Filed 1/4/23 P. v. Smith CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303467
(Super. Ct. No. NA074807)
Plaintiff and Respondent, (Los Angeles County)
v.
VINCENT EDWARD SMITH,
Defendant and Appellant.
Vincent Edward Smith appeals an order denying his
petition for resentencing pursuant to former Penal Code section
1170.95 (renumbered section 1172.6 without substantive
change).1 We reverse the order and remand for an evidentiary
hearing pursuant to section 1172.6. (People v. Strong (2022) 13
1 All statutory references are to the Penal Code.
Cal.5th 698, 717-718 [true finding on a felony-murder special-
circumstance allegation rendered prior to People v. Clark (2016)
63 Cal.4th 522 and People v. Banks (2015) 61 Cal.4th 788 does
not preclude a petitioner from showing eligibility for section
1172.6 relief].)
FACTUAL AND PROCEDURAL HISTORY
Smith’s resentencing petition concerned his 2011 conviction
of first degree murder (count 1) and burglary (count 2), with
findings of: 1) special-circumstance murder committed during a
burglary; 2) participation in a crime to benefit a criminal street
gang; and 3) discharge of a firearm by a principal causing death.
(§§ 187, subd. (a), 189, 459, 190.2, subd. (a)(17), 186.22, subd.
(b)(4), 12022.53, subds. (b)-(e).) The trial court sentenced Smith
for the murder conviction to life without the possibility of parole,
plus a consecutive indeterminate life term for the criminal street
gang enhancement, plus a consecutive term of 30 years to life for
the principal firearm use enhancement. Sentences on a
remaining count and enhancements were imposed but stayed
pursuant to section 654. Smith appealed. We modified the
judgment to strike the stayed parole revocation fine and awarded
additional presentence custody credits, but otherwise affirmed.
(People v. Smith (Feb. 5, 2013, B233544) [nonpub. opn.].)
Smith filed a section 1172.6 petition for resentencing
alleging that his murder conviction rested upon the felony
murder or the natural and probable consequences doctrines and
that he was not the actual killer. The trial court appointed
counsel for Smith and ordered the parties to file written
arguments regarding resentencing. Following lengthy briefing,
the court denied the petition in a thorough and thoughtful ruling,
deciding that Smith was ineligible for resentencing as a major
2
participant in the crime who acted with reckless indifference for
human life. (§ 189, subd. (e)(3).) In detail, the court discussed
the factors set forth in People v. Banks, supra, 61 Cal.4th 788, in
deciding its major participant and reckless indifference analysis.
Summary of Trial Evidence
In the late evening of October 26, 2006, Derrick Taylor,
Jarrett Myers, and Smith, entrenched gang members of the
“Santana Blocc Crips” criminal street gang, went to the residence
of drug dealer John Ibrahim to obtain marijuana and cash.
Taylor carried a firearm in his back pocket. Ibrahim also had a
firearm. A firefight inside the residence ensued. Ibrahim was
shot three times, twice in the back. He died in the bushes outside
his residence. Neither Smith nor his codefendants sought help
for Ibrahim.
During the gun battle, Ibrahim shot Smith in the neck. At
trial, the parties stipulated that Smith’s bloodstains were
recovered in Ibrahim’s bedroom. A window screen near the front
door was broken, suggesting a forced entry into the residence.
Smith gave a statement to police officers admitting the gun
battle, flight from the bedroom window, and his gang
membership. Smith minimized his role in the murder, however,
and stated that the men went to Ibrahim’s residence to purchase
marijuana although they were short of funds.
Smith appeals the resentencing order.
DISCUSSION
Smith argues that the trial court erred by denying his
resentencing petition because his felony-murder special-
circumstance conviction does not necessarily render him
ineligible for section 1172.6 relief. The Attorney General
concedes pursuant to People v. Strong, supra, 13 Cal.5th 698, 720
3
[special circumstance finding prior to People v. Banks, supra, 61
Cal.4th 788, and People v. Clark, supra, 63 Cal.4th 522, does not
warrant summary denial of a section 1172.6 petition; instead, the
matter must proceed to an evidentiary hearing].)
Section 1172.6 authorizes a defendant “convicted of felony
murder or murder under the natural and probable consequences
doctrine” (id., subd. (a)) to challenge his murder conviction if, as a
threshold matter, he makes a “prima facie showing” of
entitlement to relief. (Id., subd. (c).) This, in turn, requires a
showing that, among other things, he “could not presently be
convicted of murder” under the amendments to the murder
statutes that became effective on January 1, 2019. (Id., subd.
(a)(3).) These statutes, even as amended, still authorize a
murder conviction, however, based on murder committed by
someone else in the course of a jointly committed felony as long
as the defendant “was a major participant in the underlying
felony and acted with reckless indifference to human life.” (§ 189,
subd. (e)(3).)
As the Attorney General concedes, People v. Strong, supra,
13 Cal.5th 698, is controlling. Strong concluded that “[f]indings
issued by a jury before Banks and Clark” are not preclusive and
“do not preclude a defendant from making out a prima facie case
for relief.” (Id., at p. 710; id. at pp. 716-717.) Strong reasoned
that Banks and Clark “substantially clarified” and narrowed the
terms “major participant” and “reckless indifference.” (Id. at
p. 721.) Moreover, Strong held that it is inappropriate for any
court to evaluate whether substantial evidence supports the
jury’s pre-Banks and pre-Clark finding if the evidence is viewed
through the narrowed Banks and Clark prisms. (Id. at pp. 719-
720.) In sum, Strong held that a pre-Banks and pre-Clark special
4
circumstance finding does not warrant summary denial of a
section 1172.6 petition. Instead the matter must proceed to an
evidentiary hearing. (Id. at p. 720.)
Here, Smith’s special circumstance finding was made prior
to Banks and Clark. Smith is entitled to an evidentiary hearing.
DISPOSITION
The order denying the petition for resentencing is reversed,
and the matter is remanded to the trial court to appoint counsel,
issue an order to show cause, and conduct an evidentiary hearing
pursuant to section 1172.6.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
5
Judith L. Meyer, Judge
Superior Court County of Los Angeles
______________________________
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and David W. Williams,
Deputy Attorneys General, for Plaintiff and Respondent.