People v. Parker CA5

Filed 8/2/23 P. v. Parker CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F085006 Plaintiff and Respondent, (Super. Ct. No. SUF23393B) v.

DAVID DUANE PARKER, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Merced County. Jennifer O. Trimble, Judge. Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and Kelly E. LeBel, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Peña, Acting P. J., Meehan, J. and Snauffer, J.

Defendant David Duane Parker appeals from the denial of his petition for resentencing made pursuant to Penal Code,1 section 1172.6. Briefs submitted in this case show the parties agree the Supreme Court decision in People v. Strong (2022) 13 Cal.5th 698 (Strong) requires a reversal of the order denying the section 1172.6 petition and a remand of the matter for further proceedings. We also agree. PROCEDURAL SUMMARY In March 2000, defendant was found guilty by a jury of committing first degree murder (§ 187, subd. (a)(1)), kidnapping for the purpose of committing a robbery (§ 209, subd. (b)), carjacking (§ 215), and robbery (§ 211), all felonies. The jury also found true three special circumstances connected to the first degree murder charge, alleging the murder was committed during a robbery, kidnapping, or carjacking, or an attempt to commit one of those crimes. (§ 190.2 subd. (a)(17)(A), (B), (L).) Defendant ultimately received a sentence of life without the possibility of parole for the first degree murder conviction. The sentences for the remaining counts were then imposed, but stayed pursuant to section 654. In response to later legislative changes impacting the definition of felony murder, defendant filed a petition for writ of habeas corpus in the trial court in February 2020, asking to be resentenced on the first degree murder conviction. In March 2020, the court denied the petition, concluding defendant failed to make a prima facie case for relief. Defendant then submitted a petition for writ of habeas corpus to this court citing the Supreme Court opinions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, as providing grounds for reconsideration of his sentence for first degree murder. This court denied defendant’s request for a writ on May 21, 2020, with the following language: