People v. Simms CA3

Filed 3/10/22 P. v. Simms CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092723

Plaintiff and Respondent, (Super. Ct. No. 93F04222)

v.

LAMAR DESHON SIMMS,

Defendant and Appellant.

In 1993, a jury found defendant Lamar Deshon Simms guilty of second degree murder and assault with a deadly weapon. Defendant appeals the denial of this petition for resentencing pursuant to Penal Code section 1170.95.1 He contends the trial court erred by summarily denying his petition without issuing an order to show cause and the court erred in relying on this court’s prior opinion to conclude defendant was ineligible for relief under section 1170.95 at the prima facie stage. The Attorney General concedes the error. We reverse and direct the trial court to issue an order to show cause under section 1170.95, subdivision (c).

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND I. Statement of Facts We take the facts from our prior opinion. (People v. Simms (Feb. 9, 1996, C017594) [nonpub. opn.] (Simms).) Defendant and codefendant Damian Mitchell were convicted of the murder of Ruben Johns. Johns and defendant were involved in an ongoing dispute. As the dispute continued, defendant paged codefendant Mitchell and entered the codes “911” and “187,” for emergency and murder respectively. Defendant took a 12-gauge shotgun from the trunk of his car and waited for Mitchell to arrive. He pumped and primed the weapon making sure it was loaded. When Mitchell arrived, he asked, “ ‘who’s [Johns]?’ ” Defendant and Johns began arguing again, and that arguing escalated into a physical altercation. Johns stabbed defendant in the chest and defendant dropped the shotgun. Mitchell picked up the shotgun and pointed it at Johns. As Johns backed away with his hands up, defendant told Johns to “ ‘kiss his momma good-bye.’ ” Mitchell fired once, striking Johns in the upper chest and neck. Johns died at the scene. Defendants claimed the shooting was in self-defense. Defendant claimed he only brought the weapon to the fight because he heard Johns was seen passing a gun around. When defendant saw Johns was unarmed, he asserted he threw the gun aside and then Johns stabbed him. Defendant testified he did not tell Johns to “ ‘kiss his momma good- bye.’ ” Mitchell testified he only fired the weapon because Johns “ ‘flinched’ ” at him with the knife. Mitchell denied aiming at Johns and claimed he did not mean to shoot him. The jury found defendant guilty of second degree murder (§ 187) and assault with a deadly weapon (§ 245, subd. (a)(2)). It found true the allegation defendant was a principal in the murder and one or more principals were armed with a firearm. (§ 12022, subd. (a).) It also found true the allegation defendant personally used a firearm in the assault with the deadly weapon. (§ 12022.5, subd. (a).) The trial court sentenced