People v. Whittaker CA5

INTRODUCTION

Defendant Marcus Dion Whittaker was convicted of first degree murder and robbery in 2008. The jury also found true a felony-murder special-circumstance allegation the murder was committed during the commission or attempted commission of a robbery pursuant to Penal Code section 190.2, subdivision (a)(17)(A). (Undesignated statutory references are to the Penal Code.) Defendant petitioned for resentencing under Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) in 2021. The court denied defendant’s petition based upon the true finding on the special circumstance allegation. On appeal, defendant contends the court erred in denying his petition on this basis. We conclude the record establishes defendant is ineligible for resentencing as a matter of law. Accordingly, we affirm the trial court’s order.

FACTUAL AND PROCEDURAL HISTORY

In 2008, a jury convicted defendant of first degree murder (§ 187; count 1), with a special circumstance that the murder was committed during the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)). The jury found “not true” the charged enhancement alleging defendant intentionally and personally discharged a…