People v. McPeters CA2/1 ( 2023 )

Filed 8/31/23 P. v. McPeters CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B321140
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA063427)
v.
TIMOTHY ORYAN
McPETERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, William L. Sadler, Judge. Affirmed.
Benjamin Owens, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Heidi Salerno,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
In 2015, appellant Timothy Oryan McPeters pled no contest
to one count of second degree murder. In 2022, he filed a petition
for resentencing under Penal Code section 1172.6, in which he
requested the appointment of counsel.1 He appeals the superior
court’s summary denial of that petition without the appointment
of counsel. The parties agree the court erred in not appointing
counsel but disagree on whether the error was harmless. We
conclude it was and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. McPeters Pleads No Contest to Murder
In November 2007, the superior court held a preliminary
hearing to determine whether there was probable cause to find
that McPeters had murdered Aneesah Akbar and had sexual
contact with her corpse.2 At that hearing, a sergeant from the
Los Angeles County Sheriff’s Department testified that he had
previously interrogated McPeters regarding the victim’s death.
In this interrogation, McPeters admitted that, after Akbar had
insulted, slapped, and shoved him, he “ended up choking [her]”
until “her body went limp” and she died. McPeters then
1 Undesignated statutory references are to the Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered as
1172.6 without substantive change. (People v. Strong (2022) 13
Cal.5th 698, 708, fn. 2.) For clarity, we use the current statutory
numbering.
2 We grant the People’s unopposed request to take judicial
notice of volume one of the clerk’s transcript from People v.
McPeters (Feb. 28, 2013, B238758) [nonpub. opn.], which contains
the preliminary hearing transcript.
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proceeded to have intercourse with the corpse. At no time during
the interrogation did McPeters claim anyone else had been
present when the crimes were committed. The court found
sufficient evidence that McPeters “was the one who committed
these offenses,” and held him to answer. He was subsequently
charged by information with one count of murder and one count
of sexual contact with human remains.
McPeters was found guilty of both counts and sentenced to
17 years to life. (People v. McPeters, supra, B238758, at p. 7.) In
2013, we affirmed the conviction for sexual contact with human
remains but reversed the conviction for murder. (Id. at p. 21.)
In 2015, McPeters, representing himself, pled no contest to
second degree murder. In accepting McPeters’s plea, the court
asked the parties to agree that “there was and is a preliminary
hearing that was conducted in this matter and that the facts and
circumstances of that preliminary hearing do outline some of the
facts and circumstances of this case to provide a factual basis” for
McPeters’s plea. Both McPeters and the prosecutor agreed. The
court sentenced McPeters to 15 years to life.
B. The Court Summarily Denies McPeters’s Section
1172.6 Petition
In February 2022, McPeters filed a petition to vacate his
conviction under section 1172.6. McPeters alleged that: (1) he
was eligible for relief under section 1172.6; (2) in 2015 he pled
guilty to second degree murder; (3) that he could not now be
convicted of second degree murder under the amended versions of
sections 188 and 189; and (4) with the “abrogation of the ‘natural
and probable consequences doctrine[’] and other theories of
murder under which malice is imputed to a defendant based
solely on that person’s participation in a crime, it was not now
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possible to convict him of second degree murder based on the
known facts of this case.” In an unsigned declaration
accompanying his petition, McPeters averred that “[t]he
prosecution on my case asserted the theory of natural and
probable consequences of an assault to charge me with second
degree murder.” McPeters requested the appointment of counsel.
In April 2022, the superior court summarily denied
McPeters’s petition without appointing counsel, finding that,
“based on the record of conviction,” McPeters “was not prosecuted
nor was he convicted under a theory of criminal liability for
which [section 1172.6] would grant relief.” The court found that
the “record of conviction does not support a prosecution under a
felony murder or a ‘natural and probable consequences’ theory”
and noted that when McPeters entered his plea, he “stipulated to
a factual basis based on the previous trial transcript.” The court
then set forth the “facts of this case,” quoting from our opinion in
People v. McPeters, supra, B238758. The court concluded that it
was “clear from the record of conviction that the defendant ple[]d
guilty based on an express malice theory of the case. There was
no other theory of the case except that the defendant was t[he]
sole killer. There is no factual basis for relief under [section
1172.6]. Further, the defendant ple[]d no contest having been
through trial once and knowing the factual basis of the case and
his subsequent plea after reversal.”
