People v. Nowden CA4/1

Filed 1/3/23 P. v. Nowden CA4/1 Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D075767

Plaintiff and Respondent,

v. (Super. Ct. No. SCD143117)

TERRANCE LAMONT NOWDEN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Frederic L. Link, Judge. Reversed and remanded. Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, Lynne McGinnis, Alan L. Amann, and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION Defendant Terrance Lamont Nowden filed a petition under Penal

Code,1 section 1172.6 (formerly section 1170.95)2 requesting his first degree felony-murder conviction be vacated and he be resentenced. After appointing counsel but before briefing occurred, the trial court issued an order denying the petition, stating the jury had found special circumstances that made Nowden ineligible for resentencing. On appeal, Nowden argued that in light of new standards for determining whether a defendant has acted as a major participant with reckless indifference to human life detailed in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), the court erred by denying relief without allowing him the opportunity to file a brief. In an unpublished opinion, we explained that the trial court’s summary denial of the petition was improper because it considered only the language of the verdict, and we remanded the matter for reconsideration. The People submitted a petition for review to the Supreme Court, which granted the request. After reaching its decisions in People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis), the Supreme Court transferred the matter back to us with directions to vacate our previous opinion and reconsider the cause. We have complied with the California Supreme Court’s instructions and considered Nowden’s claims, taking into consideration Strong and Lewis. In his supplemental brief (see Cal. Rules of Court, rule 8.200(b)(1)), Nowden contends he has already met his prima facie burden and requests remand