People v. Ackerman CA3

Filed 8/24/23 P. v. Ackerman CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096054

Plaintiff and Respondent, (Super. Ct. No. 09F04484)

v.

JEREMY DALE ACKERMAN,

Defendant and Appellant.

Defendant Jeremy Dale Ackerman appeals the trial court’s order denying his petition for resentencing after an evidentiary hearing pursuant to Penal Code section 1172.6, subdivision (d).1 “At such a hearing, the prosecution is tasked with

1 Effective June 30, 2022, the Legislature renumbered former section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Although defendant filed his petition under former section 1170.95, we cite the current section 1172.6 throughout this opinion.

Undesignated section references are to the Penal Code.

1

proving ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to sections 188 or 189 made effective January 1, 2019.’ [Citation.]” (People v. Burgess (2023) 88 Cal.App.5th 592, 595.) On appeal, defendant contends the trial court “applied the wrong evidentiary standard at the section 1172.6, subdivision (d)(3) hearing.” We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND A jury previously found defendant “guilty of first degree murder, burglary, and robbery. On the murder count, the jury found true the allegation that [defendant] personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)) and the felony-murder special circumstances allegations that [defendant] committed the murder while engaged in the commission of robbery and burglary (§ 190.2, subd. (a)(17)(A), (G)). “The trial court sentenced [defendant] to life in state prison without possibility of parole for the first degree special-circumstance murder. The court imposed and stayed sentence on the remaining counts and allegations.” (People v. Ackerman (Dec. 8, 2016, C065484) [nonpub. opn.].) Defendant appealed, and we affirmed his conviction. (Ibid.) In 2019, defendant filed a petition under section 1172.6. The trial court issued an order to show cause and held an evidentiary hearing pursuant to section 1172.6, subdivision (d)(3). At the hearing, the trial court admitted the “appellate transcripts” and defendant testified. After evidence and argument from counsel, the court said: “there is . . . no question that the law, having changed since the trial resulting in your conviction, were this case tried again tomorrow with the change of law, statutory changes and then Banks and Clark and other appellate holdings – which are contextualized in CALCRIM [No.] 703 – in which jurors would now, were we to try this case, be instructed to consider a number of factors in assessing whether you are a murderer on the facts presented.” The trial court then went through each of the factors in CALCRIM No. 703 (Special Circumstances: Intent Requirement for Accomplice – Felony Murder). The