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. Before the parties submitted additional briefing and without issuing an order to show cause, 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 We previously affirmed the court’s order in an unpublished opinion, People v. Whittaker (June 1, 2022, F083067), concluding the record established defendant was ineligible for resentencing as a matter of law based on the true finding on the special circumstance allegation. Defendant petitioned for review. The California Supreme Court granted and held the petition and deferred action pending its consideration and…