People v. Rainey CA1/1

Filed 9/20/23 P. v. Rainey CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, A166802 Plaintiff and Respondent, (Contra Costa v. County Super. Ct. No. CLYDE RAINEY, 05-980708-2) Defendant and Appellant.

Defendant Clyde Rainey challenges an order denying his petition for resentencing under Penal Code section 1172.6 (formerly § 1170.95)1 on the ground defendant failed to state a prima facie case for relief. The Attorney General concedes the record of conviction does not conclusively establish defendant is ineligible for resentencing, and we agree. Accordingly, we reverse and direct the trial court to issue an order to show cause under section 1172.6 and proceed accordingly. BACKGROUND2 “On Halloween night, October 31, 1996, 20-year-old Koupou Saechao was twice shot in the back while in front of his aunt’s apartment building in

1 All further statutory references are to the Penal Code. Much of the background is taken from our prior opinion affirming 2

defendant’s conviction. (People v. Rainey (Feb. 7, 2001, A088153) [nonpub. opn.].)

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North Richmond. The aunt heard two gunshots, and then Saecho came to the door and collapsed in her arms. Saecho said a ‘black guy’ shot him. Saechao died four days later, on November 4. “The police arrested 16-year-old appellant on November 6, 1996. Appellant is African American. Appellant initially denied involvement in the shooting, then said that he and 14-year-old Donald C. tried to rob Saechao and Donald shot the victim when a patdown found nothing to steal. Ultimately, after talking with his mother at the police station, appellant confessed that he was the one who shot Saechao. When speaking to the police, appellant denied being a member of a gang, or participating in the shooting as a gang initiation. “Appellant’s trial defense was that he was guilty of no more than manslaughter or second degree murder because he shot the victim as part of a gang initiation, not robbery, and suffers from developmental limitations that impede his ability to premeditate.” (People v. Rainey, supra, A088153.) The jury was instructed, among other things, on felony murder as a possible basis for convicting defendant as well as the personal use of a firearm enhancement. The jury convicted defendant of first degree murder, committed during an attempted robbery and found true the personal use of a firearm enhancement, and the trial court sentenced him to life without the possibility of parole. (People v. Rainey, supra, A088153.)3