People v. Pierce CA3

Filed 2/1/22 P. v. Pierce CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093003

Plaintiff and Respondent, (Super. Ct. No. 06F04599 )

v.

JAYSHAWN VISA PIERCE,

Defendant and Appellant.

Defendant Jayshawn Visa Pierce appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.95. 1 Defendant argues the trial court erred by declining to issue an order to show cause because the court looked beyond his declaration to the record of conviction in determining that he did not meet the prima facie requirements of section 1170.95. In a related argument, defendant contends the trial

1 Undesignated statutory references are to the Penal Code.

1

court erred by determining he was ineligible for resentencing as a matter of law based on the jury’s special circumstance finding. Because defendant’s arguments are related, we address them together. We will affirm. FACTUAL AND PROCEDURAL BACKGROUND A jury found defendant guilty of the first degree murder (§§ 187, 189) and two counts of attempted robbery (§§ 211, 664) of the murder victim and another victim. (People v. Pierce (May 18, 2010, C060588) [nonpub. opn.] at pp. 1-2 (Pierce).) 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).) The jury found not true the allegation that defendant had intentionally and personally used a firearm in the commission of the murder. (§ 12022.53, subd. (d).) Defendant was sentenced to life without the possibility of parole plus two years eight months. Following a direct appeal, this court modified the judgment to correct sentencing errors and affirmed the judgment as modified in May 2010. (Pierce, C060588, at p. 10.) In our opinion on direct appeal, we summarized the incident resulting in these convictions as follows: Defendant and his codefendants were looking for someone to rob so they could pay bail money for a friend. They waited outside a nightclub for a target to come out and followed the victims, a couple, in their car. Defendant got out of the car with the shotgun, pointing it “at [Kevin] Wilson and [Anna] Vasquez. Defendant said, ‘Give me your shit[,]’ or something to that effect. Wilson and Vasquez had their hands up. Vasquez had a purse. They both said, ‘Take it.’ Wilson responded that they did not want any trouble. [¶] Defendant then shot Wilson between the eyes, killing him instantly.” (Pierce, supra, C060588, at pp. 1-5.) On May 22, 2019, defendant filed a petition in the trial court to vacate his first degree murder conviction under section 1170.95. The petition asserted a “complaint,