People v. McFadden CA1/3 ( 2022 )

Filed 9/2/22 P. v. McFadden CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A162697
v.
DARREN JERRELL McFADDEN, (Solano County Super. Ct.
Defendant and Appellant. No. FCR306923)
MEMORANDUM OPINION1
Darren Jerrell McFadden appeals from the trial court’s summary
denial of his petition for resentencing. (Former § 1170.95.) We affirm.
We resolve this case by memorandum opinion pursuant to California
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Standards of Judicial Administration, section 8.1, reciting only those facts
necessary to resolve the issue raised. Undesignated statutory references are
to the Penal Code. Our brief factual summary is drawn from our unpublished
opinion in McFadden’s prior appeal, People v. McFadden (Apr. 5, 2017,
A146219), and we take judicial notice of the record in that appeal. (See
People v. Lopez (2022) 78 Cal.App.5th 1, 13.) Effective June 30, 2022, section
1170.95 was renumbered section 1172.6. (See Stats. 2022, ch. 58, § 10.)
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The prosecution charged McFadden and several other defendants —
including Danny Jeffreys, Timothy Mitchell, and Trayvon Wayfer — with
first degree murder and attempted murder arising out of a shooting at an
apartment complex in Fairfield. The operative information alleged Jeffreys
personally discharged a firearm in the commission of both offenses.
(§ 12022.53, subd. (c).) At a joint trial with Jeffreys, the prosecution
presented evidence that McFadden drove his car to the apartment complex,
and that he was present when the shooting occurred. After the shooting,
McFadden conferred with Wayfer, then drove away from the apartment
complex with Mitchell.
The trial court instructed the jury on direct aiding and abetting and on
aiding and abetting intended crimes (CALCRIM Nos. 400, 401). It also
instructed the jury on murder and attempted premeditated murder
(CALCRIM Nos. 520, 521, 600, 601). The jury was not instructed on felony
murder or on the natural and probable consequences doctrine. In 2014, the
jury convicted McFadden of first degree murder and attempted premeditated
murder. In 2017, this court affirmed the convictions but ordered a limited
remand under People v. Franklin (2016) 63 Cal.4th 261.
In late 2019, McFadden petitioned for resentencing under former
section 1170.95. The prosecution opposed the petition. At an August 2020
hearing — where McFadden was represented by counsel — the parties
submitted on their briefing. The trial court summarily denied the petition,
finding McFadden “was convicted as an aider or abettor” and that he was
neither prosecuted nor convicted under “a theory of felony murder or murder
under [the] natural and probable consequences doctrine; rather the evidence
established [McFadden] acted with requisite intent upon which a murder
conviction could stand.”
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McFadden insists the trial court erred by summarily denying his
resentencing petition. We disagree.
We begin by briefly describing recent changes to the law governing
accomplice liability for murder. In 2018, the Legislature “eliminated the
natural and probable consequences doctrine as a basis for finding a defendant
guilty of murder [citation] and significantly narrowed the felony-murder
exception to the malice requirement for murder.” (People v. Coley (2022)
77 Cal.App.5th 539, 543 (Coley).) The Legislature also enacted former section
1170.95, which outlines a procedure for individuals convicted of felony
murder or murder based on the natural and probable consequences doctrine
to “petition the sentencing court to vacate the conviction and be resentenced
on any remaining counts if they could not now be convicted of murder under
the law as amended.” (Coley, at p. 543.) In 2021, the Legislature enacted
Senate Bill No. 775 (2021–2022 Reg. Sess.; Senate Bill 775), which amended
former section 1170.95 to allow individuals to seek relief for murder
convictions based on any “ ‘theory under which malice is imputed to a person
based solely on that person’s participation in a crime.’ ” (Coley, at p. 544;
former § 1170.95, subd. (a)(1).)
Applicable here, Senate Bill 775 also added requirements to the process
for evaluating whether a petitioner has made a prima facie showing of
eligibility for relief. After “a facially valid petition is filed and counsel is
appointed, the parties will submit briefing and the trial court must hold
a hearing on the issue of whether a prima facie case has been made.” (Coley,
supra, 77 Cal.App.5th at p. 544; former § 1170.95, subd. (c).) In determining
whether a prima facie case has been made, the court can consider the record
of conviction, which “may include the underlying facts as presented in an
appellate opinion” (People v. Lopez, supra, 78 Cal.App.5th at p. 13; People v.
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Lewis (2021) 11 Cal.5th 952, 971–972) and the instructions given to the jury
(People v. Soto (2020) 51 Cal.App.5th 1043, 1055). Summary denial of the
petition is appropriate where the record of conviction establishes the
petitioner is ineligible for resentencing as a matter of law, e.g., when — as
here — the record of conviction establishes the petitioner “was convicted of
first degree murder as an aider and abettor with intent to kill” (People v.
