People v. Pierce CA3

Filed 3/17/23 P. v. Pierce CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C093003

v. (Super. Ct. No. 06F04599)

JAYSHAWN VISA PIERCE, ON TRANSFER

Defendant and Appellant.

In 2008, a jury found defendant Jayshawn Visa Pierce guilty of first degree murder and attempted robbery. (People v. Pierce (May 18, 2010, C060588) [nonpub. opn.] (Pierce).) The jury found true a special circumstance allegation that the murder was committed during the attempted robbery, but found not true the allegation that defendant had intentionally and personally used a firearm in the commission of the murder. The trial court sentenced defendant to life without the possibility of parole plus two years eight months. In May 2010, this court modified the judgment to correct sentencing errors and affirmed the judgment as modified. (Ibid.)

1

Defendant subsequently petitioned the trial court for resentencing under what is now Penal Code section 1172.61 based on changes made to the felony-murder rule by Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court denied defendant’s petition, finding the record established defendant was ineligible for resentencing because the jury found true the special circumstance allegations, and because defendant was the actual killer or at least a major participant. Defendant appealed, arguing, among other things, that the trial court erred in determining he was ineligible for resentencing as a matter of law based on the jury’s special circumstance finding. This court affirmed the trial court’s order. The California Supreme Court transferred the case back to this court with directions to reconsider the matter in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). We conclude the trial court’s order denying the petition for resentencing must be reversed and the matter remanded for further proceedings consistent with this opinion. BACKGROUND Defendant and his codefendants were looking for someone to rob so they could pay bail money for a friend. They waited outside a nightclub and followed two individuals. Defendant approached the victims with a shotgun and said “Give me your shit” or something to that effect. The victims offered a purse and said they did not want any trouble, but defendant shot and killed one of them. (Pierce, supra, C060588.) The jury found defendant guilty of first degree murder (§§ 187, 189) and two counts of attempted robbery (§§ 211, 664). As to the murder count, the jury found true the special circumstance allegation that the murder was committed during the attempted robbery. (§ 190.2, subd. (a)(17).) But it found not true the allegation that defendant had intentionally and personally used a firearm in the commission of the