People v. Fitzgerald CA4/3

Filed 6/14/23 P. v. Fitzgerald CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G061078

v. (Super. Ct. No. 98NF3130)

GEORGE EDWARD FITZGERALD III, OPINION

Defendant and Appellant.

Appeal from a postconviction order of the Superior Court of Orange County, Kimberly Menninger, Judge. Reversed and remanded. William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, Lynne G.

McGinnis and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent. * * * George Edward Fitzgerald III appeals from the trial court’s summary denial 1 of his petition for resentencing under Penal Code section 1170.95, now renumbered as section 1172.6. (Stats. 2022, ch. 58, § 10.) As the Attorney General concedes, the Supreme Court’s decision in People v. Strong (2022) 13 Cal.5th 698 (Strong) requires reversal and remand for the trial court to issue an order to show cause (OSC) on Fitzgerald’s resentencing petition and to conduct a further hearing. At the hearing, the court must determine under current law following enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) and related legislation, whether Fitzgerald was a “major participant” in the robbery in which his codefendant killed a convenience store clerk. (§ 189, subd. (e)(3); § 1172.6, subd. (d); see Stats. 2018, ch. 1015, § 3, amending § 189 to specify new felony murder requirements.) If so, the court must also determine whether Fitzgerald acted with “reckless indifference to human life” before the clerk’s death. (§ 189, subd. (e)(3).) In making these determinations, the trial court shall employ the Supreme Court’s multi-factor analyses set forth in People v. Banks (2015) 61 Cal.4th 788 (Banks) and in People v. Clark (2016) 63 Cal.4th 522 (Clark) on the respective questions. Thus, we reverse the trial court’s order and remand the matter to allow the court to issue the requisite OSC and hold a hearing on the resentencing petition. (§ 1172.6, subds. (c), (d).) Both defense and the prosecution may elect to present “new or additional evidence” at the hearing, and the prosecution bears the burden of proof under the beyond a reasonable doubt standard to prove Fitzgerald is guilty of murder under the current law. (Id., subd. (d)(3); § 189, subd. (e).)