People v. Whatley CA3

Filed 2/15/23 P. v. Whatley CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C095248

Plaintiff and Respondent, (Super. Ct. No. STK-CR-FE-2009-0005430) v.

GERELL LEE WHATLEY,

Defendant and Appellant.

Defendant Gerell Lee Whatley appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1172.6.1 Defendant argues the trial court erroneously found he failed to establish a prima facie case, and the People agree. We will reverse the trial court’s order and remand for further proceedings.

1 Undesignated section references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Although defendant filed his petition under former section 1170.95, we will refer to it as section 1172.6 throughout this opinion.

1

FACTUAL AND PROCEDURAL BACKGROUND A detailed recitation of the underlying facts is set forth in our prior opinion in this case. (People v. Lewis (Apr. 30, 2015, C064781) [nonpub. opn.].) In sum, defendant and a friend committed a series of armed robberies in October 2008. One of their victims died from a gunshot wound to the head. In 2010, a jury found defendant guilty of first degree murder, four attempted murders, eight robberies, two attempted robberies, and a burglary. Various enhancement allegations were found to be true. The jury also found true that defendant committed the murder while he was engaged in a robbery. (§ 190.2, subd. (a)(17)(A).) The trial court sentenced defendant to life in prison without the possibility of parole for the murder, four life terms for the attempted murders, and a determinate sentence of 17 years four months. We affirmed the judgment on appeal. During trial, the jury was instructed with CALCRIM Nos. 540A and 540B. The jury was instructed with CALCRIM No. 540A as follows: “To prove a defendant guilty of first-degree murder under a theory of felony murder, the People must prove that: [¶] One, the defendant committed a robbery. And I put the Penal Code Section, 211. [¶] Two, the defendant intended to commit a robbery; And [¶] Three, while committing the robbery, the defendant did an act [that caused] the death of another person. [¶] A person may be guilty of felony murder even if the killing was unintentional, accidental, or negligent. [¶] To decide whether the defendant committed robbery, please refer to the separate instructions that I will give you on that crime. You must apply those instructions when you decide whether the People have proved first-degree murder under a theory of felony murder. [¶] The defendant must have intended to commit the felony of robbery before or at the time of the act causing the death.” The jury was instructed with CALCRIM No. 540B as follows: “A defendant may also be guilty of murder, under a theory of felony murder, even if another person did the act that resulted in the death. I will call the other person the perpetrator. [¶] To prove