People v. Cole CA1/5

BACKGROUND

In 2004, a jury convicted Cole of second degree murder (Pen. Code, § 187)1 and possession of a firearm by a felon (former § 12021, subd. (a)(1); see now § 29800, subd. (a)(1)). The jury also found true an enhancement allegation that Cole “personally and intentionally discharged a firearm,” which caused the victim’s death. (§ 12022.53, subd. (d).) He was sentenced to an aggregate

Undesignated statutory references are to the Penal Code. 1 prison term of 40 years to life. This Division affirmed the judgment of conviction on appeal. (People v. Cole (Apr. 21, 2006, A106946) [nonpub. opn.] (Cole).)

After Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015) was enacted more than 10 years later, Cole filed a series of petitions for writ of habeas corpus that sought resentencing pursuant to section 1170.95. Counsel was appointed to represent him in connection with his first petition. The first few of these petitions were denied on the basis that Cole was ineligible for relief because he was the actual killer and was not convicted under a theory of imputed malice. Later petitions were denied on procedural grounds.

Most recently, acting in propria persona,…