People v. Lampkin CA3

Filed 1/31/23 P. v. Lampkin CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE,

Plaintiff and Respondent, C089258

v. (Super. Ct. No. CRF990000320) LEON LAMPKIN, JR., ON TRANSFER Defendant and Appellant.

A jury convicted defendant Leon Lampkin, Jr., of first degree murder, first degree burglary, attempted robbery, and possession of a short-barrel shotgun. The jury found true firearm enhancement allegations and Penal Code section 190.21 special

1 Undesignated statutory references are to the Penal Code.

1

circumstances allegations, but found that defendant did not intentionally and personally discharge a firearm during the commission of the crimes. This court affirmed the convictions in 2002 but remanded the matter for resentencing on the determinate terms. (People v. Lampkin (March 20, 2002, C034676) [nonpub. opn.] (Lampkin).) Defendant was resentenced in 2002. More than a decade later, defendant filed a petition for resentencing under section 1170.95, now section 1172.6, and requested the appointment of counsel. The trial court denied the petition. This court affirmed that order, but the California Supreme Court 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) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Having done so, we conclude the trial court’s order must be reversed and the matter remanded for further proceedings. BACKGROUND The People charged Michael Owens and defendant with the first degree murders of Alejandro and Leoncio Jimenez (§ 187-- counts I and II), first degree burglary (§ 459 -- count III), attempted robbery (§§ 664, 211 -- counts IV and V), and possession of a short-barrel shotgun (§ 12020, subd. (a) -- count VI). The amended information included multiple special circumstances and firearm enhancement allegations (§§ 190.2, subd. (a)(3), (17)(A) & (17)(G), 12022.53, subds. (b) & (c), 12022.5, subd. (a)(1)). The trial court instructed the jury on felony murder using CALJIC Nos. 8.10 and 8.21. Those instructions and the CALJIC No. 8.26 instruction did not require the jury to find that defendant was the actual killer or acted with intent to kill. With regard to the section 190.2 special circumstances allegations, the trial court instructed pursuant to CALJIC No. 8.80.1 that if the jury found defendant guilty of murder in the first degree, the jury must then determine, in light of the special circumstance allegations, (1) whether the murders were committed while defendant was engaged in or an accomplice in the commission or attempted commission of robbery, (2) whether the murders were