People v. Jones CA3

Filed 12/23/22 P. v. Jones CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C090630

Plaintiff and Respondent, (Super. Ct. No. 01F07610)

v. OPINION ON TRANSFER

GERALD EDWARD JONES,

Defendant and Appellant.

Defendant Gerald Edward Jones appeals from a postjudgment order denying his petition for resentencing under Penal Code1 section 1172.6.2 A jury found defendant

1 Further undesignated statutory references are to the Penal Code. 2 Effective June 30, 2022, former section 1170.95 was recodified without substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his petition under former section 1170.95, but we will refer to the current section 1172.6 throughout this opinion.

1

guilty of the first degree murder of Justin Roberts during the course of a burglary; the trial court sentenced him to life without the possibility of parole, and his conviction was affirmed on appeal. Defendant later petitioned the trial court for resentencing based on changes to the felony-murder rule under Senate Bill No. 1437. (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.) The trial court summarily denied his petition finding the record established defendant was ineligible for resentencing given the jury’s true finding on the burglary- murder special circumstance under section 190.2. The court reasoned that in finding the special circumstance true, the jury necessarily found defendant was either the actual killer, aided and abetted the actual killer with the intent to kill, or was a major participant who acted with reckless indifference to human life during the crimes. In an unpublished opinion, we affirmed the trial court’s order denying defendant’s resentencing petition, holding that any error in failing to obtain briefing before summarily denying the petition was harmless beyond a reasonable doubt given the jury’s true finding on the burglary-murder special circumstance, which this court had previously upheld in defendant’s direct appeal. (People v. Jones (Dec. 15, 2020, C090630) [nonpub. opn.].) The California Supreme Court subsequently granted review and 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 and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). By separate order, we vacated our decision. In supplemental briefing after transfer, the parties agree that defendant’s petition was facially sufficient, and that under Strong neither the jury’s true finding on the burglary-murder special-circumstance allegation, which was made before our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 clarified what it means to be a major participant who acts with reckless indifference to human life, nor this court’s conclusion on direct appeal that substantial