Opinion
C093340
01-04-2022
THE PEOPLE, Plaintiff and Respondent, v. PATRICK JEROME McPHERSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 11F05321)
ROBIE, J.
Defendant Patrick Jerome McPherson, along with accomplices Patrick Joseph Godines and Travis Monrow Mabson were all convicted of felony murder, attempted robbery, and burglary after their attempt to rob Michael Sanderson in his apartment ended in Sanderson's death. In 2019, defendant filed a petition for resentencing pursuant to Penal Code section 1170.95. The trial court denied the petition on the basis that defendant is ineligible for section 1170.95 relief as a matter of law. Defendant appeals, arguing he demonstrated prima facie entitlement to relief, and that the trial court should have issued an order to show cause and conducted an evidentiary hearing. Finding no error, we affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
For the reasons detailed in our discussion, we need not provide considerable detail of the factual background of defendant's crime.
In 2011, defendant arranged for his friend Jeanette Campbell to strip for Sanderson to help him with a robbery, and Campbell asked her friend Aubry Toews to help her be a distraction. (People v. McPherson (July 25, 2018, C078601) [nonpub. opn.].) Defendant, Godines, and Mabson arrived at the apartment complex after the women entered the apartment. Defendant texted Toews to let her know they were waiting. (Ibid.) Eventually, Toews went outside Sanderson's apartment to signal the men that it was time for the robbery to occur. (Ibid.) Defendant was driving, so he waited in the car while Godines and Mabson went to the apartment. (Ibid.) Godines had a gun.
After entering the apartment, Godines opened the door to the bedroom where Campbell was dancing for Sanderson and turned on the lights. (People v. McPherson, supra, C078601 .) He pointed a gun at Sanderson and demanded to know where Sanderson kept his money. Sanderson moved toward the door and Godines fatally shot Sanderson in the chest. Godines then told Campbell to "[f]ind the money" before he ran out of the apartment. Campbell also ran out of the apartment and followed Godines and Mabson to the car.
Defendant was charged with murder, the allegation of being armed with a firearm at the time of the murder, special circumstances of robbery and burglary during the murder, attempted robbery, the allegation of being armed with a firearm at the time of the robbery; burglary, and the allegation of being armed with a firearm at the time of the burglary. A jury found defendant guilty of all charges, including the special circumstances. The jury instructions provided that in order to find the special circumstances true, the jury must find that although defendant was not the actual killer, he acted with intent to kill, or: "1. The defendant's participation in the crime began before or during the killing; [¶] 2. The defendant was a major participant in the crime; [¶] AND [¶] 3. When the defendant participated in the crime, he acted with reckless indifference to human life." (See CALCRIM No. 703.) Defendant was sentenced to life without the possibility of parole.
In 2019, defendant filed a petition for resentencing pursuant to section 1170.95. After appointing counsel and receiving briefing, the trial court denied the petition on the basis that the jury found true the special circumstances, and "necessarily found that defendant . . . either was the actual killer, intended to kill, or was a major participant who acted in the robbery and burglary with reckless indifference to human life, as the jury was specifically instructed with the 2008 version of CALCRIM No. 703." The court noted that if defendant wanted to determine the sufficiency of the evidence of the special-circumstances findings in light of People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, he would need to file a habeas corpus petition.
DISCUSSION
I
Applicable Law
Senate Bill No. 1437, effective January 1, 2019, revised the felony-murder rule in California "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 in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill amended the definition of malice in section 188, revised the definition of the degrees of murder to address felony-murder liability in section 189, and added section 1170.95, "which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions." (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417, citing Stats. 2018, ch. 1015, §§ 2-4.)
Section 1170.95, subdivision (a) states that a person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court for resentencing "when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019."
Subdivision (b) requires the petitioner to submit a declaration that avers eligibility for relief under the statute (based on the requirements of subdivision (a)) and states the superior court case number, the year of conviction, and whether petitioner requests appointment of counsel. (§ 1170.95, subd. (b).) Section 1170.95, subdivision (c), which dictates how the court must handle the petition, reads: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor's response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause."
