People v. Cole CA3

Filed 1/24/23 P. v. Cole CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

THE PEOPLE, C093908

Plaintiff and Respondent, (Super. Ct. No. 01F06209)

v.

THEODORE COLE,

Defendant and Appellant.

Defendant Theodore Cole appeals from the trial court’s February 10, 2021 order denying his petition for resentencing brought pursuant to Penal Code section 1172.6 (formerly § 1170.95).1 The court found defendant ineligible for relief as a matter of law by virtue of the jury’s special circumstance finding and determined preclusive use of this

1 Further undesignated statutory references are to the Penal Code.

Effective June 30, 2022, long after defendant filed his petition, the Legislature renumbered section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We will refer to the section where possible by its new numbering.

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finding (which predated the California Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522) was permissible under published authority. On appeal, the parties agree, as do we, that the trial court’s order cannot stand under the California Supreme Court’s recent decision in People v. Strong (2022) 13 Cal.5th 698. We accordingly reverse and remand for further proceedings consistent with this opinion. BACKGROUND Defendant’s Convictions On October 24, 2002, a jury found defendant guilty of first degree felony murder (§§ 187/189; count one) with an attempted robbery special circumstance (§ 190.2, subd. (a)(17)) and attempted robbery (§§ 664/211; count two). We upheld these convictions in an unpublished decision issued in 2004. (People v. Cole (Mar. 26, 2004; C042903) [nonpub. opn.].) The California Supreme Court denied defendant’s petition for review. (People v. Cole, supra, C042903, review den. June 9, 2004, S124337.) Legal Background Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), which became effective on January 1, 2019, was enacted “to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The legislation accomplished this by amending sections 188 and 189 and adding former section 1170.95 to the Penal Code. Section 188, which defines malice, now provides in part: “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely