People v. Thompson CA3

Filed 12/16/20 P. v. Thompson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C090225

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-CNV-1998-0016794, v. SP062695C)

BERTRAND THOMPSON,

Defendant and Appellant.

In 1999, a jury found defendant Bertrand Thompson guilty of three murders occurring during two robberies, and they also found true robbery-murder special circumstances for each of the murders. Defendant recently petitioned the trial court for resentencing under Penal Code section 1170.951 based on changes made to the felony- murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). The trial

1 Undesignated statutory references are to the Penal Code.

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court denied defendant’s petition, finding that the record established defendant was ineligible for resentencing because he was the actual killer in two of the murders and the jury found true special circumstances for the third murder. On appeal, defendant argues he was entitled to counsel and a hearing on the merits of his petition. We will affirm. FACTUAL AND PROCEDURAL BACKGROUND Defendant was involved in the murder of three people during two separate robberies. (People v. Webb et al. (Apr. 3, 2002, C034507) [nonpub. opn.] (Webb).)2 In 1999, the jury found defendant guilty of three counts of first degree murder (§ 187) and two counts of second degree robbery (§ 211). They also found true special circumstance allegations that defendant was armed in the commission of one of the murders and one of the robberies (§ 12022, subd. (a)), that he personally used a firearm in the commission of another murder and the other robbery (§ 12022.5, subd. (a)), two of the murders were multiple murders (§ 190.2, subd. (a)(3)), and the special circumstances that all three murders were committed during robberies (§ 190.2, subd. (a)(17)(A)). (Webb, supra, C034507, at pp. 1-2.) Defendant “was sentenced to a determinate term of eight years and three consecutive indeterminate terms of life without the possibility of parole.” (Webb, supra, C034507, at p. 2.) Defendant appealed his conviction, arguing (1) instructional error on the robbery counts, (2) ineffective assistance of counsel, and (3) the robbery counts should have been stayed under section 654. (Webb, supra, C034507, at p. 2.) We stayed the sentences imposed for the robbery convictions but otherwise affirmed. (Webb, supra, C034507, at p. 28.) In January 2019, defendant filed a petition for resentencing under section 1170.95. Defendant declared in his petition that the prosecution proceeded “under a theory of