People v. Sam CA3

Filed 9/15/22 P. v. Sam CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094900

Plaintiff and Respondent, (Super. Ct. No. 09F09113)

v.

DERRICK SAM,

Defendant and Appellant.

In 2013, defendant Derrick Sam was ordered to serve a life sentence after a jury found him guilty of murder and other offenses based on his participation in a robbery. The jury found true a felony-murder special circumstance allegation (a murder during a robbery). After defendant’s conviction, our Supreme Court issued two decisions providing substantial guidance on factors that must be considered by a jury in felony-murder special circumstance sentencing enhancements. (People v. Banks (2015) 61 Cal.4th 788 (Banks);

1

People v. Clark (2016) 63 Cal.4th 522 (Clark).) Specifically, Banks clarified the factors that need to be considered in determining whether a defendant was a “major participant” in the underlying felony.” (Banks, supra, at pp. 797-804.) In Clark, the court clarified the factors that must be considered in determining whether a defendant acted with “reckless indifference to human life. (Clark, supra, at pp. 611-623.) In 2019, defendant filed a petition seeking to vacate his murder conviction and to be resentenced under former Penal Code section 1170.95.1, 2 The trial court summarily denied defendant’s petition, reasoning that the felony-murder special circumstance finding rendered defendant ineligible for relief under former section 1170.95 as a matter of law. While defendant’s appeal was pending, our Supreme Court held that a pre- Banks/Clark felony-murder special circumstance finding does not render a former section 1170.95 petitioner ineligible for relief as a matter of law. (People v. Strong (2022) 13 Cal.5th 698 (Strong).) Based on Strong, we must vacate the trial court’s order and remand the matter for further proceedings not inconsistent with Strong. I. BACKGROUND A. Defendant’s case Given the nature of the instant appeal, a detailed recitation of the facts underlying defendant’s convictions is unnecessary. In sum, defendant and two compatriots lured the victim to the home of one of the compatriots under the pretext of a marijuana transaction, tied him up, and beat him. They then drove the victim’s car to his home, tied up the