People v. Powell CA3

Filed 11/29/22 P. v. Powell CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093771

Plaintiff and Respondent, (Super. Ct. No. 00F00207)

v.

MARCUS ANTHONY POWELL,

Defendant and Appellant.

In October 2001, a jury found defendant Marcus Anthony Powell guilty of murder, attempted murder, and attempted robbery, and found true several enhancements, including a robbery-murder special circumstance. Defendant petitioned the trial court for resentencing under Penal Code section 1172.61 based on changes made to the felony-

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to become section 1172.6, without

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murder rule. The trial court denied defendant’s petition, finding the special circumstance rendered defendant ineligible for relief. On appeal, defendant argues he was entitled to counsel and a hearing on the merits of his petition. While this appeal was pending, the Supreme Court issued its opinion in People v. Strong (2022) 13 Cal.5th 698 (Strong). After supplemental briefing, the parties now agree Strong requires reversal of the trial court’s order. We agree and reverse. BACKGROUND On May 1, 1999, defendant and a companion robbed Vernon Youngblood and Kenneth Hann at gunpoint; both victims were shot; Hann died. (People v. Powell (Mar. 9, 2004, C040155) [nonpub. opn.].)2 On October 18, 2001, a jury found defendant guilty of murder (§ 187, subd. (a)); attempted murder (§§ 664, 187, subd. (a)); and found true that the murder occurred while defendant was committing a robbery (§ 190.2, subd. (a)(17)) and four other related firearm enhancements. (§ 12022, subd. (a)(1), 12022.5, former subd. (a)(1), 12022.53, subds. (b), (e)(1), 12022.53, subds. (c), (e)(1).) The jury also found him guilty of attempted robbery (§§ 664, 211), and found true for this count four enhancements. (§§ 1203.06, subd. (a)(1), 12202.5, former subd. (a)(1), 12022.53, subd. (c), 12022.53, subd. (d).) The jury also found the crimes were committed to benefit a criminal street gang. (§ 186.22, former subd. (b)(1).) The trial court sentenced defendant to a total indeterminate term of 75 years to life and a determinate term of nine years. We affirmed the convictions on direct appeal.