People v. McDermott

THE PEOPLE, Plaintiff and Respondent, v. ROHAN MCDERMOTT, Defendant and Appellant.

B302013

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

January 29, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. SA052445)

APPEAL from an order of the Superior Court of Los Angeles County, Mark E. Windham, Judge. Affirmed.

Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.

____________________ Rohan McDermott appeals from the trial court's denial of his Penal Code section 1170.95 petition¹ for vacation of his first degree murder conviction and resentencing. Because McDermott is ineligible for relief as a matter of law, we affirm the court's order.

FACTUAL AND PROCEDURAL BACKGROUND²

1. The murder and McDermott's conviction

In 2004, McDermott and Alcliff Daley planned to steal marijuana from Troy Lewis and Dwane Godoy. After luring the men into Daley's apartment, Daley pointed a gun at Godoy and Lewis, and McDermott taped their hands behind their backs. Daley threatened to kill them and leave their bodies to rot in a closet. When Daley noticed that Godoy had managed to free his hands, he put the gun to Godoy's head and again threatened to kill him. McDermott retaped Godoy's hands and also taped his feet. When McDermott and Daley exited the apartment, Godoymanaged to free himself. But, when he tried to flee, McDermott was at the apartment's front door. McDermott told Godoy, " 'You're not going nowhere.' " The two men struggled, and Godoy got away. McDermott chased him, but he hid underneath a car in a neighboring yard. Lewis did not escape. His body was discovered in the apartment; he had been shot in the forehead, and his hands were bound behind his back with tape.

A jury found McDermott guilty of first degree murder with true findings on special circumstance allegations that the murder was committed during an attempted kidnapping for ransom and an attempted robbery. (§ 190.2, subd. (a)(17)(A) & (B)). It also found true an allegation that a principal was armed during the offense. (§ 12022, subd. (a)(1).) The trial court sentenced McDermott to life in prison without the possibility of parole, plus one year. In 2007, this division affirmed the judgment of conviction. (People v. McDermott (June 28, 2007, B193585) [nonpub. opn.].)

2. Section 1170.95 petition

On September 6, 2019, after passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), McDermott filed a petition for vacation of his murder conviction and resentencing. Using a preprinted form, he checked boxes stating that he had been convicted of murder pursuant to the felony murder rule or the natural and probable consequences doctrine; he was not the actual killer; he did not, with the intent to kill, aid and abet the actual killer; and he could not now be convicted of murder in light of changes to sections 188 and 189 effectuated by Senate Bill 1437. He also checked a box requesting the appointment of counsel.

On September 10, 2019, the trial court summarily denied the petition. McDermott was not present, and was not represented by counsel. The court found McDermott was ineligible for relief as a matter of law because the jury's true findings on the special circumstance allegations established he intended to kill, or was a major participant in the murder and acted with reckless indifference to human life.

On September 27, 2019, McDermott filed a notice of appeal. Attached was a two-page document explaining that he had not acted as a major participant in the murder with reckless indifference to human life, as those terms were defined in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).

DISCUSSION

McDermott contends that the trial court erred by summarily dismissing his petition based on the jury's special circumstance finding, without appointing counsel for him. We disagree.

1. Applicable legal principles

a. Senate Bill 1437

Senate Bill 1437, which took effect on January 1, 2019, limited accomplice liability under the felony-murder rule and eliminated the natural and probable consequences doctrine as it relates to murder, to ensure that a person's sentence is commensurate with his or her individual criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile); People v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review granted Mar. 18, 2020, S260493; People v. Munoz (2019) 39 Cal.App.5th 738, 749-750, 763, review granted Nov. 26, 2019, S258234.)

As relevant here, prior to Senate Bill 1437's enactment, under the felony-murder rule "a defendant who intended to commit a specified felony could be convicted of murder for a killing during the felony, or attempted felony, without further examination of his or her mental state." (People v. Lamoureux (2019) 42 Cal.App.5th 241, 247-248; People v. Powell (2018) 5 Cal.5th 921, 942.) Senate Bill 1437 amended the felony-murder rule by adding section 189, subdivision (e), which provides that a participant in the perpetration of qualifying felonies is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). (Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, which states that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime."

b. Section 1170.95's petitioning procedure

Senate Bill 1437 also added section 1170.95, which created a procedure whereby persons convicted of murder under a now-invalid felony-murder or natural and probable consequences theory may petition for vacation of their convictions and resentencing. A defendant is eligible for relief under section 1170.95 if he meets three conditions: (1) he must have been charged with murder under a theory of felony murder or murder under the natural and probable consequences doctrine, (2) must have been convicted of first or second degree murder, and (3) could no longer be convicted of first or second degree murderdue to changes to sections 188 and 189 effectuated by Senate Bill 1437. (§ 1170.95, subd. (a).)

Evaluation of a section 1170.95 petition requires a multi-step process: an initial review to determine the petition's facial sufficiency; a prebriefing, " 'first prima facie review' " to preliminarily determine whether the petitioner is statutorily eligible for relief as a matter of law; and a second, postbriefing prima facie review to determine whether the petitioner has made a prima facie case that he or she is entitled to relief. (People v. Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th at pp. 327-330, rev.gr.)

When conducting the first prima facie review, the court must determine, based upon its review of readily ascertainable information in the record of conviction and the court file, whether the petitioner is statutorily eligible for relief as a matter of law, i.e., whether he or she was convicted of a qualifying crime, based on a charging document that permitted the prosecution to proceed under the natural and probable consequences doctrine or a felony-murder theory. (Tarkington, supra, 49 Cal.App.5th at pp. 897-898, rev.gr.; Verdugo, supra, 44 Cal.App.5th at pp. 329-330, rev.gr.) If it is clear from the record of conviction that the petitioner cannot establish eligibility as a matter of law, the trial court may summarily deny the petition without appointing counsel. (Tarkington, at pp. 898, 900-902; People v. Torres (2020) 46 Cal.App.5th 1168, 1178 (Torres), review granted June 24, 2020, S262011; Verdugo, at p. 332; People v. Lewis (2020) 43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598.)

If, however, the petitioner's eligibility is not established as a matter of law, the court must appoint counsel and permit briefing to determine whether the petitioner has made a prima facie showing he or she is entitled to relief. (Verdugo, supra, 44 Cal.App.5th at p. 330, rev.gr.; Tarkington, supra, 49 Cal.App.5th at p. 898, rev.gr.) If the petitioner makes such a showing, the court must issue an order to show cause and conduct a hearing to determine whether to vacate the murder conviction and resentence the petitioner on any remaining counts. (§ 1170.95, subds. (c), (d); People v. Nguyen (2020) 53 Cal.App.5th 1154, 1165-1166.) At that hearing, the prosecution has the burden to prove, beyond a reasonable doubt, that the defendant is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)

2. Application here

a. Contentions

McDermott challenges the trial court's ruling on several grounds. First, he argues that his petition made a prima facie showing that he falls within the parameters of section 1170.95; therefore, the court erred by summarily denying his petition and failing to appoint counsel for him. Second, he contends that the trial court erred by examining the record of conviction to determine eligibility prior to the section 1170.95, subdivision (d) hearing stage. In his view, section 1170.95 was "designed . . . to create a different factual record on which to...