People v. Armstrong CA3

Filed 12/17/24 P. v. Armstrong CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C100292

Plaintiff and Respondent, (Super. Ct. No. 09F05757)

v.

MICHAEL LEE ARMSTRONG,

Defendant and Appellant.

Defendant Michael Lee Armstrong appeals from the trial court’s denial of his Penal Code section 1172.6 resentencing petition.1 He contends that the court failed to realize it had discretion to grant him the alternative relief requested in his briefs and at the section 1172.6 hearing. Finding no merit to this contention, we affirm.

1 Undesignated statutory references are to the Penal Code.

1

I. BACKGROUND In 2011, a jury found defendant guilty of two counts of second degree murder (Pen. Code, § 187, subd. (a)) and found true as to each count that defendant personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). Following a remand from this court due to sentencing error, the trial court sentenced defendant to 80 years to life imprisonment. In 2023, defendant petitioned for resentencing pursuant to section 1172.6, asserting he could no longer be convicted of murder due to legislative changes to murder liability. The People opposed the petition, arguing defendant was ineligible for relief because the jury had not been instructed on a now invalid theory of murder. In reply, defendant stated, “If the court disagrees that there is relief under section 1172[.6], the defense requests the court to either [reduce] the gun enhancements to lesser charges or stay them.” The reply brief discussed how recently enacted Senate Bill No. 620 (2017- 2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2), which amended section 12022.53, and Senate Bill No. 81 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1), which amended section 1385, would permit such relief. The trial court issued a tentative order denying the section 1172.6 petition, “[b]ecause the jury was not instructed on a now invalid theory of murder.” At the prima facie hearing on January 19, 2024, defense counsel said, “I wanted to make sure I clarified that I was also asking for 1385 relief as well as the 1172. As long as we have Mr. Armstrong up here for this hearing, it seemed appropriate to, under the new laws, consider whether or not he should be resentenced, not just under the 13 -- the 1172 provisions but also under the fact that the sentencing laws have changed greatly.” The prosecution responded that “[p]rocedurally, 1172.6 is not the mechanism to address the substantive matter of the defense’s claim for SB 81 and SB 620 relief.” The court ruled that “the 1172.6 petition is denied as without merit for the reasons that I indicated in my tentative ruling. [¶] As to the relief pursuant to SB 81 and SB 620, I’m very familiar