People v. Russell CA3

Filed 9/18/20 P. v. Russell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C090723

Plaintiff and Respondent, (Super. Ct. No. 05F00798)

v.

TITENESHA RUSSELL,

Defendant and Appellant.

Defendant Titenesha Russell appeals the trial court’s denial of her petition for resentencing under Penal Code section 1170.95,1 arguing the trial court failed to follow the proper procedure before denying her petition, including permitting her counsel to file a brief. In a prior decision, we concluded the jury found defendant had the intent to kill, rendering her ineligible for relief under section 1170.95. We therefore affirm. BACKGROUND We summarized the relevant facts of this case in defendant’s prior appeal (People v. Curry (2007) 158 Cal.App.4th 766 (Curry)): “The four defendants, Tashara Boone,

1 Undesignated statutory references are to the Penal Code.

1

Terry Buford, Dwayne Michael Curry and [defendant] beat, robbed and kidnapped Buford’s ex-girlfriend L.R. who was seven months pregnant with Buford’s child. They were charged with six felonies: count one—attempted premeditated murder of ‘Baby Doe,’ a seven-month-old fetus ([ ]§§ 664, 187) with the special allegation that Boone, Curry and [defendant] personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)); count two—assault with a deadly weapon by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)) with the special allegation that Boone, Curry and [defendant] inflicted the injuries when they knew or should have known that the victim was pregnant and that the injuries terminated the pregnancy ([former] § 12022.9, subd. (a)); count three—second degree robbery (§ 211); count four—kidnapping to commit robbery or ‘aggravated kidnapping’ (§ 209, subd. (b)(1)); count five—attempted robbery (§§ 664, 211); and count six—conspiracy to murder a human fetus (§§ 182, subd. (a)(1), 187, subd. (a)).” (Curry, supra, at pp. 771-772.) “The jury convicted the three defendants on all counts, except it found [defendant] not guilty of robbery and Curry not guilty of conspiracy. It found true all the special allegations except the allegation that Curry acted with premeditation in attempting to murder the fetus.” (Curry, supra, 158 Cal.App.4th at p. 772.) The court sentenced defendant “to life in prison for aggravated kidnapping and a consecutive term of 25 years to life for conspiracy to commit murder. It stayed sentence on the remaining counts pursuant to section 654.” (Ibid.) Defendant appealed, challenging, among other issues, the given voluntary intoxication jury instruction. (Curry, supra, 158 Cal.App.4th at pp. 784-785.) The instruction stated the jury could “ ‘not consider evidence of intoxication in deciding whether attempted murder is a natural and probable consequence of felony assault.’ ” (Id. at p. 785.) Defendant argued it was unfair that the intoxication defense was unavailable to her when she did not know the perpetrators intended to kill. (Id. at p. 786.)