Opinion
A164836
12-13-2022
THE PEOPLE, Plaintiff and Respondent, v. ANDREA FRANCIS MCFALL, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. H57465B)
Petrou, J.
In 2017, defendant Andrea Francis McFall was convicted of the second degree murder of Mahmoud Wahba, together with a true finding that a principal was armed with a weapon during the commission of the murder. McFall was sentenced to an aggregate term of 16 years in prison.
In 2022, the trial court summarily denied McFall's petition for resentencing under former Penal Code section 1170.95, now section 1172.6. The court found McFall had failed to make a prima facie case for relief because she had been convicted under a still valid theory of 1 implied malice second degree murder, and not felony murder. However, we conclude the record of conviction does not conclusively establish the jury's verdict was premised on a theory of implied malice second degree murder. Accordingly, we shall reverse the order denying the petition and remand the matter for further proceedings consistent with this opinion.
All undesignated statutory references are to the Penal Code.
Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Throughout this opinion, we cite to section 1172.6 for ease of reference.
Factual and Procedural Background
The background information set forth below is taken, in part, from our prior opinion affirming McFall's conviction for second degree murder (§ 187, subd. (a)) with a true finding of a related arming allegation (§ 12022, subd. (a)(1)). (People v. McFall (Jul. 30, 2021, A155651) [nonpub. opn.] (McFall), at pp. 4, 24). In addition, we have taken judicial notice of the record in that appeal.
Late on the night of September 28, 2013, and apparently into the early morning hours of the next day, McFall and Alexis Ericiga discussed robbing people. (McFall, supra, A155651, at pp. 2, 3.) McFall was driving her car and they stopped at a bank parking lot. (Id. at p. 3.) Ericiga asked McFall to call the victim, a taxi driver they had previously used, to set up a robbery of the driver. (Ibid.) On an earlier occasion, the taxi driver's flirting had made McFall uncomfortable. When Ericiga learned of the flirting, he threatened to kill the driver, but McFall was able to calm him down. (Id. at p. 2.)
McFall called the taxi driver and falsely told him her car had broken down. (McFall, supra, A155651, at p. 3.) While waiting for the taxi, McFall asked Ericiga to use a taser rather than a gun, but Ericiga refused. (Ibid.) When the taxi driver pulled into the parking lot, Ericiga got out with a gun in the waistband of his pants and the two 2 men spoke for approximately two minutes. (Ibid.) Ericiga then shot the taxi driver once in the head, killing him. (Ibid.) Nothing was taken from the taxi driver. (Ibid.) Ericiga got back into McFall's car and McFall drove the two of them away. (Ibid.) The next day, McFall went to the police and reported the killing. (Ibid.)
McFall was separately charged with murder (§ 187, subd. (a)), together with special circumstances of aiding and abetting the murder and intentionally killing the victim by lying in wait (§ 190.2, subd. (a)(15)) and aiding and abetting robbery felony murder (§ 190.2, subd. (a)(17)(A)); there was also an allegation that a principal in the offense was armed (§ 12022, subd. (a)(1)). (McFall, supra, A155651, at p. 4.) The jury was provided with two theories of liability for second degree murder: (1) felony murder based on McFall aiding and abetting Ericiga's assault of the victim with a deadly weapon; and (2) implied malice murder based on McFall's performance of a dangerous act with conscious disregard for human life (namely, as described by the trial prosecutor, her act of calling the victim to the bank parking lot with the knowledge that Ericiga had previously threatened to kill the victim and was going to confront him). (Id. at pp. 5, 10-11.)
On August 31, 2017, the jury found McFall guilty of second degree murder as a lesser included charge of murder. (McFall, supra, A155651, at p. 4.) The jury also found true the arming allegation. (Ibid.) McFall was sentenced to 15 years to life for second degree murder together with one year for the arming allegation. (Ibid.) On July 30, 2021, we affirmed the conviction on direct appeal (id. at p. 24), and review was denied by our Supreme Court (People v. McFall (Oct. 13, 2021, S270647)). 3
On October 20, 2021, McFall filed a section 1172.6 petition, using "a downloadable form" petition and declaration. The petition included allegations that an information had been filed that allowed the prosecution to proceed under a theory of felony murder, McFall had been convicted of second degree murder, and she could not now be convicted of murder because of changes made to sections 188 and 189, effective January 1, 2019. The petition also included allegations that McFall was not the actual killer; she did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder; and she was not a major participant who had acted with reckless indifference to human life.
