In re Courtney CA3 ( 2022 )

Filed 4/25/22 In re Courtney 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
----
In re DERRICK COURTNEY, C095212
On Habeas Corpus. (Super. Ct. No. 20HC00556)
BACKGROUND
In 2005, a jury found petitioner Derrick Courtney guilty of first degree murder
(Pen. Code, §§ 187, subd. (a), 189)1 with a finding that a principal was armed with a
firearm in the commission of the offense (§ 12022.2, subd. (a)(1)). Later, after finding
true a special circumstance allegation that defendant had a prior conviction for first
degree murder (§ 190.2, subd. (a)(2)), the trial court sentenced petitioner to state prison
for life without the possibility of parole plus an additional year for the section 12022.2
finding. (People v. Courtney (Jan. 4, 2008, C051548) [nonpub. opn.].)
1 Undesignated statutory references are to the Penal Code.
1
Petitioner’s jury was instructed that it could find him guilty of murder pursuant to
the “natural and probable consequences doctrine” if it concluded he aided and abetted the
target offense of assault with force likely to produce great bodily injury.
In 2014, our Supreme Court decided People v. Chiu (2014) 59 Cal.4th 155 (Chiu),
holding that a murder conviction premised on the natural and probable consequences
doctrine was limited to second degree murder, even if the direct perpetrator is guilty of
premeditated first degree murder. (Id. at p. 166.) In 2017, our Supreme Court
determined that Chiu had retroactive effect. (In re Martinez (2017) 3 Cal.5th 1216,
1222.)
In 2020, petitioner filed a petition for writ of habeas corpus challenging his 2005
first degree murder conviction in light of Chiu. The trial court denied that petition in
January 2021, explaining that “[a]lthough petitioner [was] correct with respect to the
instructions given to his jury,” he “[had to] seek relief from his conviction through a
petition for resentencing under section 1170.95,” not via a habeas corpus petition.
In February 2021, petitioner sought habeas corpus relief in this court, and a panel
of this court denied his habeas corpus petition in March 2021. (In re Courtney (C093496,
petn. den. Mar. 5, 2021).)
Petitioner then sought habeas corpus relief in the California Supreme Court. In an
informal response, the Attorney General argued the petition was untimely because
petitioner “waited over six years before seeking habeas relief based on” Chiu. In
November 2021, the Supreme Court issued an order to show cause before this court why
petitioner is not entitled to relief based on a Chiu claim. (In re Courtney (S267763, petn.
2
filed Mar. 22, 2021, order to show cause issued Nov. 17, 2021).) The Attorney General
filed a formal return conceding the petition’s timeliness2 and meritoriousness.3
Regarding the merits of the petition, the Attorney General concedes the record
from petitioner’s trial does not permit a determination beyond a reasonable doubt that
petitioner’s jury “relied on a theory of murder liability other than the natural and probable
consequences doctrine.” Accordingly, the Attorney General observes, petitioner “is
entitled to th[e] remedy” articulated in Chiu, supra, 59 Cal.4th at page 168⸺vacatur of
his first degree murder conviction and remand to the trial court to allow the People to
elect whether to accept a reduction of the conviction to second degree murder or retry the
petitioner for first degree murder.
Petitioner has not filed a traverse.
We agree with the Attorney General regarding the relief to which petitioner is
entitled.
DISPOSITION
For the reasons stated above, we vacate petitioner’s conviction for first degree
murder and remand the matter to the trial court. The People shall elect within 30 days
whether to accept a conviction of second degree murder (at which point the trial court
2 The Attorney General invokes In re Robbins (1998) 18 Cal.4th 770, 814, footnote 34
for the proposition that when our Supreme Court “disposes of a habeas petition in which
timeliness . . . is at issue without mention of [an] asserted” procedural bar, our Supreme
Court has “ ‘determined that the claim . . . is not barred’ ” as asserted by the respondent
to the habeas corpus petition. We agree.
3 The Attorney General observes the trial court’s January 2021 denial of habeas corpus
relief “misconstrued” the case law and “[f]ailed to recognize the distinction between
relief pursuant to section 1170.95 and relief under Chiu.” We agree. (See In re Cobbs
(2019) 41 Cal.App.5th 1073, 1081 [“Since this habeas corpus action is not a resentencing
petition under section 1170.95, . . . Chiu . . . governs”].)
3
shall enter a new judgment and resentence petitioner accordingly), or to retry petitioner
for first degree murder under the present versions of sections 188 and 189.
/s/
HOCH, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
KRAUSE, J.
4