People v. Bludworth CA3

Filed 10/5/21 P. v. Bludworth CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091249

Plaintiff and Respondent, (Super. Ct. No. STKCRCNV19980016792) v.

TIMOTHY LEE BLUDWORTH,

Defendant and Appellant.

Defendant Timothy Lee Bludworth appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.95.1 Defendant argues the superior court erred by declining to issue an order to show cause because the court looked beyond his declaration to the jury’s felony-murder special circumstance finding in determining that he did not meet the prima facie requirements of section 1170.95. In a

1 Undesignated statutory references are to the Penal Code.

1

related argument, defendant contends the superior court erred by determining he was ineligible for resentencing as a matter of law based on the jury’s special circumstance finding. Finally, he argues that if we deem either of these claims forfeited, he received ineffective assistance of counsel. Because defendant’s first two arguments are related, we address them together. We need not reach defendant’s ineffective assistance argument because we address his substantive claims on the merits. We will affirm. FACTUAL AND PROCEDURAL BACKGROUND A jury found defendant guilty of the first degree murder (§§ 187, 189) and robbery (§ 211) of the victim. (People v. Bludworth (Oct. 31, 2001, C032613) [nonpub. opn.] (Bludworth).) As to the murder count, the jury found true the special circumstance allegation that the murder was committed during the commission or attempted commission of robbery. (§ 190.2, subd. (a)(17)(A).) The jury also found true the allegation that a principal was armed with a firearm in the commission of the felonies. (§ 12022, subd. (a).) Following a direct appeal, this court affirmed the judgment in October 2001. (Bludworth, C032613.) On January 17, 2019, defendant filed a petition in the superior court to vacate his first degree murder conviction under section 1170.95. The declaration attached to his petition provided he was charged with “first degree murder, armed with a firearm.” Further, the petition asserted a “complaint, information, or indictment was filed against [him] that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.” Defendant also declared that “[a]t trial, [he] was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine.” He declared that following the amendments made to sections 188 and 189, he could not now be convicted of first degree murder. He declared he was not the actual killer and he “did not, with intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the