Following briefing and argument at a hearing on February 23, 2022, the court summarily denied the petition on the basis that McFall had failed to make a prima facie case. The court accepted the district attorney's position that McFall had been convicted of the still valid theory of implied malice second degree murder, and not either "felony murder" or "aiding and abetting" under the natural and probable consequences doctrine. The court stated its decision was based on our prior opinion's discussion of the theory under which McFall had been convicted, finding it to be an appropriate portion of the record of conviction to consider under People v. Lewis (2021) 11 Cal.5th 952 (Lewis) and People v. Woodell (1998) 17 Cal.4th 448 (Woodell), as well as the "papers" that were filed by the district attorney "supporting that idea."
This appeal ensued.
Discussion
I. Applicable Law and Standard of Review 4
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (SB 1437)" 'to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant . . . who acted with reckless indifference to human life.' (Stats. 2018, ch. 1015, § 1, subd. (f).)" (Lewis, supra, 11 Cal.5th at p. 959.) SB 1437 amended section 188, subdivision (a)(3), to require that all principals to murder must act with express or implied malice to be convicted of that crime, with the exception of felony murder under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) SB 1437 amended section 189, subdivision (e), to provide that for a felony murder conviction the defendant had to be the actual killer, an aider and abettor who acted with the intent to kill, or a major participant who acted with reckless indifference to human life in the underlying felony. (Stats. 2018, ch. 1015, § 3.)
SB 1437 also added section 1172.6, which provided a procedure for defendants already convicted of murder to seek resentencing on the basis that they could not be convicted of murder under the amendments to section 188 and 189 effective January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
Section 1172.6, subdivision (a) states that a person convicted of "felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter," may file a petition for resentencing "when all of the following conditions apply: [¶] (1) A complaint, information, or indictment has been filed against the petitioner that allowed the 5 prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder. [¶] (3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).)
Section 1172.6, subdivision (b) requires the petitioner to submit a declaration that avers eligibility for relief under the statute (based on the requirements of subdivision (a)), states the superior court case number, the year of conviction, and whether the petitioner requests appointment of counsel. (§ 1172.6, subd. (b).)
Section 1172.6, subdivision (c), which establishes how the trial court must evaluate the petition, reads in relevant part: "Within 60 days after service of a petition that meets the requirements set forth in subdivision (b), the prosecutor shall file and serve a response. The petitioner may file and serve a reply within 30 days after the prosecutor's response is served. . . . After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a 6 statement fully setting forth its reasons for doing so." (§ 1172, subd. (c).)
In ascertaining whether a defendant has made a prima facie case for relief, the trial court may look at the record of conviction, which will necessarily inform its "prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) The record of conviction may include, as pertinent to our discussion here, "jury instructions given and the verdicts returned based on them" (People v. Harden (2022) 81 Cal.App.5th 45, 50), as well as our prior decision in McFall, supra, A155651 (Lewis, supra, at p. 971). However, as our Supreme Court "cautioned" in Woodell, supra, 17 Cal.4th 448, "the probative value of an appellate opinion is case specific, and 'it is certainly correct that an appellate opinion may not supply all answers.' (Id. at p. 457.) In reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving weighing of evidence or the exercise of discretion.' '' (Lewis, supra, at p. 972.)
Prior to being renumbered section 1172.6, Senate Bill No. 775, which took effect on January 1, 2022, amended former section 1170.95 to codify certain holdings of Lewis, including the standard for determining the existence of a prima facie case. (Stats. 2021, ch. 551, § 1, subd. (b).)
We review de novo whether the trial court conducted a proper inquiry under section 1172.6, subdivision (c), in ascertaining whether McFall made a prima facie case. (People v. Harrison (2021) 73 Cal.App.5th 429, 437.) 7
II. McFall Made Prima Facie Case for Section 1172.6 Relief
McFall contends the summary denial of her petition was in error as it was based on the trial court's improper reliance on our prior unpublished opinion. We agree.
The record shows McFall made a prima facie case for section 1172.6 relief. She filed a petition that included allegations that an information was filed against her that allowed the prosecution to proceed under a theory of felony murder, she was convicted of murder, and she could not presently be convicted of murder because of changes to section 188 or 189 made effective January 1, 2019. (§ 1172.6, subd. (a); see People v. Contreras (2013) 58 Cal.4th 123, 149 ["a murder charge under section 187 places the defense on notice of, and allows trial and conviction on, all degrees and theories of murder"].)
As a preliminary matter, we note that the jury in this case was instructed it could find McFall guilty of second degree felony murder premised on the underlying felony of assault with a deadly weapon, which was "abrogated as a crime" under People v. Ireland (1969) 70 Cal.2d 522 , and not the amendments to section 188 or 189 effective January 1, 2019. Nonetheless, the parties agree and we concur that the petition allegations, as described above, meet the requirements set forth under subdivision (a) of section 1172.6.
