People v. Jackson CA1/4

Filed 9/28/22 P. v. Jackson CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A161383 v. GREGORY JACKSON, (Alameda County Super. Ct. No. 62885) Defendant and Appellant.

Defendant Gregory Jackson appeals from the denial of his petition to vacate his convictions for first degree murder and for resentencing. We find no error and affirm. Background On March 16, 1977, a jury found defendant guilty of two counts of first degree murder and one count of first degree burglary. Defendant was sentenced to two terms of life in prison, with the sentence stayed on the burglary count. His convictions and sentence were affirmed by this court. (People v. Jackson (May 10, 1978, 1 Crim. No. 16903) [nonpub. opn.].) In 2018, Senate Bill No. 1437 was enacted to “amend the felony murder rule . . . to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1(f).) Senate Bill No. 1437 amended

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Penal Code section 1881 to require that a principal act with express or implied malice (§ 188, as amended by Stats. 2018, ch. 1015, § 2), and amended section 189 to state that a person can be liable for felony murder only if the person (1) “was the actual killer”; (2) with an intent to kill, was an aider or abettor in the commission of murder in the first degree; or (3) “was a major participant in the underlying felony and acted with reckless indifference to human life . . . .” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3.) Senate Bill No. 1437 also added a provision authorizing a petition to have a felony murder conviction vacated and to be resentenced on any remaining counts if the petitioner could not presently be convicted of murder under the changes to section 188 or 189. (Former § 1170.95, subd. (a).)2 On January 7, 2019, defendant filed a petition seeking to vacate his murder convictions and for resentencing. His petition alleges that he was convicted of two counts of first degree felony murder, was not the actual killer, did not act with an intent to kill, was not a major participant in the felony, and did not act with reckless indifference to human life during the commission of the crimes. The superior court appointed counsel and set a briefing schedule. The prosecution opposed the petition, arguing that defendant was a major participant in the burglary during which two persons were murdered and that he acted with reckless indifference to human life during the commission of the crimes. In addition to defendant’s signed written