People v. Pope CA3

Filed 12/15/23 P. v. Pope 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C097889

Plaintiff and Respondent, (Super. Ct. No. 05F09421)

v.

NATHANIEL LEE POPE,

Defendant and Appellant.

In December 2006, a jury found defendant Nathaniel Lee Pope guilty of attempted murder (Pen. Code, §§ 664/187)1 and found true an allegation that he personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). The trial court sentenced defendant to a state prison term of seven years for attempted murder, plus 25 years to life for personally discharging a firearm causing great bodily injury. We affirmed

1 Undesignated statutory references are to the Penal Code.

1

the judgment on direct appeal. (People v. Pope (Sept. 24, 2008, C054687) [nonpub.opn.].) In May 2022, defendant filed a petition for resentencing under section 1172.6.2 The trial court denied the petition, finding defendant ineligible for relief as a matter of law because the jury found beyond a reasonable doubt that “ ‘defendant intended to kill that person.’ The jury was not given the option to convict [defendant] under the natural and probable consequences theory (CALCRIM Nos. 402, 403). Because only attempted murder convictions based on the natural and probable consequences theory are eligible for relief, the instructions confirm [defendant] is disqualified from relief.” Defendant appeals from that order. 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 asks that we exercise our discretion to review the record for arguable issues. This court notified defendant he had 30 days to file a supplemental brief raising any argument he wanted us to consider. Defendant filed a supplemental brief arguing the jury instruction for attempted murder (CALCRIM No. 600) allows a jury to impute malice. As a result, he argues, he is not precluded from relief as a matter of law. We will affirm. I. DISCUSSION A. Legal Background Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 1, 2019, “amend[ed] 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