People v. Washington CA3

Filed 3/2/23 P. v. Washington CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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) ----

THE PEOPLE, C092937

Plaintiff and Respondent, (Super. Ct. No. 08F04720)

v. OPINION ON TRANSFER

JAMES WASHINGTON,

Defendant and Appellant.

On May 21, 2010, a jury found defendant James Washington guilty of first degree felony murder (Pen. Code, § 187, subd. (a)) (statutory section citations that follow are to the Penal Code), second degree robbery (§ 211), and torture (§ 206). The jury also found true the special circumstances allegations that defendant used a deadly weapon in connection with the murder and torture (§ 12022, subd. (b)(1)) and that the murder happened during the course of a robbery (§ 190.2, subd. (a)(17)).

1

In pertinent part, defendant received a sentence of life without the possibility of parole for the murder, plus one year. We affirmed this judgment on appeal. (People v. Washington (Jan. 3, 2013, C065636) [nonpub. opn.] (Washington).) We granted defendant’s request to incorporate the record of this prior appeal by reference here. Defendant, acting in propria persona, petitioned the trial court for resentencing based on changes to the felony-murder rule under recently enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.) The trial court summarily denied his petition before appointing him counsel after finding, in pertinent part, that given the jury’s true finding on the robbery-murder special circumstance under section 190.2, subdivision (a)(17), defendant was not entitled to relief. On appeal, defendant originally argued that because his petition complied with the statutory requirements, he was entitled to appointment of counsel, briefing, and a hearing on the merits of his petition before the trial court’s denial. He further argued that even if the record of conviction could be properly considered in the trial court’s prima facie determination, the jury’s true finding on the robbery-murder special circumstance could not preclude his petition for relief because that finding predated the California Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark). In accordance with the Supreme Court’s decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis) and the legislature’s codification of that decision in Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill 775) (Stats. 2021, ch. 551, §§ 1-2.), we issued an unpublished decision concluding the trial court erred in summarily denying defendant’s petition without the benefit of the appointment of counsel and briefing. However, we found any error was harmless under the circumstances of this case, and