People v. Hall CA3

Filed 12/28/21 P. v. Hall CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092890

Plaintiff and Respondent, (Super. Ct. No. 06F07163)

v.

TOMMIE HALL,

Defendant and Appellant.

Defendant Tommie Hall appeals from the trial court’s order denying his petition for resentencing under Penal Code 1 section 1170.95. Defendant contends the trial court erred because it considered the record of conviction when assessing whether defendant had made a prima facie showing he was entitled to relief. We affirm. BACKGROUND In 2009, a jury found defendant guilty of second degree murder. The jury also found true allegations defendant was armed with a firearm and that the murder was

1 Undesignated statutory references are to the Penal Code.

1

committed by shooting a firearm from a motor vehicle with intent to inflict great bodily injury, but found not true an allegation the murder was committed by shooting a firearm from a motor vehicle at a person outside the vehicle with intent to inflict death. Defendant appealed and we summarized the facts of the case. (People v. Stirgus et al. (July 20, 2011, C064078) [nonpub. opn.].) In short, defendant and his codefendant, Deontae Sultan Stirgus, shot and killed the victim in a drive-by shooting. We affirmed the convictions. In 2019, defendant filed a petition to vacate his conviction under section 1170.95. The petition included a declaration indicating that a complaint was filed against defendant that allowed the prosecution to proceed under a theory of murder under felony murder or the natural and probable consequences doctrine, that at trial he was convicted of second degree murder under the felony murder rule or the natural and probable consequences doctrine, and that he could not now be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019. The court appointed counsel and ordered briefing on several issues, and the parties submitted briefing accordingly. Defendant’s reply brief attached several documents from defendant’s case, including the direct appeal opinion, jury verdict forms, the amended information, and legislative history documents, and noted that “[a]t this stage, the court may rely on the record of conviction in adjudging the prima facie case presented by the petitioner.” The trial court issued a written order denying the petition. The trial court stated it had reviewed “all pleadings, the Appeals Court opinion, and trial record, to include jury instructions, relevant to the issue whether defendant Hall is ineligible for relief under [section] 1170.95.” The court explained that at defendant’s trial, “[t]he jury had been instructed with CALCRIM No. 401, on direct aiding and abetting; no jury instruction was given on the natural and probable consequences doctrine of aiding and abetting or conspiracy. The jury was also instructed with CALCRIM Nos. 520 and 521 on the