In People v. Ireland, supra, 70 Cal.2d 522, our high court held that "the crime of assault with a deadly weapon cannot be used as the sole predicate crime for a second degree felony-murder conviction because, when a firearm is used in a killing, such an assault is 'an integral part of the homicide.' (Id., at p. 539.)" (People v. Powell (2018) 5 Cal.5th 921, 941-942.)
We also agree with McFall, and accept the People's candid concession, that summary denial of the section 1172.6 petition cannot 8 be upheld based on portions of our prior appellate decision which were premised on the weighing of the evidence presented at the trial. Hence, the trial court could not rely on our statements that (1) after a review of "the verdict and evidence" we found beyond a reasonable doubt that any erroneous instructions on the abrogated theory of felony murder did not contribute to the jury's verdict of second degree murder and (2) given the prosecutor's argument urging the jury "to convict McFall of second-degree implied malice murder," it was "unlikely the jury would have relied on the erroneous [felony murder] theory for its verdict." (McFall, supra, A155651, at pp. 7, 9, 10, italics in original.)
The People argue, however, that summary denial of the section 1172.6 petition can be upheld on the basis that the jury's verdict sheet, which is part of the record of conviction, demonstrates as a matter of law that McFall was not convicted on an abrogated theory of felony murder, but rather she was found guilty of second degree murder because "she 'did unlawfully, and with malice aforethought, murder [the victim].'" (McFall, supra, A155651, at p. 8.) We disagree.
On McFall's direct appeal, we acknowledged the jury had been erroneously instructed on an abrogated theory of second degree felony murder. (McFall, supra, A155651, at p. 6.) However, after "reviewing the verdict and evidence," we concluded beyond a reasonable doubt that the erroneous instructions were harmless as they did not contribute to the jury's verdict of second degree murder. (Id. at p. 7). In support of our ruling that the jury convicted McFall on the still valid theory of implied malice second degree murder, we specifically discussed and relied on the following factors: the jury was properly instructed on the theory of implied malice second degree murder (id. at pp. 7-8); the 9 prosecutor presented no closing argument about second degree felony murder but urged the jury to convict on a theory of implied malice second degree murder (id. at pp. 9-10); and the evidence of implied malice second degree murder was not "weak" and supported a conviction on that basis (id. at pp. 10-12).
In evaluating the prejudicial effect of the felony murder instructions, we also discussed the significance of the verdict sheet used by the jury to record their verdict of second degree murder. (McFall, supra, A155651, at pp. 8-9).
"Significantly, the verdict sheet indicates that the jury made an implied malice finding. It expressly stated McFall was guilty of second degree murder because she 'did unlawfully, and with malice aforethought, murder [the victim].' [(See People v. Aledamat (2019) 8 Cal.5th 1, 13.)] The verdict was further confirmed by all twelve jurors in post-verdict polling. Although the form references 'malice aforethought' rather than 'implied malice,' that distinction is not significant, contrary to McFall's assertions. The jury instructions explained that 'malice' may be either express or implied. The phrase 'malice aforethought' on the verdict sheet thus encompasses implied malice.
"Despite this express language, McFall speculates the jury never affirmatively concluded her second degree murder conviction was based on implied malice. The jury was only presented with one second degree murder boilerplate verdict form identifying malice aforethought, but it was not provided an additional verdict form identifying felony murder as the basis for second degree murder liability. According to McFall, the jury's only option for second degree murder was to conclude it was committed with malice aforethought. This is unconvincing. (Cf. People v. Osband (1996) 13 Cal.4th 622, 690 ['When "the jury has been properly instructed as to the different degrees of the offense, it must be presumed that if [the jurors'] conclusion called for a form of verdict with which they were not furnished, they would either ask for it or write one for themselves" '].) The jury was properly instructed on second degree murder based on malice aforethought, and the verdict form supplied the jurors with the 10 information to make that finding. (Cf. People v. Pearson (2012) 53 Cal.4th 306, 323 [vacating special circumstance finding where jury instructions omitted the requisite mental state and the jury's verdict form did not supply the jury with that missing element].)" (McFall, supra, A155651, at pp. 8-9).
As is evident by a reading of our prior decision, we did not expressly find the jury's verdict sheet to be conclusive evidence that the jury necessarily found McFall guilty of second degree murder under an implied malice theory. For purposes of determining McFall was not prejudiced by the giving of erroneous second degree felony murder instructions, we focused only the "malice aforethought" language in the guilty verdict sheet, presuming that if the jury believed the verdict form did not express its verdict it would have asked for another form or used its own form. We did not address McFall's assertion, specifically raised for the first time in her reply brief on direct appeal, that the language in the verdict sheet should be evaluated in light of the court's instructions concerning alternative theories of murder and how those instructions may have impacted the jury's decision to use the verdict sheet proffered to them.
