People v. Ellis CA3

Filed 12/13/21 P. v. Ellis CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092613

Plaintiff and Respondent, (Super. Ct. No. 05F03831)

v.

GERALD ELLIS,

Defendant and Appellant.

Defendant Gerald Ellis challenges the trial court’s denial of his petition for resentencing under Penal Code section 1170.95 (unspecified statutory section citations that follow are to the Penal Code) based on changes made to the felony-murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). Defendant contends the trial court erred in relying on the jury’s special circumstance finding to deny his petition. We affirm the judgment.

FACTS AND HISTORY OF THE PROCEEDINGS

Defendant participated in a home invasion robbery with three others. (People v. Ellis (Mar. 5, 2008, C054797) [nonpub. opn.] (Ellis).) On our own motion, we take

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judicial notice of this prior decision. (Evid. Code, § 452, subd. (d).) During the robbery, one of the assailants shot and killed Donald Willis. (Ellis, at p. 3.) The jury convicted defendant of first degree robbery in concert and first degree murder, and found the murder occurred during the commission of a robbery (Pen. Code, § 190.2, subd. (d)). He was sentenced to life without the possibility of parole. (Ellis, at p. 1.)

Defendant appealed, arguing there was insufficient evidence to support the robbery-murder special circumstance. (Ellis, supra, C054797 at p. 1.) We affirmed, finding there was substantial evidence defendant both acted with reckless disregard for human life and was a major participant in the robbery. (Id. at pp. 11, 12.) On February 13, 2019, defendant filed a form petition for resentencing pursuant to section 1170.95. On the form, he checked various boxes stating that a complaint 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, that at trial he was convicted of first or second degree murder pursuant to the felony-murder rule or the natural and probable consequences doctrine, and that he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. Defendant also checked the boxes stating that he was not the actual killer, did not aid or abet with the intent to kill, and was not a major participant in the felony or acted with reckless indifference to human life. The prosecutor filed a response and motion to dismiss and defense counsel filed an opposition. On July 23, 2020, the trial court filed a written order denying the petition. The trial court provided two reasons, first that: “In finding the robbery-murder special circumstance true, the jury necessarily found that [defendant] either was the actual killer, acted with intent to kill, or was a major participant in the robbery who acted with reckless indifference to human life. And, on appeal, the Third District Court of Appeal held that the evidence was sufficient to show that [defendant] had been a major participant in the