People v. Flenory-Davis CA3

Filed 3/20/24 P. v. Flenory-Davis CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C098575

Plaintiff and Respondent, (Super. Ct. No. 10F04481)

v.

JAIVONNE FLENORY-DAVIS,

Defendant and Appellant.

Defendant Jaivonne Flenory-Davis appeals the trial court’s denial of his petition for resentencing under Penal Code former section 1170.95, now 1172.6.1 His 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.

1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered former section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We refer to section 1172.6 throughout this opinion.

1

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 could have inferred his intent to attempt to kill the victim based on the kill zone instruction. We disagree and affirm. FACTUAL AND PROCEDURAL BACKGROUND In July 2010, a gang fight broke out at a club party for teenagers. When everyone rushed outside, about six gunshots were fired. One victim (L.D.) was instantly killed, while a second victim (C.M.) was shot but survived. Defendant’s friend, who had accompanied defendant to the party, identified defendant as the shooter. The two fled in a car. (People v. Flenory-Davis (Aug. 20, 2014, C072000) [nonpub. opn.].) A jury found defendant guilty of first degree murder and attempted murder and found true firearm and gang enhancements as to both charges. The trial court sentenced defendant to 25 years to life for the murder plus 25 years to life for the firearm enhancement and 10 years for the gang enhancement, and life with a minimum parole period of seven years for the attempted murder plus 25 years to life for the firearm enhancement and 10 years for the gang enhancement. On appeal, this court struck the gang enhancement on the murder charge, imposed a 15-year minimum parole eligibility for the murder charge, and remanded the matter for the trial court to resentence defendant on the attempted murder charge. This court otherwise affirmed the judgment. (People v. Flenory-Davis, supra, C072000.) In March 2015, the trial court sentenced defendant to an indeterminate term of 75 years to life, consecutive to a determinate 19-year term. In April 2022, defendant filed a petition for resentencing under section 1172.6. Counsel was appointed, and the prosecution filed a brief arguing defendant was ineligible for relief because the jury was never instructed regarding the natural and probable consequences theory, felony murder, or any other theory where liability is imputed to a defendant based on a participation in a crime. As to the attempted murder conviction, the