People v. McGowen CA1/4 ( 2024 )

Filed 10/10/24 P. v. McGowen CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
PEOPLE OF THE STATE OF
CALIFORNIA,
A170252
Plaintiff and Respondent,
v. (Alameda County Super. Ct.
No. 610425B)
MYKOLAY JIMMY MCGOWEN,
Defendant and Appellant.
Mykolay Jimmy McGowen appeals from his sentence of concurrently
running terms of life with the possibility of parole for two premeditated and
deliberate attempted murders and six years for assault with a firearm to run
concurrently with the life sentence. McGowen’s appointed counsel filed a
brief pursuant to People v. Wende (1979) 25 Cal.3d 436, summarizing the
facts and procedural history, asking this court to independently review the
record to identify any issues warranting review. McGowen filed a
supplemental letter raising the following issues: 1) the evidence was
insufficient to convict him of attempted murder of Christian and Myzil
Waters; 2) the trial court improperly admitted hearsay evidence; and 3) the
kill zone instruction and the prosecutor’s argument misstated the law. As
explained below, all the issues raised by McGowen’s supplemental letter were
addressed in his first appeal in People v. McGowen, case No. A152294.
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McGowen also appeals the denial of his Penal Code section 1172.6
petition pursuant to People v. Delgadillo (2022) 14 Cal.5th 216.1 McGowen
was advised that this court is not required to review the record of a denial of
a section 1172.6 petition where counsel has found no arguable issues, unless
a supplemental letter or brief addressing eligibility for resentencing has been
submitted. McGowen’s supplemental letter did not address his eligibility for
section 1172.6 relief.
Finding no arguable issues on appeal, we affirm. Additionally, we
decline to exercise our discretion to address the denial of McGowen’s
section 1172.6 petition.
FACTUAL AND PROCEDURAL BACKGROUND
We take the facts from our prior opinion in this matter as follows:
Christian and Myzil Waters were standing in front of their house in East
Oakland when shots were fired in their direction. Christian suffered serious
gunshot injuries to his right wrist while a bullet shattered Myzil’s hip.2 At
the time of the shooting, Dan Tran was working at his auto mechanic’s shop,
located between the points from which the shots were fired and where
Christian and Myzil were standing. Tran was shot as he stepped out of a car
that was parked in the front lot of his shop.
Surveillance video from Tran’s shop depicted the shooter and the SUV
in which the shooter arrived at the scene. An Oakland Police Sergeant, who
viewed the surveillance video, was able to locate the SUV. After police
located the SUV, McGowen was arrested. McGowen’s fingerprints were
found on the passenger’s side inside the SUV. In a search of McGowen’s
1 All subsequent statutory references are to the Penal Code.
2 To avoid confusion, we use the victims’ first names. No disrespect is
intended.
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residence, police located a “ ‘memorial shirt’ ” for Isiah Smith and
ammunition that matched the brand of ammunition found at the crime scene.
Another Oakland Police Sergeant testified at trial that he was familiar with
two different groups of young men that congregated in different areas of East
Oakland. The Sergeant testified that a dispute arose between these two
groups, and McGowen believed the other group was responsible for killing
Isiah Smith.
McGowen was found guilty of willful, deliberate, and premeditated
attempted murder of Myzil and Christian Waters (§§ 187, subd. (a), 664,
subd. (a)), attempted murder of Dan Tran (§§ 187, 664), assault with a
semiautomatic firearm (§ 245, subd. (b)), and unlawful possession of a
firearm by a prohibited person (§ 29805). The jury also found true allegations
that McGowen inflicted great bodily injury (§§ 12022, 12022.7, subd. (a)) and
personally discharged a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b)–
(d), (g)) in committing the attempted murders and assault. McGowen was
sentenced to 85 years and eight months to life. McGowen appealed his
conviction. This Division reversed McGowen’s conviction for the attempted
murder of Tran, holding the kill zone theory was not supported by
substantial evidence and that no other theory supported the conviction of
attempted murder of Tran. The remaining convictions were affirmed.
Further, this Division remanded the matter for the trial court to decide
whether to exercise its discretion to strike the firearm enhancements imposed
under sections 12022.53, subdivision (d), and 12022.5, subdivision (a).3
On February 23, 2021, McGowen was resentenced to 38 years and eight
3 At the time of McGowen’s original sentencing, imposition of firearm
enhancements was mandatory, but subsequently the statutes were amended
to afford the trial court discretion to strike the enhancements.
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months to life with the possibility of parole. On August 3, 2022, McGowen
filed a petition for resentencing under former section 1172.6. On August 23,
2023, CDCR requested recall of the sentence based upon two sentencing
errors. The trial court filed an amended abstract of judgment, without the
parties being present, which changed the sentence to 37 years and eight
months to life with the possibility of parole. On October 2, 2023, defense
counsel filed a motion for full resentencing. The trial court granted the
motion. On March 5, 2024, the trial court imposed a sentence of life with the
possibility of parole for the two premeditated and deliberate attempted
murders and six years for the assault with a firearm; all sentences were to
run concurrently.
DISCUSSION
On March 5, 2024, the trial court sentenced McGowen. On April 4,
2024, the trial court denied McGowen’s section 1172.6 petition, and McGowen
appealed. McGowen has filed a timely appeal of his sentence after trial and
remand of the matter by this Division. (See § 1237; see also California Rules
of Court, rule 8.304.) McGowen’s counsel filed a brief stating he can find no
arguable issues. McGowen’s supplemental letter only addresses issues raised
and decided in his first appeal. McGowen does not contend the trial court
erred in its imposition of sentence after the case was remanded. By striking
all sentencing enhancements and imposing concurrent sentences, McGowen
received the minimum prison sentence that could be imposed under the law.
On these facts, we find no error in the judgment or the sentence.
As for McGowen’s appeal from the denial of his section 1172.6 petition,
our Supreme Court has provided the following framework for such appeals:
“When appointed counsel finds no arguable issues to be pursued on appeal:
(1) counsel should file a brief informing the court of that determination,
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including a concise recitation of the facts bearing on the denial of the petition;
and (2) the court should send, with a copy of counsel’s brief, notice to the
defendant, informing the defendant of the right to file a supplemental letter
or brief and that if no letter or brief is filed within 30 days, the court may
dismiss the matter.” (People v. Delgadillo, supra, at pp. 231–232.)
McGowen’s supplemental letter does not address the denial of his section
1172.6 petition. Because McGowen does not raise any issues as to the denial
of his 1172.6 petition, we exercise our discretion to dismiss the appeal as it
relates to the 1172.6 petition.
DISPOSITION
The judgment is affirmed. The appeal is dismissed as to the denial of
McGowan’s section 1172.6 petition.
DOUGLAS, J.*
We concur:
BROWN, P. J.
STREETER, J.
People v. McGowen (A170252)
* Judge of the Superior Court of California, County of Contra Costa,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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