California Cases June 30, 2020: People v. Beverly

Case Description

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. FVA09174)

OPINION

APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda, Judge. Reversed and remanded with directions.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Tamar Pachter and Nelson R. Richards, Deputy Attorneys General, as Amici Curiae on behalf of Defendant and Appellant.

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Jason Anderson, District Attorney, and James R. Secord, Deputy District Attorney, for Plaintiff and Respondent.

In 2018, the Legislature passed and the Governor signed into law Senate Bill No. 1437 (Senate Bill 1437), legislation that prospectively amended the mens rea requirements for the offense of murder and restricted the circumstances under which a person can be liable for murder under the felony-murder rule or the natural and probable consequences doctrine. (Stats. 2018, ch. 1015, § 4.) Senate Bill 1437 also established a procedure permitting certain qualifying persons who were previously convicted of felony murder or murder under the natural and probable consequences doctrine to petition the courts that sentenced them to vacate their murder convictions and obtain resentencing on any remaining counts. ( Ibid .; see Pen. Code, § 1170.95)

Defendant and appellant Darrell Beverly appeals from an order denying his petition to vacate a first degree murder conviction in which he aided and abetted one or more codefendants and obtain resentencing under the procedures established by Senate Bill 1437. The trial court granted the People's motion to strike defendant's petition after concluding the resentencing provision of Senate Bill 1437 invalidly amended Proposition 7 (Prop. 7, as approved by voters, Gen. Elec. (Nov. 7, 1978)) and Proposition 115 (Prop. 115, as approved by voters, Primary Elec. (June 5, 1990)), voter

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initiatives that increased the punishments for persons convicted of murder and augmented the list of predicate offenses for first degree felony murder liability, respectively.

Defendant argues Senate Bill 1437 is constitutional and therefore the order denying his petition for resentencing must be reversed and the matter remanded for further proceedings. He also contends the trial court's May 17, 2019 minute order must be corrected to conform to the court's written ruling on the petition for resentencing.

The People urge us to affirm the order striking defendant's petition and find Senate Bill 1437 unconstitutional on grounds that: (1) Senate Bill 1437 unlawfully amended Proposition 7; (2) Senate Bill 1437 invalidly amended Proposition 115; (3) the resentencing provision of section 1170.95 violates the separation of powers doctrine; and/or (4) the resentencing provision deprives crime victims the rights afforded them by the Victims' Bill of Rights Act of 2008, commonly known as Marsy's Law (Prop. 9, as approved by voters, Gen. Elec. (Nov. 4, 2008)). The People agree that the trial court's May 17, 2019 minute order should be amended.

All published opinions addressing this issue have concluded that Senate Bill 1437 did not unconstitutionally amend either initiative. Most recently, in People v . Johns (June 8, 2020, E072412) ___ Cal.App.5th ___ [2020 Cal.App.Lexis 498], People v . Prado (2020) 49 Cal.App.5th 480, People v . Bucio (2020) 48 Cal.App.5th 300, 306, People v . Solis (2020) 46 Cal.App.5th 762 ( Solis ) and People v . Cruz (2020) 46 Cal.App.5th 740 ( Cruz ), our sister courts concluded that Senate Bill 1437 is constitutional. Previously, Division One of this court in People v . Lamoureux (2019) 42 Cal.App.5th 241

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( Lamoureux ), review denied February 19, 2020, S259835, and People v . Superior Court ( Gooden ) (2019) 42 Cal.App.5th 270 ( Gooden ), review denied February 19, 2020, S259700, concluded Senate Bill 1437 did not invalidly amend Proposition 7 or Proposition 115. The Lamoureux court also determined that the resentencing provisions of Senate Bill 1437 do not contravene separation of powers principles or violate the rights of crime victims.

Agreeing with the analyses and the conclusions set forth in those opinions, we reverse the trial court's order granting the People's motion to strike defendant's resentencing petition and remand with directions to consider defendant's petition on its merits and to correct the May 17, 2019 minute order to reflect the trial court's written ruling on the petition.

In November 1997, defendant, then a 15-year-old male, joined two 18-year-old males, David Crew and Charles Thomas, to break into an 89-year-old victim's home. After spending about 10 minutes in the house looking for property and not finding anything, defendant saw Thomas push the victim down and decided to leave. Defendant

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ran home while Crew and Thomas stayed behind. It was only sometime later that defendant found out that the victim died as a result of a severe beating administered by Crew and Thomas. The official cause of death was blunt trauma to the victim's head and chest.

