In re Courtney CA3

Filed 4/25/22 In re Courtney CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

In re DERRICK COURTNEY, C095212

On Habeas Corpus. (Super. Ct. No. 20HC00556)

BACKGROUND In 2005, a jury found petitioner Derrick Courtney guilty of first degree murder (Pen. Code, §§ 187, subd. (a), 189)1 with a finding that a principal was armed with a firearm in the commission of the offense (§ 12022.2, subd. (a)(1)). Later, after finding true a special circumstance allegation that defendant had a prior conviction for first degree murder (§ 190.2, subd. (a)(2)), the trial court sentenced petitioner to state prison for life without the possibility of parole plus an additional year for the section 12022.2 finding. (People v. Courtney (Jan. 4, 2008, C051548) [nonpub. opn.].)

1 Undesignated statutory references are to the Penal Code.

1

Petitioner’s jury was instructed that it could find him guilty of murder pursuant to the “natural and probable consequences doctrine” if it concluded he aided and abetted the target offense of assault with force likely to produce great bodily injury. In 2014, our Supreme Court decided People v. Chiu (2014) 59 Cal.4th 155 (Chiu), holding that a murder conviction premised on the natural and probable consequences doctrine was limited to second degree murder, even if the direct perpetrator is guilty of premeditated first degree murder. (Id. at p. 166.) In 2017, our Supreme Court determined that Chiu had retroactive effect. (In re Martinez (2017) 3 Cal.5th 1216, 1222.) In 2020, petitioner filed a petition for writ of habeas corpus challenging his 2005 first degree murder conviction in light of Chiu. The trial court denied that petition in January 2021, explaining that “[a]lthough petitioner [was] correct with respect to the instructions given to his jury,” he “[had to] seek relief from his conviction through a petition for resentencing under section 1170.95,” not via a habeas corpus petition. In February 2021, petitioner sought habeas corpus relief in this court, and a panel of this court denied his habeas corpus petition in March 2021. (In re Courtney (C093496, petn. den. Mar. 5, 2021).) Petitioner then sought habeas corpus relief in the California Supreme Court. In an informal response, the Attorney General argued the petition was untimely because petitioner “waited over six years before seeking habeas relief based on” Chiu. In November 2021, the Supreme Court issued an order to show cause before this court why petitioner is not entitled to relief based on a Chiu claim. (In re Courtney (S267763, petn.