People v. Whitehead CA3

Filed 12/30/22 P. v. Whitehead CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093261

Plaintiff and Respondent, (Super. Ct. No. 08F03645)

v. OPINION ON TRANSFER DAVID WHITEHEAD,

Defendant and Appellant.

This case returns to us on transfer with directions from our Supreme Court. A jury found defendant David Whitehead guilty of first degree murder and attempted robbery in 2011. The same jury found true an attempted robbery-murder special circumstance and a personal use of a firearm enhancement, and defendant was sentenced accordingly.

1

Defendant petitioned the trial court for resentencing under what is now Penal Code section 1172.61 based on changes made to the felony-murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437). The court denied defendant’s petition, finding the record established defendant was ineligible for resentencing due to the special circumstance finding. On appeal, defendant argues the trial court erred in relying on the special circumstance finding to disqualify him from relief. We disagreed in our original opinion filed December 6, 2021, 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. 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. BACKGROUND We take the basic facts of defendant’s case from our opinion in the original appeal. (People v. Medina (2016) 245 Cal.App.4th 778, 786 (Medina 1).)2 There, we summarized the incident resulting in these convictions as follows: “[Defendant Brandon] Morton believed he had been ‘shorted’ several grams of methamphetamine in a drug sale. Morton, with [defendant Anthony Arturo] Medina and [defendant David] Whitehead, met with the woman who had made the sale. She was accompanied by her boyfriend, [J.F.], and another man. Morton shot and killed [J.F.]. All three defendants were convicted of