Opinion
D078265
01-10-2022
THE PEOPLE, Plaintiff and Respondent, v. YUSSEF YIRISH TAFICH, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Raglan, Eric A. Swanson, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Bernardino County, No. FWV1102700 Shahla Sabet, Judge. Retired Judge of San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Raglan, Eric A. Swanson, and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
HUFFMAN, J.
In 2011, Yussef Yirish Tafich and a number of others were charged with murder and kidnapping. While others went to trial, Tafich entered into a plea bargain. In 2013, Tafich pleaded no contest to kidnapping (Pen. Code, § 207, subd. (a)) and voluntary manslaughter (§ 192, subd. (a)). Tafich also admitted that he and the codefendants inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). The remaining charges and allegations were dismissed.
All further statutory references are to the Penal Code.
Tafich was sentenced to a determinate term of 15 years eight months in prison.
In 2020, Tafich filed a petition for resentencing pursuant to section 1170.95. The trial court summarily denied the petition on the grounds that the law, as in effect at the time, did not apply to persons who pleaded guilty to manslaughter as lesser offenses of murder.
Tafich appealed and this court affirmed the denial of the petition, relying on the body of caselaw that held section 1170.95 and Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437) did not apply to cases such as Tafich's. (People v. Tafich (D078265, Aug. 31, 2021) [nonpub. opn.].)
Tafich petitioned for review and the Supreme Court granted review and remanded the case to this court to reconsider in light of the newly enacted Senate Bill No. 775 (Stats. 2021, ch. 551) (Senate Bill 775), which became effective January 1, 2022. We requested and received supplemental briefs on the impact of Senate Bill 775 on this case. Having now reconsidered the case, including the agreement of the parties that the case should be reversed and remanded, we will reverse the order denying the petition for resentencing and remand the matter to the superior court with directions to issue an order to show cause and to conduct an evidentiary hearing on the petition.
DISCUSSION
Prior to the enactment of Senate Bill 775, the virtually unanimous body of appellate opinion was that persons who pleaded guilty to manslaughter as lesser offenses of murder were not eligible for resentencing under Senate Bill 1437 and section 1170.95. (People v. Turner (2020) 45 Cal.App.5th428, 431-441.) The Legislature's stated purpose, in part, in enacting Senate Bill 775 was to "clarify" that section 1170.95 could be applicable to manslaughter convictions.
In their supplemental briefs, the parties recognize the purpose of Senate Bill 775 as it applies to this case. The Attorney General concedes the statutory change requires that the order denying Tafich's petition be reversed, and the matter be remanded to the trial court. We agree with the parties on the effect of the new legislation. We accept the Attorney General's concession.
DISPOSITION
The order denying Tafich's petition for resentencing under section 1170.95 is reversed. The matter is remanded to the superior court with directions to issue an order to show cause and to conduct an evidentiary hearing as required by statute. We express no opinion regarding the appropriate outcome of such hearing.
WE CONCUR: McCONNELL, P. J. GUERRERO, J.