People v. Purcell CA2/8

Filed 1/3/23 P. v. Purcell CA2/8 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or r elying on opinions not certified for publication or ordered published, ex cept 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B307038

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. VA073043) v.

RANDY PURCELL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Robert J. Perry, Judge. Reversed and remanded with directions. Eric R. Larson, 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, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee, Amanda V. Lopez and Christopher G. Sanchez, Deputy Attorneys General, for Plaintiff and Respondent. **********

A jury found defendant and appellant Randy Purcell guilty of first degree felony murder and found true armed-principal, robbery-murder and burglary-murder special-circumstance allegations. In 2011, we affirmed defendant’s conviction. (People v. Purcell (July 14, 2011, B220077) [nonpub. opn.].) After the Legislature passed Senate Bill 1437 (2017–2018 Reg. Sess.), which, among other things, amended the felony murder statute, defendant filed a petition for resentencing pursuant to Penal Code former section 1170.95. During the pendency of this appeal, former section 1170.95 was renumbered as section 1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.) We refer to the statute only by its new designation for clarity. Without appointing counsel or accepting any briefing, the trial court summarily denied defendant’s petition, reasoning there was extensive evidence implicating defendant in the murder and he had admitted his involvement in the shooting. The trial court found defendant was the actual killer and ineligible for resentencing relief as a matter of law. In a prior unpublished decision, we affirmed the denial of defendant’s petition. (People v. Purcell (May 27, 2021, B307038) [nonpub. opn.].) At that time, there was a split in the Courts of Appeal as to whether a jury’s true finding on a special circumstance allegation pursuant to Penal Code section 190.2 precluded resentencing relief under section 1172.6. In affirming the trial court’s denial, we said that pending further guidance from the Supreme Court, we would follow those cases concluding a true finding did preclude relief and that defendant’s remedy was to pursue relief by way of habeas corpus.