People v. Smart CA3

Filed 8/14/23 P. v. Smart CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C097870

Plaintiff and Respondent, (Super. Ct. No. 04F03478)

v.

JARVELL DEANDRE SMART,

Defendant and Appellant.

A jury found defendant Jarvell Deandre Smart and a codefendant guilty of two counts of assault with a firearm and one count of shooting at an occupied vehicle. The jury found the crimes were committed for the benefit of a criminal street gang and that the codefendant personally used a firearm and personally inflicted great bodily injury but that defendant did not. The jury further found that a principal in the offense of shooting at an occupied vehicle, the codefendant, personally and intentionally discharged a firearm and caused great bodily injury to both victims. The trial court sentenced defendant to two

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25-year-to-life terms on the Penal Code1 section 12022.53 enhancements plus a consecutive term of three years on the shooting at an occupied vehicle count. On direct appeal, this court ordered one of the section 12022.53 enhancements stricken, resulting in a modified sentence of 25 years to life plus three years. (People v. Smart (2006) 145 Cal.App.4th 1216, 1227.) In 2022, defendant filed a petition for resentencing under section 1172.6.2 The trial court denied the petition, concluding defendant failed to make a prima facie showing of entitlement to relief. Appellate counsel filed a brief raising no arguable issues under People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436, and requesting we exercise our discretion to review the record for arguable issues on appeal. Defendant filed a supplemental brief. Because the record indicates defendant is not eligible for relief under section 1172.6, we will affirm the trial court’s order denying the petition for resentencing. DISCUSSION In his supplemental brief, defendant asserts he qualifies for relief under section 1172.6 because he was not the shooter, had no intention to participate in a crime, and did not know a crime was going to take place. Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, §§ 1-4) was enacted “to amend 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