Section 1170.95, subdivision (d)(1) provides that a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner as needed should be held within 60 days after the order to show cause; and the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. At the hearing, "[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (Id., subd. (d)(3).)
II
Defendant Is Not Entitled To Relief As A Matter Of Law
Defendant contends the trial court erred in denying his petition because it followed a line of cases that was "wrongly decided" and failed "to effectuate the statutory intent and is a parsimonious approach to the statute based on a hostility to its stated aims." In support of his contention, defendant argues the decisions in Banks and Clark changed the definition of what it means to be an active participant, and acting with reckless indifference to life. He asserts that because he was convicted prior to Banks and Clark, he should be allowed to litigate the elements of special-circumstances felony murder under the "new" standard, and that the law allows him to do so pursuant to a section 1170.95 petition.
The People argue the trial court properly denied resentencing at the prima facie stage because defendant is ineligible as a matter of law given the special-circumstance findings.
Our Supreme Court recently held that the trial court may consider the record of conviction in determining whether the petitioner has made a prima facie showing that the petitioner falls within the provisions of section 1170.95. (People v. Lewis (2021) 11 Cal.5th 952 (Lewis).) The Supreme Court reasoned: "The record of conviction will necessarily inform the trial court's prima facie inquiry under section 1170.95, allowing the court to distinguish petitions with potential merit from those that are clearly meritless. This is consistent with the statute's overall purpose: to ensure that murder culpability is commensurate with a person's actions, while also ensuring that clearly meritless petitions can be efficiently addressed as part of a single-step prima facie review process." (Lewis, at p. 971.)
Following Lewis, we conclude that the trial court properly considered the record of conviction, including instructions to the jury and the jury's verdicts, in concluding that defendant failed to make a prima facie showing.
We also conclude defendant has failed to demonstrate error in the trial court's reliance on the jury's special-circumstance findings. "The requirements for the felony-murder special circumstance did not change as a part of Senate Bill No. 1437, and are identical to the new requirements for felony murder following the enactment of Senate Bill No. 1437. In both instances, the defendant must have either actually killed the victim [citations]; acted with the intent to kill in aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in the killing [citations]; or been a major participant in the underlying felony and acted with reckless indifference to human life [citations]. By finding a special[-]circumstance allegation true, the jury makes precisely the same finding it must make in order to convict a defendant of felony murder under the new law. Because a defendant with a felony-murder special-circumstance could still be convicted of murder, he is ineligible as a matter of law to have his murder conviction vacated." (People v. Galvan (2020) 52 Cal.App.5th 1134, 1140-1141, review granted Oct. 14, 2020, S264284; see People v. Jones (2020) 56 Cal.App.5th 474, review granted Jan. 27, 2021, S265854; People v. Gomez (2020) 52 Cal.App.5th 1, review granted Oct. 14, 2020, S264033; People v. Murillo (2020) 54 Cal.App.5th 160, review granted Nov. 18, 2020, S264978; People v. Allison (2020) 55 Cal.App.5th 449.)
We acknowledge that the author in Gomez has concurred in an opinion disagreeing with the Gomez analysis. (People v. Wilson (2021) 69 Cal.App.5th 665.) This does not alter our analysis.
We recognize some appellate courts have come to contrary conclusions and the issue is currently pending in our Supreme Court. (See People v. Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011; People v. Law (2020) 48Cal.App.5th 811, review granted July 8, 2020, S262490; People v. Smith (2020) 49Cal.App.5th 85, review granted July 22, 2020, S262835; People v. York (2020) 54 Cal.App.5th 250, review granted Nov. 18, 2020, S264954; People v. Harris (2021) 60 Cal.App.5th 939, review granted Apr. 28, 2021, S267802.) We, however, find the Galvan line of cases more persuasive.
