People v. Harris CA5

Filed 1/4/23 P. v. Harris 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F079745 Plaintiff and Respondent, (Super. Ct. No. CF91445056) v.

KENNETH LEE HARRIS, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

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

INTRODUCTION Petitioner Kenneth Lee Harris 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). The superior court denied the petition with prejudice at the prima facie stage on the ground petitioner was a major participant in the underlying felony who acted with reckless indifference to human life, and therefore ineligible for resentencing. On appeal, petitioner contends the trial court erred by denying his petition with prejudice, rather than denying the petition without prejudice and allowing him to amend the petition by checking the boxes necessary to present a facially sufficient petition for resentencing. He asks that we remand and order the trial court to deny the petition without prejudice to petitioner filing a new petition. In our original opinion, we held remand was unnecessary because, even if the court erred in denying the petition with prejudice, petitioner was ineligible for resentencing as a matter of law. Specifically, we held the petition was properly denied because the jury’s true finding on a robbery-murder special circumstance established petitioner was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 190.2, subd. (a)(17).) (People v. Harris (June 16, 2021, F079745) [nonpub. opn.].) Petitioner petitioned the California Supreme Court for review (S269852). 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.