People v. King CA3

Filed 6/13/23 P. v. King CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C097221

Plaintiff and Respondent, (Super. Ct. No. 12F08209)

v.

JERRY LEE KING,

Defendant and Appellant.

Defendant Jerry Lee King appeals the trial court’s denial of his petition for resentencing under Penal Code section 1172.6.1 Counsel filed a brief raising no arguable issues under People v. Delgadillo (2022) 14 Cal.5th 216 or People v. Wende (1979) 25 Cal.3d 436 and requesting that we exercise our discretion to review the entire record for

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his petition under former section 1170.95, but we will cite to the current section 1172.6 throughout this opinion.

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arguable issues on appeal. We notified defendant that he had 30 days in which to file a supplemental brief raising any argument he wanted this court to consider. In his supplemental brief, defendant invites this court to independently review the facts of his case, arguing that they fail to establish beyond a reasonable doubt that he acted with malice aforethought or intent to kill. We will affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2014, a jury found defendant guilty of first degree murder (§ 187, subd. (a)) and found true that he personally used a firearm. (§ 12022.53, subds. (b)-(d).) The trial court sentenced defendant to state prison for 50 years to life. We affirmed the judgment in 2015. (People v. King (May 28, 2015, C076545) [nonpub. opn.].) In April 2022, defendant filed a petition for resentencing under section 1172.6. The trial court appointed counsel and the parties submitted briefing. In October 2022, the trial court denied defendant’s petition, finding he was ineligible for relief as a matter of law because the jury was not instructed on a theory of murder that is now invalid pursuant to the changes to sections 188 and 189 implemented by Senate Bill No. 1437 (Reg. Sess. 2017-2018) (Senate Bill 1437). (Stats. 2018, ch. 1015, § 1(f).) Defendant timely appealed. DISCUSSION A. Legal background Senate Bill 1437, which became effective on January 1, 2019, “amend[ed] 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(f).) 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