People v. McPherson CA3

Filed 1/24/23 P. v. McPherson CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C093340
Plaintiff and Respondent, (Super. Ct. No. 11F05321)
v.
PATRICK JEROME McPHERSON,
Defendant and Appellant.
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 Code1 section 1172.6.2 The trial court denied the petition on the basis that
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, former section 1170.95 was renumbered as section
1172.6 without substantive change in text. (Stats. 2022, ch. 58, § 10.) Although
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defendant was ineligible for relief as a matter of law. Defendant appealed, 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. We found no error and
affirmed.
Our Supreme Court granted review but deferred further action pending disposition
in People v. Strong (2022) 13 Cal.5th 698. Following its decision in Strong, our Supreme
Court transferred this matter back to us with direction to vacate our decision and
reconsider in light of Strong. We now conclude defendant demonstrated prima facie
entitlement to relief, and that the trial court should have issued an order to show cause
and conducted an evidentiary hearing. Accordingly, we reverse the order denying
defendant’s petition for resentencing and remand the matter for further proceedings.
FACTUAL AND PROCEDURAL 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. Eventually, Toews went outside Sanderson’s apartment to signal the men that it
was time for the robbery to occur. Defendant was driving, so he waited in the car while
Godines and Mabson went to the apartment. Godines had a gun. (Ibid.)
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,
defendant filed his petition under former section 1170.95, we will refer to the current
section 1172.6 in this opinion.
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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. (Ibid.)
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 1172.6.
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 trial 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 (Banks) and
People v. Clark (2016) 63 Cal.4th 522, he would need to file a habeas corpus petition.
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DISCUSSION
I
Applicable Law
Senate Bill No. 1437 (2017-2018 Reg. Sess.), 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 now section 1172.6, “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 1172.6, 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 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.”
Section 1172.6, subdivision (b) requires the petitioner to submit a declaration that
avers eligibility for relief under the statute (based on the requirements of subdivision (a))
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and states the superior court case number, the year of conviction, and whether petitioner
requests appointment of counsel. Section 1172.6, subdivision (c), which dictates how the
court must handle the petition, reads: “After the parties have had an opportunity to
submit briefings, the court shall hold a hearing to determine whether the petitioner has
made a prima facie case for relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to show cause. If the court
declines to make an order to show cause, it shall provide a statement fully setting forth its
reasons for doing so.”
Section 1172.6, 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. The prosecution bears the
burden of proving beyond a reasonable doubt that the petitioner is ineligible for
resentencing. (§ 1172.6, subd. (d)(3).) At the hearing, “[t]he admission of evidence in
the hearing shall be governed by the Evidence Code, except that the court may consider
evidence previously admitted at any prior hearing or trial that is admissible under current
law, including witness testimony, stipulated evidence, and matters judicially noticed.
The court may also consider the procedural history of the case recited in any prior
appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing
pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay,
unless the evidence is admissible pursuant to another exception to the hearsay rule. The
prosecutor and the petitioner may also offer new or additional evidence to meet their
respective burdens.” (Ibid.)
II
Special Circumstances After Banks And Clark
Section 190.2, subdivision (d) provides that special-circumstance findings based
on the enumerated felonies in paragraph (17) of subdivision (a)⸺which includes robbery
and burglary⸺require that an aiding and abetting defendant must have been a “major
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participant” and have acted “with reckless indifference to human life.” (See Banks,
supra, 61 Cal.4th at p. 798.) Thus, on its face, a special-circumstance finding satisfies
the requirements for accomplice murder liability even after Senate Bill No. 1437. (See
§ 189, subd. (e) [providing where “[a] participant in the perpetration” of a robbery “in
which a death occurs is liable for murder” if proven to have been “a major participant in
the underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2”].) Since defendant’s conviction, however, our Supreme
Court has refined the analysis for determining who qualifies as a major participant acting
with reckless indifference to human life in Banks, supra, 61 Cal.4th 788 and People v.
Clark, supra, 63 Cal.4th 522.
In Banks, supra, 61 Cal.4th at page 803, our Supreme Court identified a series of
considerations, none of which are “necessary, nor is any one of them necessarily
sufficient,” for determining whether a defendant was a major participant. These include
the defendant’s role in planning the crime and in “supplying or using lethal weapons”; the
defendant’s awareness of “particular dangers posed by the nature of the crime”; whether
the defendant was “present at the time of the killing, in a position to facilitate or prevent
the actual murder”; whether the defendant’s own “actions or inaction play[ed] a particular
role in the death,” and what the defendant did after lethal force was used. (Ibid.)
Similarly, in People v. Clark, supra, 63 Cal.4th at page 617, the Court found
“reckless indifference” to “encompass[] a willingness to kill (or to assist in another
killing) to achieve a distinct aim.” It provided a nonexhaustive list of factors to consider
in making this determination, including use or awareness of the presence of a weapon or
weapons, physical presence at the scene and opportunity to restrain confederates or aid
victims, duration of the crime, knowledge of any threat the confederates might represent,
and efforts taken to minimize risks. (Id. at pp. 618-623.)
In Strong, the Supreme Court addressed the impact of Banks and Clark on
section 1172.6 petitions for defendants with special-circumstance findings. The Court
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found “Banks and Clark both substantially clarified the law governing findings under
Penal Code section 190.2, subdivision (d)” as they “represent the sort of significant
change that has traditionally been thought to warrant reexamination of an earlier-litigated
issue.” (People v. Strong, supra, 13 Cal.5th at pp. 706, 717.) Thus, prior special-
circumstance findings made before Banks and Clark “do not preclude a defendant from
making out a prima facie case for relief under Senate Bill [No.] 1437. This is true even if
the trial evidence would have been sufficient to support the findings under Banks and
Clark.” (Strong, at p. 710.) A defendant with a special circumstance who files a section
1172.6 petition may ultimately be found to be ineligible for relief, but it must be
determined beyond a reasonable doubt the defendant was a major participant who acted
with reckless indifference to human life under the Banks/Clark analyses. (Strong, at
p. 720.) Though a special-circumstance finding may be challenged through a habeas
corpus petition, “nothing in section 1172.6 says that a defendant must always do so
before seeking resentencing.” (Strong, at p. 713.)
III
Defendant Is Entitled To Relief
Defendant contends the trial court erred in denying his petition because he was
convicted prior to Banks and Clark. He argues 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 1172.6 petition. Given our Supreme
Court’s holding in Strong, we agree. Although the requirements for the felony-murder
special circumstance did not change as a part of Senate Bill No. 1437, defendant is not
barred from making a prima facie case for relief based on the pre-Banks/Clark special-
circumstance finding and was not required to first challenge the finding via habeas corpus
proceedings. (People v. Strong, supra, 13 Cal.5th at pp. 710, 713.) The trial court’s
statements to the contrary are inconsistent with section 1172.6 as clarified by Strong, and
it was thus error to deny the petition on that ground.
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Accordingly, we reverse the trial court’s order denying the petition and remand for
the trial court to issue an order to show cause and hold an evidentiary hearing.
DISPOSITION
The order denying defendant’s petition for resentencing is reversed and the matter
is remanded for further proceedings consistent with section 1172.6, subdivision (c).
/s/
Robie, Acting P. J.
We concur:
/s/
Mauro, J.
/s/
Duarte, J.
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