People v. Smith CA2/6

Filed 1/4/23 P. v. Smith CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B303467 (Super. Ct. No. NA074807) Plaintiff and Respondent, (Los Angeles County)

v.

VINCENT EDWARD SMITH,

Defendant and Appellant.

Vincent Edward Smith appeals an order denying his petition for resentencing pursuant to former Penal Code section 1170.95 (renumbered section 1172.6 without substantive change).1 We reverse the order and remand for an evidentiary hearing pursuant to section 1172.6. (People v. Strong (2022) 13

1 All statutory references are to the Penal Code.

Cal.5th 698, 717-718 [true finding on a felony-murder special- circumstance allegation rendered prior to People v. Clark (2016) 63 Cal.4th 522 and People v. Banks (2015) 61 Cal.4th 788 does not preclude a petitioner from showing eligibility for section 1172.6 relief].) FACTUAL AND PROCEDURAL HISTORY Smith’s resentencing petition concerned his 2011 conviction of first degree murder (count 1) and burglary (count 2), with findings of: 1) special-circumstance murder committed during a burglary; 2) participation in a crime to benefit a criminal street gang; and 3) discharge of a firearm by a principal causing death. (§§ 187, subd. (a), 189, 459, 190.2, subd. (a)(17), 186.22, subd. (b)(4), 12022.53, subds. (b)-(e).) The trial court sentenced Smith for the murder conviction to life without the possibility of parole, plus a consecutive indeterminate life term for the criminal street gang enhancement, plus a consecutive term of 30 years to life for the principal firearm use enhancement. Sentences on a remaining count and enhancements were imposed but stayed pursuant to section 654. Smith appealed. We modified the judgment to strike the stayed parole revocation fine and awarded additional presentence custody credits, but otherwise affirmed. (People v. Smith (Feb. 5, 2013, B233544) [nonpub. opn.].) Smith filed a section 1172.6 petition for resentencing alleging that his murder conviction rested upon the felony murder or the natural and probable consequences doctrines and that he was not the actual killer. The trial court appointed counsel for Smith and ordered the parties to file written arguments regarding resentencing. Following lengthy briefing, the court denied the petition in a thorough and thoughtful ruling, deciding that Smith was ineligible for resentencing as a major