People v. King CA3

Filed 6/28/21 P. v. King CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091351

Plaintiff and Respondent, (Super. Ct. No. 03F07198)

v.

RALPH E. KING,

Defendant and Appellant.

In 2005, a jury found defendant Ralph E. King guilty of second degree murder and attempted murder. The trial court sentenced him to 24 years to life in state prison. We affirmed the judgment in defendant’s previous appeal from his underlying convictions. (People v. King et al. (Oct. 19, 2006, C050300) [nonpub. opn.] (King).) While defendant was serving his sentence, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch. 1015, §§ 1-4), which amended the law governing murder liability under felony murder and natural and probable consequences theories, and provided a new procedure under Penal Code section 1170.951 for eligible defendants to petition for recall and resentencing.

1 Undesignated statutory references are to the Penal Code.

1

Defendant filed a section 1170.95 petition, but the trial court denied it after reviewing the parties’ pleadings, our prior unpublished opinion, the court’s file, and the transcript of defendant’s trial. In its written decision, the trial court found there was sufficient evidence from which the jury could have found defendant guilty of murder as a direct aider and abettor (i.e., with malice). Defendant appeals, arguing that because the jury also could have found him guilty on an alternate theory of murder not requiring malice, the trial court should have issued an order to show cause and held an evidentiary hearing. The People concede the error and agree the matter should be remanded for a hearing pursuant to section 1170.95, subdivision (d). We agree with the parties and will reverse and remand for further proceedings. BACKGROUND A. Defendant’s convictions In 2005, a jury found defendant guilty of second degree murder, attempted murder, and unlawful possession of a firearm. The jury also found true two firearm allegations. The trial court subsequently sentenced defendant to a life term on the murder conviction. (King, supra, C050300.) B. The appeal On appeal from the judgment, defendant argued there was insufficient evidence to support his conviction for murder. (King, supra, C050300.) As noted in our opinion, at trial “[t]he prosecutor argued the jury could find [defendant] guilty on both counts as an aider and abettor, either because he shared [the shooter’s] intent to kill [the first victim] (and, by transferred intent, [the second victim]) or to shoot at him with conscious disregard for human life, or because he shared [the shooter’s] intent to shoot into the [car] to scare or send a message to [the first victim], or because he conspired with [the shooter and another] to have [the shooter] discharge a firearm at an occupied motor vehicle or with gross negligence.” (King, supra, C050300.)