McPeters timely appealed.
DISCUSSION
A. Governing Law
Under section 1172.6, subdivision (a), “A person convicted
of felony murder or murder under the natural and probable
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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 with
the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts 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, 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.”
Senate Bill No. 1437 added the following provision to
section 188: “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).) The bill “eliminates natural and probable
consequences liability for first and second degree murder.”
(People v. Gentile (2020) 10 Cal.5th 830, 849.) It also limits the
application of felony murder to situations where “(1) The person
was the actual killer. [¶] (2) The person was not the actual killer,
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but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual
killer 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, as described
in subdivision (d) of Section 190.2.” (§ 189, subd. (e).)
When a defendant files a facially sufficient petition under
section 1172.6, the trial court must appoint counsel to represent
the petitioner, allow briefing from both sides, and hold a hearing
to determine whether the petitioner has made a prima facie
showing for relief. (§ 1172.6, subds. (b)–(c).) When a superior
court errs in declining to appoint counsel for a defendant in
connection with a section 1172.6 petition, we review for harmless
error under People v. Watson (1956) 46 Cal.2d 818. (People v.
Lewis (2021) 11 Cal.5th 952, 974.)
B. The Superior Court’s Error Was Harmless
The parties agree the superior court erred in failing to
appoint counsel after McPeters filed his petition. They disagree
whether the error was harmless. We conclude that it was.
A defendant “ ‘whose petition is denied before an order to
show cause issues has the burden of showing “it is reasonably
probable that if [he or she] had been afforded assistance of
counsel his [or her] petition would not have been summarily
denied without an evidentiary hearing.” ’ ” (People v. Lewis,
supra, 11 Cal.5th at p. 974.) When the record of conviction
establishes the defendant’s ineligibility for relief as a matter of
law, “there is no reasonable probability [the defendant] would
have obtained a more favorable result if counsel had been
appointed,” and the error is harmless. (People v. Mancilla (2021)
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67 Cal.App.5th 854, 864.) Here, the record of conviction
demonstrates McPeters’s ineligibility for relief as a matter of law.
McPeters pled no contest to second degree murder. “ ‘A
guilty plea [or plea of nolo contendere] admits every element of
the charged offense.’ ” (People v. Rivera (2021) 62 Cal.App.5th
217, 234 (Rivera), quoting In re Chavez (2003) 30 Cal.4th 643,
649.) “Second degree murder is the unlawful killing of a human
being with malice aforethought but without the additional
elements, such as willfulness, premeditation, and deliberation,
that would support a conviction of first degree murder.” (People
v. Knoller (2007) 41 Cal.4th 139, 151.) Therefore, by pleading no
contest to second degree murder, McPeters admitted to the
unlawful killing of a human being with malice aforethought.
Citing Rivera, McPeters argues that even though he pled
no contest to an unlawful killing with malice aforethought, this
does not establish his ineligibility as a matter of law “[b]ecause
this language did not in any way limit the prosecution’s theories.”
Rivera is inapposite. There, the evidence suggested that the
appellant “was present when . . . a fellow gang member . . . shot
[the victim]” and that the appellant “drove [the fellow gang
member] to and from the scene.” (Rivera, supra, 62 Cal.App.5th
at p. 224.) The appellate court held that the appellant’s no
contest plea to second degree murder did not render him
ineligible for relief as a matter of law because “[t]he generic
manner in which murder was charged here did not limit the
People to prosecuting [the appellant] on any particular theories.”