Defendant was subsequently arrested and convicted of one count of first degree murder (§ 187, subd. (a); count 1) as an aider and abettor under the felony-murder rule, first degree residential robbery (§ 211; count 2), and first degree residential burglary (§ 459; count 3). With respect to counts 2 and 3, the jury also made a true finding on the allegation that the victim was over the age of 65 and that the victim's age was or should have been known to defendant. The trial court sentenced defendant to (1) an indeterminate term of 25 years to life on the murder count, (2) a consecutive aggravated five-year term on the robbery count, and (3) a concurrent middle term of four years on the burglary count.

On February 9, 2000, a panel of this court rejected defendant's contention that the evidence was insufficient to support defendant's conviction of first degree felony murder because "there was absolutely no evidence that defendant took any affirmative steps to prevent the commission of the murder by his accomplices." This court also rejected defendant's constitutional challenges to the felony-murder rule and found defendant's sentence did not violate the state constitutional ban on cruel and unusual punishment. (See Beverly , supra , E024623, at pp. 2-21.)

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In 2018, after defendant's judgment of conviction became final, the Legislature enacted and the Governor signed Senate Bill 1437, effective January 1, 2019. (See Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill 1437 amended the felony-murder rule and the natural and probable consequences doctrine as it relates to murder. Senate Bill 1437 also added section 1170.95, which allows those "convicted of felony murder or murder under a natural and probable consequences theory . . . [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts . . . ." (§ 1170.95, subd. (a).)

On January 3, 2019, defendant in pro. per. filed a petition for resentencing pursuant to section 1170.95.

On March 12, 2019, the People filed a motion to strike defendant's petition for resentencing on grounds that the amendments effectuated by Senate Bill 1437 were unconstitutional, in whole or part, for three reasons. First, they argued Senate Bill 1437 invalidly amended Proposition 7, a voter initiative that increased the punishment for first degree murder from a term of life imprisonment with parole eligibility after seven years to a term of 25 years to life. (Prop. 7, §§ 1-2.) Second, the People contended Senate Bill 1437 unconstitutionally amended Proposition 115, a voter initiative that augmented the list of predicate offenses giving rise to first degree felony murder liability. (Prop. 115, § 9.) Third, they claimed section 1170.95 violated the separation of powers doctrine because it impermissibly interfered with a core judicial function of resolving specific controversies between parties.

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On March 28, 2019, defendant's appointed counsel filed an opposition to the People's motion to strike the petition for resentencing.

On May 15, 2019, the trial court issued a written order denying defendant's petition for resentencing, finding Senate Bill 1437 unconstitutional. The court concluded section 1170.95 unlawfully amended Propositions 7 and 115 and granted the People's motion to strike defendant's petition without reaching the merits of defendant's petition. In its written order filed May 15, 2019, the trial court specifically stated that it did not "reach the merits of defendant's petition." The court's May 17, 2019 minute order, however, states defendant's petition was denied because the court found defendant did not meet the criteria set forth in section 1170.95 and thus was ineligible.

On May 20, 2019, defendant appealed the order granting the People's motion to strike his resentencing petition. The Attorney General permitted the Office of the District Attorney of San Bernardino County to represent the People's interests in this appeal and, for its part, filed an amicus curiae brief defending the constitutionality of Senate Bill 1437.

A. General Background of Senate Bill 1437

On September 30, 2018, the Governor signed Senate Bill 1437. "The legislation, which became effective on January 1, 2019, addresses certain aspects of California law regarding felony murder and the natural and probable consequences doctrine by

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amending Penal Code sections 188 and 189, as well as by adding Penal Code section 1170.95, which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in law would affect their previously sustained convictions." ( People v . Martinez (2019) 31 Cal.App.5th 719, 722 ( Martinez ).)

An uncodified section of the law expressing the Legislature's findings and declarations states the law was "necessary to amend 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).) It further provides that the legislation was needed "to limit convictions and subsequent sentencing so that the law of California fairly addresses the culpability of the individual and assists in the reduction of prison overcrowding, which partially results from lengthy sentences that are not commensurate with the culpability of the individual." ( Id ., § 1, subd. (e).)

Prior to Senate Bill 1437's enactment, a person who knowingly aided and abetted a crime, the natural and probable consequence of which was murder or attempted murder, could be convicted of not only the target crime but also of the resulting murder or attempted murder. ( People v . Chiu (2014) 59 Cal.4th 155, 161; In re R . G . (2019) 35 Cal.App.5th 141, 144 ( R . G .).) "This was true irrespective of whether the defendant harbored malice aforethought. Liability was imposed '"for the criminal harms [the defendant] . . . naturally, probably, and foreseeably put in motion." [Citations.]'

