People v. Smith CA3

Filed 2/24/21 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) ----

THE PEOPLE, C090166

Plaintiff and Respondent, (Super. Ct. No. CRF19987353) v.

KENNETH DESHAUN SMITH,

Defendant and Appellant.

Defendant Kenneth Deshaun Smith appeals the trial court’s order denying his petition for resentencing pursuant to Penal Code section 1170.95, arguing the trial court had no jurisdiction over the petition.1 Disagreeing, we affirm. I. BACKGROUND Because the underlying facts of defendant’s crime of conviction are immaterial to defendant’s arguments on appeal, it suffices to say that a 1999 Yolo County information

1 Further undesignated statutory references are to the Penal Code.

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charged defendant with malice aforethought murder, and a jury found defendant guilty of second degree murder (§ 187, subd. (a)) in 2000. The trial court sentenced defendant to 15 years to life. “In 2018, the Legislature passed and the Governor signed into law Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437), which restricted the circumstances under which a person can be liable for felony murder and abrogated the natural and probable consequences doctrine as applied to murder. [Citation.] [The law added section 1170.95,] . . . a procedure permitting qualified persons with murder convictions to petition to vacate their convictions and obtain resentencing if they were previously convicted of felony murder or murder under the natural and probable consequences doctrine.” (People v. Flores (2020) 44 Cal.App.5th 985, 989.) The law became effective January 1, 2019. (Id. at p. 991.) “Senate Bill No. 1437 amended section 188 (concerning the degrees of murder) and section 189 (concerning the definition of malice for purposes of murder). [Citation.] As amended, section 188 provides as follows: ‘Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.’ ” (People v. Flores, supra, 44 Cal.App.5th at p. 991.) Relief is unavailable to a person who was “the actual killer.” (See People v. Perez (2020) 54 Cal.App.5th 896, 902, review granted Dec. 9, 2020, S265254.) On January 9, 2019, while serving his sentence for murder, defendant filed in Yolo County Superior Court a pleading on a form approved by the Judicial Council of California for habeas corpus petitions, and invoked “section 1170(d)” in the caption of the form. In the body of the pleading, defendant asserted his “petition concern[ed]” a “petition for re-sentencing pursuant to P.C. 1170(d).” Later in the pleading, defendant argued that “new” provisions in the Penal Code “require . . . malice aforethought . . . to be convicted of murder” and that “just because a