People v. Carrera CA3

Filed 11/15/22 P. v. Carrera CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C091533

Plaintiff and Respondent, (Super. Ct. No. 06F00314)

v. OPINION ON TRANSFER

DAVID CARRERA,

Defendant and Appellant.

Petitioner David Carrera appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1172.6.1 Petitioner argues the trial court erred by determining he was ineligible for resentencing as a matter of law based on the jury’s felony-murder special-circumstance finding. In an unpublished opinion, we affirmed that

1 Further undesignated statutory references are to the Penal Code. Effective June 30, 2022, former section 1170.95 was recodified without substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) We will refer to section 1172.6 throughout this opinion.

1

decision, holding the special-circumstance finding against petitioner rendered him ineligible for relief as a matter of law. (People v. Carrera (July 28, 2021, C091533) [nonpub. opn.].) On October 19, 2022, the California Supreme Court transferred the matter back to us with directions to vacate our opinion and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). On October 24, 2022, we ordered our opinion vacated and set a briefing schedule. Relying on Strong, petitioner argues the jury’s true finding on the felony-murder special-circumstance allegation rendered prior to the opinions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 does not render him ineligible for relief under section 1172.6. Petitioner also contends the trial record demonstrates he was not a major participant who acted with reckless indifference to life in the underlying felony. He asks this court to vacate his murder conviction accordingly. The People concede the special-circumstance finding does not preclude relief under section 1172.6, but argue the matter should be remanded to allow the court to issue an order to show cause and conduct an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3). Having reconsidered the matter, we agree; we will reverse and remand the matter accordingly. FACTUAL AND PROCEDURAL BACKGROUND Petitioner filed a petition to vacate his first degree murder conviction under section 1172.6. The declaration attached to his petition provided the information “filed against [him] . . . allowed the prosecution to proceed under a theory of felony murder . . . .” Petitioner also declared that following a trial, “[he] was convicted of [first] degree felony murder . . . .” Following the amendments made to sections 188 and 189, he “could not now be convicted because . . . [¶] [he] was not the actual killer. “[He] did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree.