Opinion
C090860
04-26-2021
THE PEOPLE, Plaintiff and Respondent, v. JOSHUA BRANDON McCAVITT, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. P13CRF0303)
Defendant Joshua Brandon McCavitt appeals from the trial court's order denying his petition for resentencing pursuant to Penal Code section 1170.95 and Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). Defendant argues the trial court incorrectly concluded he was ineligible for relief under section 1170.95. We agree with the trial court and affirm the order.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL HISTORY
A.
The Murder
A jury found defendant guilty of second degree murder (§ 187, subd. (a)) and gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)). (People v. McCavitt (Dec. 2, 2016, C076173) [nonpub. opn.] (McCavitt).) The trial court sentenced defendant to an indeterminate term of 15 years to life in prison for the murder, plus a consecutive determinate term of two years for the on-bail enhancement. We affirmed the judgment in an unpublished opinion. (McCavitt, supra, C076173.) We summarize the facts from our unpublished opinion:
It is clear that the trial court relied upon defendant's record of conviction, which includes our prior opinion McCavitt, supra, C076173, in ruling on defendant's petition. We therefore incorporate this opinion by reference as part of defendant's record of conviction (People v. Woodell (1998) 17 Cal.4th 448, 456), which may be properly considered in the trial court's prima facie review. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, fn. 7, review granted Mar. 18, 2020, S260598; People v. Verdugo (2020) 44 Cal.App.5th 320, 333, review granted Mar. 18, 2020, S260493 (Verdugo)). --------
In September 2012, defendant, while intoxicated on alcohol and various drugs, sped his vehicle into oncoming traffic. As the victim slowly drove her car around a curve in the road, defendant crashed his car head-on into the victim's car. The impact propelled defendant's vehicle over the victim's hood and into the cab of the car. Both cars flipped over, and the victim died instantly. Witnesses described the sound of their impact as an explosion.
B.
The Jury Instructions and the Verdict
The jury was instructed that to find defendant guilty of murder, it must find defendant acted with implied malice. The instructions explained that defendant acted with implied malice if he intentionally committed an act, the natural and probable consequence of the act was dangerous to human life, he knew his act was dangerous to human life, and he deliberately acted with conscious disregard for human life. To prove the malice element of the murder charge, the prosecution presented evidence of a prior driving under the influence (DUI) conviction defendant sustained in Hawaii in 2006, along with a video from a DUI course he took in connection with that conviction. (McCavitt, supra, C076173.)
The jury found defendant guilty of murder and gross vehicular manslaughter while intoxicated, which we affirmed on appeal. (McCavitt, supra, C076173.)
C.
The Petition
Defendant, representing himself, filed a form petition for resentencing under section 1170.95. In the petition, defendant declared he met the requirements for relief, specifically, that (1) the complaint, information, or indictment filed against him allowed the prosecution to proceed under a theory of felony murder or the natural and probable consequences doctrine; (2) he was convicted of first or second degree murder under the felony-murder rule or the natural and probable consequences doctrine; and (3) he could not now be convicted of first or second degree murder because of changes to sections 188 and 189, effective January 1, 2019. Defendant also requested the court appoint him counsel. In support of his petition, defendant included the first ten pages of the opening brief from his prior appeal and a partial transcript of the trial court reading his jury instructions aloud to the jury. The partial transcript included the complete jury instructions on the second degree murder charge.
The trial court appointed counsel and set a briefing schedule for the petition. With the court's permission, defendant filed an amended petition. The prosecution filed a response, which argued defendant was not eligible for resentencing. Thereafter, the public defender's office sent a letter to defendant informing him that he did not qualify for relief under section 1170.95, and thus it would not file a reply on defendant's behalf. The court then granted defendant's motion to proceed in propria persona, and defendant filed a reply.
In a written ruling, the trial court denied defendant's petition. It concluded that defendant could still be prosecuted and convicted for murder pursuant to section 188, following the enactment of Senate Bill 1437, because "[d]efendant was the actual killer, there were no other participants in the offense and . . . defendant was found by the jury to have acted with implied malice (i.e., with an abandoned and malignant heart)."
DISCUSSION
A.
Senate Bill No. 1437 and Section 1170 .95
Senate Bill 1437, which became effective on January 1, 2019, was enacted to amend the felony-murder rule and the natural and probable consequences doctrine "to ensure that murder liability is not imposed on a person who [was] 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).) To accomplish this, the bill amended section 188 to require that a principal act with express or implied malice and amended section 189 to state that a person can only be liable for felony murder if (1) the "person was the actual killer"; (2) the person was an aider or abettor in the commission of murder in the first degree; or (3) the "person was a major participant in the underlying felony and acted with reckless indifference to human life." (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2, 3.)
Senate Bill 1437 also created section 1170.95, which "allows a 'person convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts.' (§ 1170.95, subd. (a).) To file the petition, all three of the following conditions must be met: '(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 or second degree murder following a trial . . . . [¶] (3) The petitioner could not be convicted of first or second degree murder because of changes to [s]ection 188 or 189.' (Ibid.)" (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review granted Mar. 18, 2020, S260410.)
Section 1170.95, subdivisions (b) and (c) create a three-step process for evaluating a petitioner's eligibility for relief. (Verdugo, supra, 44 Cal.App.5th at pp. 327-330, review granted; accord People v. Torres (2020) 46 Cal.App.5th 1168, 1177, review granted June 24, 2020, S262011.) First, the trial court determines whether the petition is facially sufficient under section 1170.95, subdivision (b)(2), and may rely on the record of conviction to do so. (Verdugo, at pp. 327-330.) If the petition is facially sufficient, then, in the second step, the trial court determines under section 1170.95, subdivision (c) whether the petitioner has made "a prima facie showing that the petitioner falls within the provisions of this section." (§ 1170.95, subd. (c).) "The court's role at this stage is simply to decide whether the petitioner is ineligible for relief as a matter of law, making all factual inferences in favor of the petitioner." (Verdugo, at p. 329.) In making this inquiry, the trial court may again examine "readily available portions of the record of conviction," including the "complaint, information or indictment filed against the petitioner; the verdict form or factual basis documentation for a negotiated plea; and the abstract of judgment," as well as the jury instructions and any appellate opinion in the case. (Id. at pp. 323, 329-330, 333.)
If the trial court determines that the petitioner is not ineligible for relief as a matter of law, the evaluation of the petition proceeds to the third step, a "second prima facie review," in which "the court must direct the prosecutor to file a response to the petition, permit the petitioner (through appointed counsel if requested) to file a reply and then determine, with the benefit of the parties' briefing and analysis, whether the petitioner has made a prima facie showing he or she is entitled to relief." (Verdugo, supra, 44 Cal.App.5th at pp. 328, 330, review granted.) In this second prima facie review, the trial court must take the petitioner's factual allegations as true and make a preliminary assessment whether he or she would be entitled to relief if they were proved. (Id. at p. 328; see also People v. Drayton (2020) 47 Cal.App.5th 965, 976.)
"If, accepting the facts asserted in the petition as true, the petitioner would be entitled to relief because he or she has met the requirements of section 1170.95 [subdivision] (a), then the trial court should issue an order to show cause . . . [and] conduct a hearing pursuant to the procedures and burden of proof set out in section 1170.95, subd[ivision] (d)." (People v. Drayton, supra, 47 Cal.App.5th at pp. 980-981.)
B.
Defendant's Eligibility for Relief
Defendant argues the trial court erroneously denied his petition because the jury could not have found he acted with implied malice based on an "abandoned and malignant heart" given that the jury was not instructed with that particular language. Instead, citing to the phrase "natural and probable consequences" in the jury instructions, he argues the jury was instructed on the natural and probable consequences doctrine. Defendant further contends the trial court erred when it concluded without any additional evidence that defendant could still be prosecuted and convicted of murder after Senate Bill 1437. Defendant's arguments are not persuasive.
By its terms, only "[a] person convicted of felony murder or murder under a natural and probable consequences theory" is eligible for relief under section 1170.95. (§ 1170.95, subd. (a).) Here, the record of conviction, and specifically the jury instructions, show that the jury was not instructed on the felony-murder or natural and probable consequences theory. Rather, the jury instructions and verdict show that defendant was prosecuted and convicted of second degree murder based on a theory of implied malice. And because defendant was convicted on a theory of implied malice, the amendments made by Senate Bill 1437 have no effect on defendant's conviction.
Senate Bill 1437's amendments to section 188 did not repeal the law imposing criminal liability for implied malice murder. As amended, section 188 now provides: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Here, the jury instructions stated that the jury could find defendant guilty of murder only if it found he acted with malice aforethought. By finding defendant guilty of murder, the jury necessarily found he acted with implied malice. Therefore, the amendments made by Senate Bill 1437 had no effect on defendant's conviction, and as a matter of law he is not entitled to resentencing under section 1170.95.
Defendant argues the "natural and probable consequences" language in the jury instructions show that he was prosecuted under a natural and probable consequences theory. Defendant is mistaken. A person acts with implied malice "when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses." (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) Mirroring this language from caselaw, defendant's jury instruction on implied malice included the phrase "natural and probable consequences." However, the instructions' use of this phrase is separate and distinct from the natural and probable consequences doctrine.
Indeed, there would be no basis to instruct the jury on the natural and probable consequences doctrine because that doctrine is clearly inapplicable to the facts of this case. The natural and probable consequences doctrine makes " 'a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime) [including murder] committed by the confederate as a "natural and probable consequence" of the crime originally aided and abetted.' [Citation.]" (People v. Johns (2020) 50 Cal.App.5th 46, 58.) Defendant was the killer. He did not aid and abet another person in the commission of a separate, target crime. Thus, defendant could not have been prosecuted or convicted under a natural and probable consequences theory.
DISPOSITION
The order is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
RENNER, J.