric Armendariz.

Eventually, after quite a chase with Porter driving even on the wrong side of the road to pass cars, Porter pulled over.  Once he stopped and the CHP officers got out of their car to walk forward to the truck, Armendariz got out of the passenger side and fired three to five shots at the CHP officers, but did not hit either of them.  Armendariz then jumped back in the pickup and Porter drove off.

The CHP again pursued the pickup until it crashed into some parked cars.  Armendariz and Porter ran off.  Armendariz, injured from the crash, was found hiding in a nearby church.  Porter turned himself in two days later.

A jury convicted Porter of two counts of attempted murder of a peace officer (Penal Code § 187 / 664(e)), one count of carjacking (Penal Code § 215), one count of driving with willful and wanton disregard for the safety of others while evading a police officer (Vehicle Code § 2800.2(a)) and one count of hit and run with injury (Vehicle Code § 20001(a)). 

On appeal, the Fifth Appellate District Court concluded sufficient evidence supported Porter’s convictions for attempted murder under a natural and probable consequences doctrine theory.

In January 2020, Porter, in pro per, filed a petition for resentencing under SB 1437 and pursuant to Penal Code § 1170.95.  He stated he was not the actual killer, did not act with intent to kill and was not a major participant in the underlying felony and did not act with reckless indifference to human life in the course of the crime.

The Kings County Superior Court judge assigned to the motion denied it, holding that 1437 did not apply to those convicted of attempted murder.

Porter then appealed to the Fifth Appellate District in Fresno.  While the appeal was pending, Senate Bill 775 was passed into law on January 1, 2022.  The District Attorney conceded that the new law applied and that Porter may be able to establish a prima facie case showing of eligibility for resentencing under the new law, as amended by SB 775.

Therefore, the Fifth Appellate District Court stayed the appeal and remanded for the trial court to determine Porter’s eligibility for resentencing under the new provisions of the law.

We present this summary to show how the Fifth Appellate District Court did not rule on the merits of the appeal because the law applicable to Porter had changed, so it sent the case back to the trial court to reevaluate the motion under the new law.

The citation for the Fifth Appellate District Court ruling discussed above is People v. Michael David Porter (5th App. Dist., 2022) 73 Cal. App. 5th 644, 288 Cal. Rptr. 3d 688.

For more information about SB 775 and prior reported decisions denying 1437 relief for attempted murder, please click on the following articles:
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