The form read, in pertinent part, as follows (bolded and italicized language in original): VERDICT OF JURY We, the jury in the above-entitled cause find the defendant, ANDREA FRANCIS MCFALL, GUIL TY of a felony, to wit: SECOND DEGREE MURDER a violation of section 187(a) of the PENAL CODE of California, in that on or about September 23, 2013, in the County of Alameda, State of California, said defendant did unlawfully, and with malice aforethought, murder Mahmoud Wahba, a human being, a lesser included charge to that alleged in Count One of the information.
Under these circumstances, we decline to treat our prior decision as dispositive of the probative effect of the verdict sheet. Being faced with resolving the specific issue we did not address on McFall's direct appeal, we now conclude the jury's use of a verdict sheet containing 11 "malice aforethought" language, does not constitute conclusive evidence that the jury necessarily found McFall guilty of second degree murder under an implied malice theory.
It is well settled that a verdict is to be construed "in light of the issues submitted to the jury and the instructions of the court." (People v. Radil (1977) 76 Cal.App.3d 702, 710, italics added.) Here, the jury instructions specifically allowed the jury to find McFall guilty of second degree murder under either of two theories: (1) "murder [with malice aforethought] in violation of Penal Code section 187;" or (2) "murder, under a theory of felony murder." The jurors were also specifically instructed they did not have to unanimously agree on the theory of murder, but only that they unanimously agree on the degree of murder. Thereafter, consistent with the court's instructions, the jurors were given a verdict sheet to record their guilty verdict of second degree murder, which allowed them to express the degree of murder but described the offense only in language of the valid theory of malice murder.
See footnote 5, ante.
Given that the jurors were told to record their verdicts on the sheets given to them, they could reasonably believe there was no need to question the form of the verdict sheet, though missing reference to felony murder in the description of the offense. Rather, the jurors could reasonably believe their verdict was to encompass a consideration of both theories of murder and the verdict sheet was for the purpose of only recording their verdict as to the degree of murder and did not reflect any special or specific finding as to the theory of murder. This is not a case in which the jurors were given two verdict sheets, one using 12 the phrase "malice aforethought" and one using the phrase "felony murder," which would allow a reasonable inference to be drawn as to the theory of murder based on the jury's use of one form instead of the other form.
In sum, we conclude there is no merit to the People's argument that summary denial of the section 1172.6 petition may be upheld based on the jury's verdict sheet. Contrary to the People's assertion, the verdict sheet does not demonstrate that "the jury must have, as a matter of law, determined there was express or implied malice before it found second degree murder." Our conclusion is bolstered by the fact that on McFall's prior appeal the People candidly admitted that the verdict sheet, while "significant," was not "conclusive proof" as to the theory on which the jurors based their verdict of second degree murder "in part because there was no unused form for felony murder." (See People v. Gentile (2020) 10 Cal.5th 830, 859 (Gentile) [appellate court's conclusion on a second appeal, that after reviewing the record defendant was a direct or active aider and abettor of murder, would have no "preclusive effect" on a later § 1172.6 petition for resentencing of murder conviction given the People's concession on first appeal that there was no basis in the record to conclude beyond a reasonable doubt that the jury's first degree murder verdict was based on a valid theory of directly aiding and abetting the murder and the fact that § 1172.6, subdivision (d)(3) permits the parties to offer" 'new or additional'" evidence in a resentencing proceeding].) 13
Gentile, supra, 10 Cal.5th 830, was abrogated in part on another ground by Stats. 2021, ch. 551, § 2, which amended section 1172.6, subdivision (g), to expressly allow defendants whose convictions are not final to seek relief under SB 1437 on direct appeal.
III. Conclusion
For the reasons stated above, summary denial of the section 1172.6 petition was in error as we cannot conclude that McFall is not entitled to relief as a matter of law based on the record of conviction. Specifically, the record of conviction does not conclusively show that the jury's verdict was necessarily based on the still valid theory of implied malice second degree murder. Because McFall's petition alleges a prima facie case for relief, we reverse and remand for further proceedings consistent with this opinion.
Disposition
The February 23, 2022 order denying the petition for resentencing is reversed and the matter is remanded for further proceedings consistent with this opinion. 14
WE CONCUR: Fujisaki, Acting P.J. Rodríguez, J. 15