(Id. at p. 233.) In other words, although the appellant had pled
no contest to murder with malice aforethought, at the time the
appellant entered his plea, “malice could be imputed to a
defendant under the felony-murder rule or the natural and
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probable consequences doctrine, meaning that the person did not
need to harbor express or implied malice to be convicted of second
degree murder.” (Id. at p. 234.) Thus, it was possible that, in
pleading no contest to second degree murder, the appellant was
admitting only that the prosecution could prove his accomplice’s
malice should be imputed to the appellant. Such an admission
would not preclude the appellant from relief under section
1172.6. McPeters argues that we should treat his no contest plea
in the same manner. We disagree.
While it is true that McPeters’s no contest plea to second
degree murder would not categorically bar him from relief under
section 1172.6, he is situated differently from the appellant in
Rivera because, unlike that appellant, there was no accomplice
whose malice could have been imputed to McPeters. When
McPeters pled no contest to second degree murder, he agreed
“that the facts and circumstances of th[e] preliminary hearing do
outline some of the facts and circumstances of this case to provide
a factual basis” for his plea. At the preliminary hearing, law
enforcement testified that McPeters had confessed to personally
choking the victim to death after she insulted him. There was no
evidence or theory that anyone else was responsible for her
death. Therefore, pursuant to the facts of the case as presented
at the preliminary hearing, McPeters could not have been tried
under the felony murder doctrine because he did not kill the
victim while engaging in an inherently dangerous felony.3 Nor
3 “ ‘ “Under the felony-murder doctrine, when the defendant
or an accomplice kills someone during the commission, or
attempted commission, of an inherently dangerous felony, the
defendant is liable for either first or second degree murder,
depending on the felony committed.” ’ ” (People v. Powell (2018) 5
(Fn. is continued on the next page.)
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could he have been tried under the natural and probable
consequences doctrine because he was not an aider and abettor.
(See People v. McCoy (2001) 25 Cal.4th 1111, 1117 [“[U]nder the
natural and probable consequences doctrine, an aider and abettor
is guilty not only of the intended crime, but also ‘for any other
offense that was a “natural and probable consequence” of the
crime aided and abetted’ ”].)4
Cal.5th 921, 942.) But McPeters’s assault of the victim could not
serve as the predicate felony. (See People v. Chun (2009) 45
Cal.4th 1172, 1178 [“all assaultive-type crimes . . . merge with
the charged homicide and cannot be the basis for a second degree
felony-murder instruction”].)
4 In an unsigned declaration accompanying his petition,
McPeters alleged “[t]he prosecution on my case asserted the
theory of natural and probable consequences of an assault to
charge me with second degree murder.” To the extent McPeters
is contending the prosecution improperly asserted he
demonstrated malice because the natural and probable
consequences of his assault on the victim was death, McPeters
conflates two different theories.
“Before Senate Bill No. 1437, ‘the natural and probable
consequences doctrine was an exception to the actual malice
requirement’—i.e., the requirement of either express or implied
malice.” (Rivera, supra, 62 Cal.App.5th at p. 231.) “The name of
the doctrine is confusing, since implied malice also incorporates
the idea of ‘natural and probable consequences,’ but the two
concepts are distinct. Whereas implied malice is based on ‘the
“natural and probable consequences” of a defendant’s own act’ the
natural and probable consequences doctrine was ‘a theory of
vicarious liability under which “[a]n aider and abettor [was]
guilty not only of the intended, or target, crime but also of any
other crime a principal in the target crime actually commit[ted]
(the nontarget crime)” ’—including murder—‘ “that [was] a
(Fn. is continued on the next page.)
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Because McPeters cannot demonstrate a reasonable
probability that his petition would not have been summarily
denied without an evidentiary hearing if he had been afforded the
assistance of counsel, he has failed to demonstrate prejudicial
error.
DISPOSITION
The court’s order is affirmed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
natural and probable consequence of the target crime.” ’ ” (Ibid.)
Thus, while defendants can no longer be convicted vicariously of
murder based solely on their participation in a crime, they can
still be convicted of murder under a theory of implied malice,
which definition—including the idea of the natural and probable
consequences of the defendant’s own actions—remains
unchanged. (Id. at p. 232.)
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