People v. Webb CA3

Filed 11/2/22 P. v. Webb CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C089453

Plaintiff and Respondent, (Super. Ct. No. STK-CR- CNV-1998-16793) v. OPINION ON TRANSFER ANTHONY LAMONT WEBB,

Defendant and Appellant.

Defendant Anthony Lamont Webb appeals from the trial court’s order denying his pro per petition for resentencing brought pursuant to former Penal Code section 1170.95.1

1 Further undesignated statutory references are to the Penal Code.

Defendant filed the petition in 2019. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. For purposes of clarity and conformity with the petition, we will continue to refer to the statute as former section 1170.95 throughout the opinion.

1

Defendant argues the trial court erred in relying on a special circumstance finding to conclude no prima facie showing had been made. We disagreed in our original opinion filed December 16, 2020, and affirmed the order. Defendant petitioned our Supreme Court for review; that court has now directed us to reconsider the matter in light of People v. Strong (2022) 13 Cal.5th 698 and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Having done so, we agree with the parties that the trial court’s order denying the petition must be reversed and the matter remanded for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL BACKGROUND Defendant’s Convictions In 1999, defendant and his codefendant were found guilty by jury of three counts of first degree murder (§ 187) and two counts of robbery (§ 211). The jury also found true the special allegations that defendant had personally used a firearm in one of those murders and in one robbery (§ 12022.5, subd. (a)), had been armed with a firearm during another murder and robbery (§ 12022, subd. (a)), that two of the murders were multiple murders (§ 190.2, subd. (a)(3)), and that all three murders were committed during the course of a robbery (§ 190.2, subd. (a)(17)). (People v. Thompson (April 3, 2002, C034507) [nonpub. opn.].) Within its charge to the jury at the conclusion of the parties’ presentations, the trial court included CALJIC No. 8.80.1 regarding the special circumstance allegations, which included the requirement that in order to find the section 190.2, subdivision (a)(17)(A) allegations true, if defendant was not the actual killer, the jury would have to find that defendant “with the intent to kill aided, abetted, counseled, commanded, induced, solicited, requested, or assisted any actor in the commission of the murder in the first degree or with reckless indifference to human life and as a major participant, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted in the commission” of the robberies.