People v. Powell CA2/7

INTRODUCTION

A jury convicted Michael Powell under the provocative act doctrine of the murder of Dennis Smith. Twenty years later, Powell filed a petition for resentencing under Penal Code section 1170.95,1 which authorizes certain defendants convicted of felony murder or murder under the natural and probable consequences doctrine to petition for recall of their sentences and resentencing. Powell argues that, although he was not convicted of felony murder, he was convicted of something similar. Similar, however, is not the same. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Powell and Smith Try To Rob a Store; Smith Is Killed In March 1999 Powell, armed with a gun and a magazine of bullets, and Smith entered a price-point retail store that historically sold merchandise for less than one dollar. As they tried to rob the store, Powell and Smith fought with the store manager and one of her grandsons. Another grandson got a gun from the manager’s purse and shot at the two would-be robbers, killing Smith. (People v. Powell (July 16, 2001, B139146) [nonpub. opn.] (Powell I).)

Statutory references are to the Penal Code.

2 B. A Jury Convicts Powell of…