People v. Smith CA3

Filed 6/20/23 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091746

Plaintiff and Respondent, (Super. Ct. No. CR68241)

v. OPINION ON TRANSFER

DARREL M. SMITH,

Defendant and Appellant.

Defendant Darrel M. Smith1 appeals from the denial of his postconviction petition for relief under Penal Code2 section 1172.6.3 Counsel for defendant filed a brief seeking

1 Defendant’s name is listed multiple ways throughout the record. While the original abstract of judgment lists defendant’s name as “Darrel Maurice Smith,” this court’s prior orders, the petition for review by our Supreme Court, and our high court’s order list defendant’s name as “Darrel M. Smith”; we use the latter name in this opinion for consistency. 2 Further undesignated statutory references are to the Penal Code. 3 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6 with no substantive change in the text. (Stats. 2022, ch. 58, § 10.)

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our independent review under People v. Wende (1979) 25 Cal.3d 436 to determine whether there are any arguable issues on appeal. Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), we will dismiss the appeal as abandoned. FACTUAL AND PROCEDURAL BACKGROUND In January 1984, defendant went to the residence of T.C., with whom he previously had been romantically involved. He shot both her and another woman, who was present, in the legs. He then shot T.C.’s fiancé, D.H., in the head, killing him. By stipulation of the parties, a court trial was held and defendant was found guilty by the trial court of second degree murder based on evidence submitted at the preliminary examination. The trial court also found defendant personally used a firearm. Defendant was sentenced to an indeterminate term of 15 years to life for murder, plus two years consecutive for the firearm enhancement. In January 2019, defendant filed a form petition for resentencing under section 1172.6, checking boxes declaring that a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a felony-murder theory or under the natural and probable consequences doctrine; he was convicted of first or second degree murder under the felony-murder rule or natural and probable consequences doctrine; and he could not now be convicted of first or second degree murder because of the changes to sections 188 and 189. Defendant also checked a box declaring that he was convicted of second degree murder under the natural and probable consequences doctrine or second degree felony murder and could not now be convicted under the changes to section 188. The trial court appointed a public defender to represent defendant. The prosecution filed a response arguing that the petition should be dismissed because (1) Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4,