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[Citation.]" ( R . G ., at p. 144.) "The purpose of the felony-murder rule [was] to deter those who commit[ted] the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony." ( People v . Cavitt (2004) 33 Cal.4th 187, 197.) Aider and abettor liability under the doctrine was thus "vicarious in nature." ( People v . Chiu , at p. 164.)

Senate Bill 1437 "redefined 'malice' in section 188. Now, to be convicted of murder, a principal must act with malice aforethought; malice can no longer 'be imputed to a person based solely on [his or her] participation in a crime.' (§ 188, subd. (a)(3).)" ( R . G ., supra , 35 Cal.App.5th at p. 144.) "Senate Bill 1437 also amended section 189, which defines first and second degree murder, by, among other things, adding subdivision (e). Under that subdivision, a participant in enumerated crimes is liable under the felony-murder doctrine only if he or she was the actual killer; or, with the intent to kill, aided and abetted the actual killer in commission of first degree murder; or was a major participant in the underlying felony and acted with reckless indifference to human life." ( People v . Munoz (2019) 39 Cal.App.5th 738, 749; § 189, subd. (e); Stats. 2018, ch. 1015, § 3; People v . Lopez (2019) 38 Cal.App.5th 1087, 1099-1100, review granted Nov. 13, 2019, S258175; Martinez , supra , 31 Cal.App.5th at p. 723.) "Senate Bill 1437 thus ensures that murder liability is not imposed on a person who did not act with implied or express malice," or—when the felony-murder doctrine is at issue—"was not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying

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felony who acted with reckless indifference to human life." ( People v . Munoz , at pp. 749-750; Stats. 2018, ch. 1015, § 1, subds. (f), (g); People v . Anthony (2019) 32 Cal.App.5th 1102, 1147; Martinez , at p. 723.)

Senate Bill 1437 also added section 1170.95, which permits persons convicted of murder under a felony murder or natural and probable consequences theory to petition in the sentencing court for an order vacating their convictions and allowing defendant to be resentenced. (Stats. 2018, ch. 1015, § 4; Martinez , supra , 31 Cal.App.5th at p. 723.) An offender may file a section 1170.95 petition if he or she was prosecuted under a felony murder or natural and probable consequences theory, but under amended sections 188 or 189, could not have been convicted of first or second degree murder. (§ 1170.95, subd. (a).) If the petitioner makes a prima facie showing that he or she is entitled to relief, the trial court must conduct a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d)(1); Martinez , at pp. 723-724.) At such a hearing, both the prosecution and the defense may rely on the record of conviction or may offer new or additional evidence. (§ 1170.95, subd. (d)(3).) "[T]he burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." (§ 1170.95, subd. (d)(3); Martinez , at pp. 723-724.)

If the petitioner is found eligible for relief, the murder conviction must be vacated and the petitioner resentenced "on any remaining counts in the same manner as if the petitioner had not been [ sic ] previously been sentenced, provided that the new sentence,

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if any, is not greater than the initial sentence." (§ 1170.95, subd. (d)(1).) If the petitioner is found eligible for relief, but "murder was charged generically[ ] and the target offense was not charged," the petitioner's murder conviction must be "redesignated as the target offense or underlying felony for resentencing purposes." (§ 1170.95, subd. (e).)

B. Constitutionality of Senate Bill 1437

Proposition 7 had increased the penalties for first and second degree murder and expanded the list of special circumstances that, if found true, would require a sentence of death or life imprisonment without the possibility of parole. Proposition 115 expanded the number of crimes to which the felony-murder rule would apply and made numerous changes to various statutes to protect the rights of crime victims and witnesses in criminal cases.

The People argue Senate Bill 1437 unconstitutionally amends Propositions 7 and 115 by decreasing the number of people who are subject to conviction, and thus punishment, for murder. The People also contend that the resentencing petition process established under Senate Bill 1437, specifically section 1170.95, violates the separation of powers doctrine and that the resentencing provision is in direct conflict with Proposition 9 or Marsy's Law. Since the trial court's ruling in this case, constitutional challenges to Senate Bill 1437 have been rejected. (See generally Lamoureux , supra , 42 Cal.App.5th 241; Gooden , supra , 42 Cal.App.5th 270; Solis , supra , 46 Cal.App.5th. 762; Cruz , supra , 46 Cal.App.5th 740.)

