People v. Durbin CA2/6

Filed 1/5/23 P. v. Durbin CA2/6 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B305999 (Super. Ct. No. KA064692) Plaintiff and Respondent, (Los Angeles County)

v. OPINION ON TRANSFER FROM SUPREME COURT JAMES NICKOLAS DURBIN,

Defendant and Appellant.

Appellant Jack Nickolas Durbin was convicted of first degree murder in 2005. (Pen. Code, §§ 187, subd. (a), 189.)1 The jury found true a special circumstance allegation that the murder had been committed while appellant was engaged in the commission of robbery. (§ 190.2, subds. (a)(17)(A), (d).) In 2019 appellant filed a petition to vacate his murder conviction and obtain resentencing pursuant to section 1170.95, now section 1172.6, which was added to the Penal Code by Senate Bill No.

1 All statutory references are to the Penal Code.

1437 (S.B. 1437).2 (Stats. 2018, ch. 1015, § 4.) The trial court summarily denied the petition because appellant had failed to make a prima facie showing that he could not be convicted of murder under current law. (§ 1172.6, subd. (c).) In our original unpublished opinion (People v. Durbin (May 24, 2021, B305999)), we held that the jury’s true finding on the special circumstance allegation rendered appellant ineligible for relief as a matter of law. We therefore affirmed the order denying his petition. On July 29, 2021, the California Supreme Court granted review. On November 16, 2022, it transferred the matter back to us “with directions to vacate [our] decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 [Strong].” The Attorney General concedes that, pursuant to Strong, appellant made a prima facie case for relief. We accept the concession. Thus, appellant is entitled to an evidentiary hearing under section 1172.6, subdivision (d). We vacate our original decision, reverse, and remand for further proceedings. Procedural Background In addition to being convicted of first degree murder, appellant was convicted of conspiracy to commit robbery and two counts of second degree robbery. (§§ 182, subd. (a)(1), 211, 212.5.) The trial court found true one prior serious felony conviction (§ 667, subd. (a)(1)) and one prior strike within the meaning of California’s “Three Strikes” law. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Appellant was sentenced to prison for a