People v. Strong CA3

Filed 11/1/22 P. v. Strong CA3 Opinion on remand from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091162

Plaintiff and Respondent, (Super. Ct. No. 11F06729)

v. OPINION ON REMAND CHRISTOPHER STRONG,

Defendant and Appellant.

Defendant Christopher Strong appeals from the trial court’s order dismissing his petition for resentencing brought pursuant to Penal Code section 1172.61 (formerly section 1170.95).2 Defendant argues the trial court erred when it determined that his convictions for first degree murder with robbery, burglary, and multiple-murder special circumstances precluded his eligibility for relief.

1 Undesignated statutory references are to the Penal Code. 2 Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We will refer to the section by its new numbering.

1

On December 18, 2020, we affirmed the trial court’s order. (People v. Strong (Dec. 18, 2020, C091162) [nonpub. opn.].) On July 26, 2021, our Supreme Court reversed and remanded the matter to this court for further proceedings. (People v. Strong (2022) 13 Cal.5th 698, 721 (Strong).) Consistent with that decision, we will reverse the order denying the petition and remand the matter to the trial court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Defendant’s Convictions In 2014 a jury found defendant guilty of two counts of first degree murder (§ 187) and found true three special circumstance allegations of robbery murder (§ 190.2, subd. (a)(17)), burglary murder (§ 190.2, subd. (a)(17)), and multiple murder (§ 190.2, sub. (a)(3)). In its charge to the jury at the conclusion of the parties’ presentations, the trial court included CALCRIM No. 703 (Special Circumstances: Intent Requirement for Accomplice After June 5, 1990—Felony Murder (Pen. Code, § 190.2(d))), which told the jury that if it found defendant was not the actual killer, in order to prove the special circumstances true: “[T]the People must prove either that the defendant intended to kill, or the People must prove all of the following: “1. The defendant’s participation in the crime began before or during the killing; “2. The defendant was a major participant in the crime; “AND “3. When the defendant participated in the crime, he/she acted with reckless indifference to human life.”3 The convictions resulted from an attempted home invasion robbery of a drug dealer by defendant and his codefendant, Donald Ortez-Lucero. During the robbery,