Estrada (2022) 77 Cal.App.5th 941, 945 (Estrada)) and/or of attempted
murder on a direct aiding and abetting theory. (Coley, at p. 548.)
McFadden acknowledges he was convicted of first degree murder and
attempted premeditated murder, and that the jury was not instructed on
felony murder or on the natural and probable consequences doctrine. He
nevertheless contends he is entitled to an evidentiary hearing on his
resentencing petition because he was convicted “upon a theory by which
malice was imputed to him.” This argument has been considered — and
rejected — in at least two published opinions.
For example, in Coley, supra, 77 Cal.App.5th 539, the defendant
petitioned for resentencing on his convictions for second degree murder and
attempted murder without premeditation. (Id. at pp. 541–542.) The trial
court summarily denied the petition on the grounds that “the jury had not
been instructed on felony murder or murder under a natural and probable
consequences theory. Although acknowledging that the instructions on
implied malice contained a natural and probable consequences component,
the court concluded that the record of conviction showed the jury had found
express malice, i.e., a specific intent to unlawfully kill, when it convicted [the
defendant] of attempted murder.” (Id. at p. 545.)
A division of this court affirmed. (Coley, supra, 77 Cal.App.5th at
p. 549.) The Coley court held the defendant was ineligible for resentencing
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because he was convicted of second degree murder with express malice. (Id.
at p. 547.) Coley explained: “As a review of the record on conviction reveals,
[the defendant] was convicted of murder based on his aiding and abetting of
the same shooting that gave rise to the attempted murder conviction. The
jury was instructed by CALCRIM No. 600 that attempted murder requires
a determination that ‘the defendants intended to kill that person.’
[Citations.] An intent to kill is the equivalent of express malice, at least
when there is no question of justification or excuse, and by finding [the
defendant] guilty of attempted murder, the jury necessarily found he had
personally harbored intent to kill or express malice when he aided and
abetted the second degree murder.” (Id. at pp. 547–548.) Coley also
concluded the defendant was not entitled to resentencing on his attempted
murder conviction because “[d]irect aiding and abetting remains a valid
theory of attempted murder” notwithstanding the enactment of Senate Bill
775. (Coley, at p. 548.)
Estrada, supra, 77 Cal.App.5th 941 reached a similar conclusion.
There, the trial court concluded the defendant — who was convicted of first
degree murder — was ineligible for resentencing “as a matter of law because
the record demonstrated he was convicted as an aider and abettor.” (Id. at
p. 943.) The defendant appealed, arguing he could have been convicted of
murder “under a natural and probable consequences theory” because the
court instructed the jury with a portion of CALCRIM No. 400 providing that
under some “ ‘circumstances, if the evidence establishes aiding and abetting
of one crime, a person may also be found guilty of other crimes that occurred
during the commission of the first crime.’ ” (Estrada, at pp. 945–946,
fn. omitted.) The Estrada court disagreed. It held that instructing the jury
with language from CALCRIM No. 400 did not render the defendant eligible
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for relief under former section 1170.95. As Estrada observed, the jury was
instructed with CALCRIM No. 401 — and not on the natural and probable
consequences doctrine — and the prosecution argued the defendant intended
to commit the charged offenses. (Estrada, at pp. 946–948.)
Here too. Given the charges, the jury instructions, the
prosecutor’s arguments, and the verdict, it is apparent the jury determined
McFadden was a direct aider and abettor who knew Jeffreys intended to
commit murder and attempted murder and, with that knowledge, aided and
abetted the crimes. Notably, McFadden fails to acknowledge Coley and
Estrada, even though both cases were decided well before McFadden filed his
reply brief (and Coley was discussed in the Attorney General’s brief). We find
Coley and Estrada persuasive and we adopt their reasoning.2
The record of conviction shows McFadden was convicted as a direct
aider and abettor, and not on a theory of murder under which malice was
imputed to him based solely on his participation in a crime. Accordingly, the
trial court did not err by summarily denying his petition for resentencing.
DISPOSITION
The order denying McFadden’s petition for resentencing is affirmed.
2 McFadden’s reliance on People v. Langi (2022) 73 Cal.App.5th 972 is
unavailing for the reasons discussed in Coley, among them that McFadden
was convicted of first degree murder and attempted premeditated murder
with express — rather than implied — malice. (Coley, supra, 77 Cal.App.5th
at p. 547; see also People v. Clements (2022) 75 Cal.App.5th 276, 301
[distinguishing Langi].)
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Fujisaki, J.
A162697
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