People v. Mitchell CA5

Filed 1/4/23 P. v. Mitchell CA5 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081153 Plaintiff and Respondent, (Super. Ct. No. SC052002A) v.

RICKY MARSDEN MITCHELL, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush, Judge. Mark Alan Hart, 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, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein, Erin Doering, Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Poochigian, J. and Detjen, J.

INTRODUCTION Petitioner Ricky Marsden Mitchell petitioned the superior court, pursuant to former section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction for first degree murder (§ 187, subd. (a)). The superior court summarily denied the petition at the prima facie stage. On appeal, petitioner asserts he established a prima facie claim for resentencing, and the court therefore erred in denying the petition without issuing an order to show cause or holding an evidentiary hearing. In this regard, he argues his admission of a burglary special circumstance, which required him to admit he was a major participant in the underlying felony and acted with reckless indifference to human life (§ 190.2, subds. (a)(17), (d)), does not preclude relief because it was made prior to our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). In our original opinion we held the petition was properly denied because petitioner’s admission of the burglary special circumstance rendered petitioner ineligible for resentencing on count 1 as a matter of law. (People v. Mitchell (Oct. 20, 2021, F081153) [nonpub. opn.].) Petitioner petitioned the California Supreme Court for review (S271888). The state high court granted review and ultimately transferred the matter to us with directions to vacate our opinion and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). Pursuant to the California Supreme Court’s order, we vacated our prior opinion and afforded the parties an opportunity to file supplemental briefing. The parties now agree the superior court’s order must be reversed and the matter remanded for further proceedings.