In re Adock CA3

Filed 1/13/23 In re Adock CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

In re MARK ADOCK on Habeas Corpus. C089547 (Super. Ct. No. ) 05F01670

THE PEOPLE, 3 Crim.C089581 Plaintiff and Respondent,

v. OPINION ON TRANSFER

MARK ADOCK,

Defendant and Appellant.

In this matter on transfer from the California Supreme Court, we reverse the trial court’s denial of defendant Mark Adcock’s petition for resentencing under Penal Code section 1172.6.1

1 Further undesignated statutory references are to the Penal Code. Effective June 20, 2022, former section 1170.95 was recodified without substantive change to

1

BACKGROUND AND ANALYSIS

Defendant was convicted of first-degree murder with robbery and burglary special circumstances and was sentenced to life without the possibility of parole. We affirmed his convictions on appeal. (People v. Adcock (Mar. 24, 2009, C058167) [nonpub. opn.].) Defendant later petitioned for habeas corpus and resentencing under section 1172.6 based on changes to the felony murder rule under Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019) (Senate Bill 1437). Section 1176.2, also part of Senate Bill 1437, permits a person convicted of felony murder to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if, among other things, the petitioner could not be convicted of first- or second-degree murder due to the change in the law, i.e., he neither killed nor intended to kill and was not a major participant in the underlying felony who acted with reckless indifference to human life. (§§ 188, 189, 1172.6, subd. (a).) The trial court denied defendant’s petitions, finding that neither made a prima facie case for relief under section 1172.6. It denied the resentencing petition without appointing counsel for defendant despite defendant’s request and without receiving briefing from the People. Defendant appealed the trial court’s order and petitioned for habeas relief in this court. In an unpublished opinion, we denied the habeas petition and affirmed the trial court’s order denying defendant’s resentencing petition. On the habeas petition, we concluded sufficient evidence supported the jury’s special circumstance findings that defendant was a major participant in the underlying felonies and acted with reckless indifference to human life, as those elements had been defined by the California Supreme Court after defendant’s conviction in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). On the resentencing petition, we agreed