People v. Whitfield CA5

INTRODUCTION

In 1999, a jury convicted defendant Timothy Leon Whitfield, in relevant part, of second degree murder and found true allegations he personally used a firearm during the

* Before Levy, Acting P. J., Peña, J. and Snauffer, J. commission of the murder in violation of Penal Code section 12022.5, subdivision (a) and he personally and intentionally discharged a firearm which proximately caused great bodily injury or death to another person, not an accomplice, during the commission of the murder in violation of section 12022.53, subdivision (d). (Undesignated statutory references are to the Penal Code.) In 2019, defendant filed a petition for resentencing pursuant to section 1170.95 in which he asserted he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. The trial court denied the petition based on its conclusion defendant was convicted of second degree murder as the actual killer. On appeal, appointed counsel for defendant asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant filed a…