People v. Pinckney CA2/4

Filed 8/19/22 P. v. Pinckney CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR THE PEOPLE, B314648 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA299868) v. TIMOTHY PINCKNEY, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Charlaine F. Olmedo, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda V. Lopez and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________ In 2008, a jury convicted appellant Timothy Pinckney of first degree murder under the felony murder doctrine, but found not true a rape-murder special circumstance allegation. In 2019, appellant petitioned for resentencing under Penal Code section 1172.6 (former section 1170.95),1 arguing he was not the actual killer and had not acted with intent to kill; he further argued that there was insufficient evidence he was a major participant in the crime who acted with reckless indifference to human life. (See generally People v. Banks (2015) 61 Cal.4th 788 (Banks); People v. Clark (2016) 63 Cal.4th 522 (Clark).) The trial court disagreed and denied the petition after an evidentiary hearing. On appeal, appellant contends that there was insufficient evidence to support the trial court’s denial of his petition. In so contending, appellant asks us to eschew the substantial evidence standard of review and to apply principles of collateral estoppel or issue preclusion to the jury’s prior rejection of the special circumstance allegation. We discern no reversible error. First, we find substantial evidence to be the appropriate standard of review for section 1172.6, subdivision (d)(3) findings. Second, we need not address appellant’s issue-preclusion-related contention as we conclude there was sufficient evidence to support the trial court’s finding that appellant acted with reckless indifference to human life— an issue not previously presented to the jury. Accordingly, we affirm the trial court’s order. 1 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). Undesignated statutory references are to the Penal Code. 2 BACKGROUND A. Procedural Background 2 In 2008, following a jury trial, appellant was convicted of one count of first degree murder (§ 187, subd. (a)). (People v. Pinckney (Oct. 22, 2009, B212120) [2009 LEXIS 8404 at p. *1, nonpub. opn.] (Pinckney I).) The only theory of murder presented by the prosecution was that of felony murder committed during a rape or attempted rape.3 (Pinckney, supra, 2009 LEXIS 8404 at p. *3.) The jury found not true a rape-murder allegation under section 190.2, subdivision (a)(17) …

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