People v. Courtney CA3

Filed 10/12/21 P. v. Courtney CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091706

Plaintiff and Respondent, (Super. Ct. No. 02F00882)

v.

DERRICK COURTNEY,

Defendant and Appellant.

Defendant Derrick Courtney appeals from the trial court’s order denying his petition for resentencing under Penal Code section 1170.95.1 Defendant argues the trial court erred when it determined he was ineligible for resentencing as a matter of law based on the jury’s robbery-murder special circumstance finding. We will affirm the trial court’s order.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND In 2004, a jury found defendant guilty of first degree murder (§ 187, subd. (a)), robbery while acting in concert (§§ 211, 213, subd. (a)(1)(A)), and possession of a firearm by a felon (former § 12021, subd. (a)(1)). The jury also found true allegations that defendant personally used a firearm as to the murder and robbery counts (§§ 12022.5, subd. (a), 12022.53, subd. (b)) and a robbery-murder special circumstance as to the murder count (§ 190.2, subd. (a)(17)). On appeal, we affirmed the convictions and corrected an error in the fines imposed. (People v. Courtney (Sept. 28, 2006, C047770) [nonpub. opn.].)2 Our opinion laid out the evidence introduced at trial. In short, defendant and codefendant Melvin Peete robbed the victim at his home. As they left the home in the victim’s car, Peete shot the victim, who died shortly thereafter. On January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.), which was enacted to “amend the felony murder rule and the natural and probable consequences doctrine, . . . to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life,” became effective. (Stats. 2018, ch. 1015, § 1, subd. (f).) Senate Bill No. 1437 achieved these goals by amending section 188 to require that a principal act with express or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state that a person can be liable for felony murder only if (1) “[t]he person was the actual killer”; (2) the person, with an intent to kill, was an aider or abettor “in the commission of murder in the first degree”; or (3) “[t]he person was a major participant in the underlying