People v. Howard CA3

Filed 4/29/25 P. v. Howard CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C099999

Plaintiff and Respondent, (Super. Ct. No. 05F01330)

v.

GERALD HOWARD,

Defendant and Appellant.

Defendant Gerald Howard appeals from a postconviction order denying his resentencing petition under Penal Code section 1172.6.1 He claims the court erred in denying his petition at the prima facie stage. The People argue defendant is ineligible for resentencing as a matter of law because the record of conviction establishes he was not convicted under a felony murder or a natural and probable consequences theory. We agree and affirm.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND We take the facts from our original decision affirming defendant’s conviction. (People v. Howard (Jan. 8, 2010, C059281) [nonpub. opn.].)2 In 2005, defendant and a codefendant lured victim Donte Rogers to a park. (Ibid.) Defendant and the victim arrived at the park in a car. (Ibid.) Defendant left the car and went to a nearby building to make a phone call. (Ibid.) Defendant returned to the car and asked the victim to get out of the car. (Ibid.) The victim complied and they both walked behind the building. (Ibid.) Shortly after, the victim was shot in the head and abdomen, and the pockets of the victim’s pants were emptied. (Ibid.) After the shooting, defendant returned to the car with the codefendant. (Ibid.) Defendant and the codefendant were tried together. An amended information charged defendant with first degree murder (§ 187, subd. (a)) and robbery (§ 211). As to the murder count, the amended information alleged the special circumstances that defendant committed the murder while engaged in robbery (§ 190.2, subd. (a)(17)) and that defendant intentionally killed the victim while lying in wait (§ 190.2, subd. (a)(15)). As to both counts, it was further alleged that defendant was armed with a firearm during the commission of the crimes (§ 12022, subd. (a)(1)). The court instructed the jury on two theories of murder, malice aforethought and felony murder. (CALCRIM No. 548.) The court’s felony-murder instruction was as follows: “The defendant is charged in Count One with murder, under a theory of felony murder. [¶] To prove that the defendant is guilty of first degree murder under this theory, the People must prove that: