People v. Smyer CA2/8

Filed 7/30/24 P. v. Smyer CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE OF THE STATE B328617 OF CALIFORNIA, (Los Angeles County Plaintiff and Respondent, Super. Ct. No. SA079068)

v.

DEREK PAUL SMYER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed. William L. Heyman, under appointment by the Court of Appeal, for Plaintiff and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Zee Rodriguez, Supervising Deputy Attorney General, and John Yang, Deputy Attorney General, for Plaintiff and Respondent. ____________________

Derek Paul Smyer is serving life in prison without the possibility of parole because of murders he arranged when he was 20 years old. Smyer petitioned the trial court to allow him to proceed under a statute that offers youth offenders relief from long prison terms. But the statute excludes those who offended after the age of 18 and whose sentence is life without the possibility of parole. (See Pen. Code, § 3051, subd. (h).) Smyer acknowledged this statutory bar but argued it is unconstitutional. The trial court correctly rejected this constitutional argument. In 2001, when he was 20, Smyer solicited a shooter to kill Crystal T. and the fetus she was carrying. (People v. Smyer (Apr. 4, 2019, B283604) [nonpub. opn.].) Smyer’s relationship with Crystal T. lasted one month. She said she was pregnant and wanted to keep the baby. She refused Smyer’s demand that she get an abortion. “[A] search of Smyer’s computer revealed he looked at a chat room regarding pregnancy with the statement, ‘I just got some slut pregnant. Now bitch wants my money. What should I do?’ ” (Id. at p. 7.) Smyer contacted the shooter, who was trying to recruit Smyer into his gang “because he needed a person loyal to him to help sell narcotics at Anderson Park.” (Id. at p. 8.) The shooter waited in the shadows of the carport. When Crystal T. came down the stairs, he shot her in the back of the head, killing her and her fetus. (Id. at p. 9.) The jury convicted Smyer of the second degree murder of Crystal, of the first degree murder of the fetus, and of solicitation of murder. The jury found true the multiple-murder and financial gain special circumstance allegations. (Id. at p. 20.) The court sentenced Smyer to life imprisonment without the possibility of parole plus 15 years to life plus 2 years. (Ibid.) We affirmed the sentence of life