Filed 1/9/20 P. v. Collier CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TRACY LAVAIL COLLIER,

Defendant and Appellant.

E073168

(Super.Ct.No. SCR56699)

OPINION

APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.

Laura Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

In 1992, a jury found defendant and appellant Tracy Lavail Collier guilty of attempted first degree murder. (Pen. Code, §§ 664, 187, count 1.) It also found that he personally used a firearm in the commission of the offense, within the meaning of former section 12022.5, subdivision (a). A trial court sentenced him to a term of life with the possibility of parole, plus four years on the firearm use enhancement.

On September 30, 2018, the Governor signed Senate Bill No. 1437, which became effective on January 1, 2019. Senate Bill No. 1437 “was enacted 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.’ ” (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) Senate Bill No. 1437 added section 1170.95, “which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions.” (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417.)

On January 23, 2019, defendant filed a petition pursuant to section 1170.95. On May 30, 2019, he filed an amended petition, alleging that he could not now be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019.

The court held a hearing on the petition on June 28, 2019. Defendant waived his appearance and was represented by counsel. Counsel argued that Senate Bill No. 1437 applied to attempted murder, not just murder, under principles of equal protection. Counsel noted there was a pending decision from a higher court as to whether it was applicable, and asked the court to continue the case for receipt of that decision. The court denied the petition, finding that his conviction for premeditated attempted murder was not described in section 1170.95, subdivision (a).

Defendant filed a notice of appeal, appealing the denial of the section 1170.95 petition. We affirm.

ANALYSIS

Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and identifying two potential arguable issues: (1) whether the court prejudicially erred by denying defendant’s section 1170.95 petition outside of his presence; and (2) whether the court prejudicially erred by finding section 1170.95, subdivision (a), did not apply to defendant’s conviction for premeditated attempted murder. Counsel has also requested this court to undertake a review of the entire record.

We offered the defendant an opportunity to file a personal supplemental brief, which he has not done.

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.