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REVERSED: 1170.95 Denial; Right to be Present

California v. Basler Docket: D079033 (Fourth Appellate District), Opinion Date: June 21, 2022. After having his first-degree murder conviction reduced to second degree murder based on instructional error, defendant-appellant Matthew Basler filed a petition for resentencing under Penal Code section 1170.95. Following an evidentiary hearing at which Basler was not present, the trial court denied the petition, ruling: (1) Basler was ineligible for relief under section 1170.95 (a) because he was not convicted of felony murder or murder under a natural and probable consequences theory, but was convicted of first-degree premeditated murder; and (2) Basler could still be convicted of murder even after the changes made to sections 188 and 189 effective January 1, 2019. The court further found “as an independent factfinder” beyond a reasonable doubt that Basler committed first degree premeditated murder and that he harbored premeditated intent before killing the victim. On appeal, Basler contends the trial court erred by its ruling. The State conceded the trial court reversibly erred by failing to address the merits of Basler's petition as to his attempted murder conviction, and Senate Bill No. 775 required a remand for that determination. The Court of Appeal accepted that concession, and further concluded Basler had a constitutional right to be present at his section 1170.95 evidentiary hearing or competently waive his presence. The case was remanded for a new evidentiary hearing on Basler's murder conviction.

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