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In Solis and Cruz , Division Three of this court rejected the People's arguments. The Solis court explained: "A statute enacted by voter initiative may be amended or repealed by the Legislature only with the approval of the electorate, unless the initiative statute otherwise provides. [Citation.] '"[T]he purpose of California's constitutional limitation on the Legislature's power to amend initiative statutes is to 'protect the people's initiative powers by precluding the Legislature from undoing what the people have done, without the electorate's consent.'"'" ( Solis , supra , 46 Cal.App.5th at p. 771.)

"For purposes of article II, section 10 of the California Constitution, legislation amends an initiative if it '"'change[s] an existing initiative statute by adding or taking from it some particular provision.'"' [Citations.] '[T]his does not mean that any legislation that concerns the same subject matter as an initiative, or even augments an initiative's provisions, is necessarily an amendment for these purposes. "The Legislature remains free to address a '"related but distinct area"' [citations] or a matter that an initiative measure 'does not specifically authorize or prohibit.'" [Citations.] In deciding whether this particular provision amends Proposition 115, we simply need to ask whether it prohibits what the initiative authorizes, or authorizes what the initiative prohibits.'" ( Solis , supra , 46 Cal.App.5th at pp. 771-772.)

With respect to Proposition 7, the Fourth Appellate District, Division Three held: "Proposition 7 provided greater penalties for those convicted of murder and increased the number of special circumstances that could form the basis of a sentence of death or life in prison without parole. In contrast, Senate Bill No. 1437 changed the elements of murder

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by limiting the circumstances in which malice can be implied, thereby restricting the application of the felony-murder rule and the natural and probable consequences doctrine. Senate Bill No. 1437 is neither inconsistent with Proposition 7, nor does it circumvent the electorate's intent." ( Solis , supra , 46 Cal.App.5th at p. 779; see Cruz , supra , 46 Cal.App.5th at pp. 755-756.)

With respect to Proposition 115, the appellate court concluded: "Senate Bill No. 1437 . . . limits liability for felony murder and murder under the natural and probable consequences doctrine to an individual who is the actual killer, or who had the intent to kill and undertook specific actions to assist in commission of the murder, or who was a major participant in the underlying felony and acted with reckless indifference to human life. These limitations do not directly modify or amend the language of Proposition 115." ( Solis , supra , 46 Cal.App.5th at p. 781; see Cruz , supra , 46 Cal.App.5th at pp. 759-761.)

The Fourth Appellate District, Division One, reached the same conclusion in a pair of cases challenging the constitutionality of Senate Bill 1437. In Gooden , supra , 42 Cal.App.5th 270, the appellate court concluded "Senate Bill 1437 was not an invalid amendment to Proposition 7 or Proposition 115 because it neither added to, nor took away from, the initiatives." ( Id . at p. 275.) Gooden noted Senate Bill 1437 does not speak to the penalties for murder; rather, it amends the mental state required for murder. ( Gooden , at p. 287.)

With respect to Proposition 7, the Gooden court explained: Senate Bill 1437 did not amend Proposition 7 because it did not "address the same subject matter [as

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Proposition 7]. It did not prohibit what Proposition 7 authorizes by, for example, prohibiting a punishment of 25 years to life for first degree murder or 15 years to life for second degree murder. Nor did it authorize what Proposition 7 prohibits by, for instance, permitting a punishment of less than 25 years for first degree murder or less than 15 years for second degree murder. In short, it did not address punishment at all. Instead, it amended the mental state requirements for murder, which 'is perhaps as close as one might hope to come to a core criminal offense "element."'" ( Gooden , supra , 42 Cal.App.5th at p. 282, quoting Apprendi v . New Jersey (2000) 530 U.S. 466, 493.)

Because Senate Bill 1437 and Proposition 7 concerned different subjects, the Gooden court concluded Proposition 7 did not foreclose the Legislature from enacting Senate Bill 1437 to amend the mental state requirements for murder under the felony-murder rule and the natural and probable consequences doctrine. ( Gooden , supra , 42 Cal.App.5th at pp. 282-286.) Gooden 's analysis applied to all the legislative amendments effectuated by Senate Bill 1437, including section 1170.95. ( Gooden , at p. 286.)

Gooden , supra , 42 Cal.App.5th at pages 287 and 288, similarly found Senate Bill 1437 does not amend Proposition 115, which made more offenses eligible for felony murder. The Gooden court explained, again, Senate Bill 1437 "did not augment or restrict the list of predicate felonies on which felony murder may be based" but instead "amended the mental state necessary for a person to be liable for murder." ( Gooden , at p. 287.) The court thus concluded that because Senate Bill 1437 does not amend Propositions 7 and 115, it does not violate article II, section 10, subdivision (c), of the

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California Constitution, which provides that the Legislature may amend or repeal an initiative statute only with voter approval, unless the original initiative permits amendment or repeal without voter approval. ( Gooden , at pp. 279, 289.)