We remain unchanged in this view despite the passage of Senate Bill No. 775, signed by the Governor on October 5, 2021. Senate Bill No. 775 amended section 1170.95 to allow a person who was convicted of manslaughter or attempted murder, when the prosecution was allowed to proceed on a theory of felony murder or murder under the natural and probable consequences doctrine, to apply to have the sentence vacated and be resentenced if: 1) the complaint, information, or indictment was filed to allow the 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 person was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the person could have been convicted of murder or attempted murder; and 3) the person "could not presently be convicted of murder or attempted murder because of changes to Section 188 and 189 made effective January 1, 2019." (§1170.95, subd. (a)(1)-(3).) The amendment became effective on January 1, 2022. (Cal. Const., art. IV, § 8, subd. (c).)
Defendant also points to amendments made to subdivision (d)(3) of section 1170.95 for the proposition that the existence of substantial evidence to support a felony-murder special circumstance is insufficient to preclude a person from eligibility for relief under section 1170.95. The problem with defendant's citation to this subdivision is that subdivision (d)(3) pertains to the prosecution's burden at a hearing after a person has already demonstrated a prima facie entitlement to relief as outlined in subdivision (a). Thus, the language of subdivision (d) is irrelevant to the prima facie showing a person must first demonstrate and the issue presented on appeal. (People v. Drayton (2020) 47 Cal.App.5th 965, 980.)
Defendant argues that because the word "presently" was added to subdivision (a)(3) of section 1170.95, the Legislature has demonstrated an "intent that a felony murder special circumstance finding made under law antedating the amendments to Penal Code section 188 and 189, is an erroneous basis for the denial of [his] petition." Subdivision (a)(3), however, explicitly links a person's eligibility to resentencing to the fact he, she, or they "could not presently be convicted of murder or attempted murder because of changes to Section 188 and 189 made effective January 1, 2019." (Italics added.) It is not the changes to sections 188 and 189 that make it so that defendant could not be convicted of murder. As the Galvan court reasoned, "The requirements for the felony-murder special circumstance did not change as a part of Senate Bill No. 1437, and are identical to the new requirements for felony murder following the enactment of Senate Bill No. 1437." (People v. Galvan, supra, 52 Cal.App.5th at p. 1140.)
Indeed, the Legislature's findings and declarations support this conclusion. "The Legislature finds and declares that this legislation does all of the following: [¶] (a)Clarifies that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories. [¶] (b)Codifies the holdings of People v. Lewis (2021) 11 Cal.5th 952, 961-970, regarding petitioners' right to counsel and the standard for determining the existence of a prima facie case. [¶] (c) Reaffirms that the proper burden of proof at a resentencing hearing under this section is proof beyond a reasonable doubt. [¶] (d) Addresses what evidence a court may consider at a resentencing hearing (clarifying the discussion in People v. Lewis, supra, at pp. 970-972)." (Stats. 2021, ch. 551, § 1.) The Legislature's findings and declarations make clear that its amendments do not address the issue of whether a felony-murder special circumstance made before the Banks and Clark rulings is relevant to a finding of eligibility under section 1170.95. We will not impute otherwise and remain firm in our belief that Galvan is persuasive.
If defendant wishes to challenge the sufficiency of the evidence supporting the felony-murder special-circumstance finding, his remedy is to pursue extraordinary relief by way of habeas corpus. As our Supreme Court recently explained, Banks and Clark merely clarified the law. (In re Scoggins (2020) 9 Cal.5th 667, 674.) Where a decision does not announce a new rule of law but merely "clarifies the kind of conduct proscribed by a statute, a defendant whose conviction became final before that decision 'is entitled to post-conviction relief upon a showing that his [or her or their] conduct was not prohibited by the statute' as construed in the decision. [Citation.] 'In such circumstances, it is settled that finality for purposes of appeal is no bar to relief, and that habeas corpus or other appropriate extraordinary remedy will lie to rectify the error.'" (Id. at pp. 673-674.)
DISPOSITION
The order denying defendant's petition for resentencing is affirmed.
We concur: Blease, Acting P. J. Mauro, J.