People v. Taylor CA2/6

Filed 1/18/23 P. v. Taylor CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. B305964, B308322 (Super. Ct. No. NA074807) Plaintiff and Respondent, (Los Angeles County)

v.

DERRICK TAYLOR,

Defendant and Appellant.

Derrick Taylor 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 Cal.5th

1 All statutory references are to the Penal Code.

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 petitioner from showing eligibility for section 1172.6 relief].) FACTUAL AND PROCEDURAL HISTORY Taylor’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 during commission of the crimes 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 Taylor for the murder conviction to life without the possibility of parole, plus a consecutive term of 35 years to life in part for the principal firearm use enhancement. Sentences on a remaining count and enhancements were imposed but stayed pursuant to section 654. Taylor appealed. We modified the judgment to award additional presentence custody credit, but otherwise affirmed. (People v. Taylor (Nov. 29, 2012, B233797) [nonpub. opn.].) On January 30, 2020, Taylor 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 denied the petition without appointing counsel or requesting briefing based upon a belief that Taylor was the actual killer. Taylor filed this appeal and challenges the decision. While Taylor’s appeal was pending, the trial court issued a revised memorandum of decision. This decision concluded that