In Lamoureux , the same appellate court used the same analysis as it had in Gooden to again conclude Senate Bill 1437 did not unconstitutionally amend the earlier enacted initiatives. ( Lamoureux , supra , 42 Cal.App.5th at p. 246.) The Lamoureux court further concluded that "the resentencing provision of Senate Bill 1437 does not contravene separation of powers principles or violate the rights of crime victims." ( Ibid .)

The Lamoureux court explained, first, the bill was part of a broad penal reform to ensure our state's murder laws fairly address individual culpability and to reduce prison overcrowding. ( Lamoureux , supra , 42 Cal.App.5th at pp. 247, 256.) Having such a purpose, any interference with the executive's power of clemency is merely incidental and not an impermissible encroachment on the core functions of the executive. ( Id . at p. 256.) Second, the bill does not intrude on a core function of the judiciary by allowing prisoners serving final sentences to seek relief. To the extent retroactive reopening of final judgments implicates individual liberty interests, Senate Bill 1437 does not present any risk to those interests. ( Lamoureux , at p. 261.) "On the contrary, it provides potentially ameliorative benefits to the only individuals whose individual liberty interests are at stake in a criminal prosecution," the criminal defendant. ( Ibid .) Also, the legal landscape is rife with legislation allowing petitioners to reopen final judgments of

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conviction without regard to their finality as of the effective date of the legislation, for example, Propositions 36 and 47. ( Lamoureux , at pp. 262-263.)

Regarding crime victims' rights as enshrined in Marsy's Law, the court in Lamoureux , supra , 42 Cal.App.5th at pages 264 to 266 explained, although Marsy's Law established a victim's right to prompt and final conclusion to postjudgment proceedings, Marsy's Law did not foreclose postjudgment proceedings altogether. ( Lamoureux , at pp. 264-265.) The court also noted section 1170.95 does not deprive victims of safety-related rights because trial courts may consider that factor when resentencing the defendant on any remaining counts. ( Lamoureux , at pp. 265-266.)

The analyses and holdings in Solis and Cruz apply equally here, as do the holdings of Gooden and Lamoureux . We agree with the reasoning in those cases, and likewise conclude Senate Bill 1437 is constitutional and does not violate Propositions 7 and 115, the separation of powers doctrine, and/or Marsy's Law. Defendant is therefore entitled to file his resentencing petition pursuant to section 1170.95 and have a hearing on his petition.

C. Correction of Minute Order

We agree with defendant and the People that the court's May 17, 2019 minute order clearly does not conform to the trial court's written order denying defendant's section 1170.95 petition for resentencing. Therefore, we will order that minute order corrected.

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On May 15, 2019, the trial court issued a written order denying defendant's petition, concluding Senate Bill 1437 is unconstitutional. In its written order, the court expressly stated twice that, because it was finding Senate Bill 1437 unconstitutional, it did not find it necessary to reach the merits of defendant's petition.

The parties subsequently appeared in court on May 17, 2019. At that time, the trial court noted the matter had been called for a decision on defendant's petition for resentencing and that it had filed its decision denying the petition. Defense counsel acknowledged having received the written order. The court thereafter stated the matter would be taken off calendar. However, the court's May 17, 2019 minute order incorrectly noted, "Court finds [defendant] does [not] meet PC 1170.95 criteria; ineligible." This notation by the clerk of the court is incorrect because the trial court's written order did not make any finding on the merits of defendant's petition or whether defendant met the criteria for relief under section 1170.95. In addition, the trial court made no such oral statement during the May 17, 2019 hearing.

Accordingly, the court's May 17, 2019 minute order must be corrected to reflect the trial court's written order denying defendant's petition. ( People v . Mitchell (2001) 26 Cal.4th 181, 186-188; see In re Candelario (1970) 3 Cal.3d 702, 705 [court has inherent power to correct errors in its records to make records reflect the true facts].)

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The trial court's postjudgment order granting the People's motion to strike defendant's section 1170.95 resentencing petition is reversed. The matter is remanded with directions to consider the merits of defendant's petition under section 1170.95. The clerk of the superior court is directed to correct the May 17, 2019 minute order to reflect the trial court's written order denying defendant's petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
Acting P. J.

We concur:

SLOUGH
J.

RAPHAEL
J.