People v. Eagan CA2/7

Filed 10/21/21 P. v. Eagan CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306104
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA338308)
v.
ANTHONY EAGAN,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Renee F. Korn, Judge. Affirmed.
David Kenner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Amanda Lopez and Stacy S.
Schwartz, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________
Anthony Eagan, convicted in 2012 of first degree murder
and other crimes following the shooting death of one of his
confederates during a burglary and unsuccessful home invasion
robbery, appeals the superior court’s denial of his petition for
resentencing pursuant to Penal Code section 1170.951 without
issuing an order to show cause and holding an evidentiary
hearing. In this court’s recent decision in People v. Mancilla
(2021) 67 Cal.App.5th 854 we explained a murder conviction
under the provocative act doctrine, as here, requires proof the
defendant personally harbored the mental state of malice and is
not affected by the accomplice liability reform of Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015) (Senate
Bill 1437). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Eagan’s Conviction for Provocative Act Murder
As described in our opinion affirming Eagan’s judgment of
conviction on direct appeal (People v. Eagan (Dec. 30, 2013,
B240663) [nonpub. opn.]), after Sharon Cole drove into her
attached garage at 10:30 p.m. on July 15, 2006, Tyrone McDougal
approached the car’s driver-side window, pointed a gun at Cole
and yelled at her to get out of the car. Cole screamed for her son,
Ajani Campbell, who lived with her. Campbell found his gun,
loaded it and moved cautiously toward the garage.
As Cole followed McDougal’s order and got out of her car,
she saw a second man (Eagan) standing behind McDougal and a
1 Statutory references are to this code.
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third man in the frame of the garage door facing the street.
McDougal called out, “Watch it, blood,” which Campbell
understood to mean there was someone else in the garage.
Campbell looked through the doorway connecting the
garage and house and saw Eagan with a gun pointed toward the
door. Eagan fired at Campbell. Campbell stepped into the
garage and raised his gun; Eagan shot again, hitting Campbell in
the arm. Campbell fired three shots at Eagan, who dropped to
the floor. Campbell then fired one shot at McDougal. Both
McDougal and Eagan scrambled out of the garage and fled in a
dark four-door vehicle. Campbell fired at the car as it drove
away.
Just before midnight the following day, sheriff’s deputies
responded to a vehicle fire about a mile and one-half from Cole’s
house. The car was registered to McDougal, whose body was
found in the backseat. There was a bullet hole in the driver’s
headrest and several other bullet holes in the car’s body.
Campbell identified Eagan at the preliminary hearing and
at trial as the man who had shot at him. DNA evidence
established that blood found in the driveway of Cole’s residence
and on the handle above the back seats in McDougal’s car was
Eagan’s.
The jury convicted Eagan of first degree murder (§ 187,
subd. (a)), attempted robbery (§§ 211, 664), burglary (§ 459) and
assault with a semiautomatic firearm (§ 245, subd. (b)) and found
true firearm-use enhancement allegations (§ 12022.53, subds. (b),
(c), (d)) and a felony-murder special-circumstance allegation
(§ 190.2, subd. (a)(17)). In a bifurcated proceeding the trial court
found Eagan had multiple prior serious felony convictions. He
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was sentenced to an aggregate indeterminate state prison term of
life without parole plus 115 years six months to life.
We affirmed the judgment on appeal. Explaining “[t]he
prosecutor pursued a provocative act murder theory in this case
based on Eagan’s shooting at Campbell during the burglary
which provoked Campbell to respond with lethal force, killing
McDougal,” we rejected Eagan’s contention his actions could not
support a finding of first degree murder: “As our Supreme Court
noted in People v. Gonzalez (2012) 54 Cal.4th 643, 661,
footnote 13, two theories support a first degree murder conviction
under this doctrine: ‘(1) the defendant’s provocative act was a
murder or attempted murder that the defendant personally
committed willfully, deliberately, and with premeditation’ and
‘(2) the defendant’s provocative act caused death during the
defendant’s intentional commission of one of the enumerated
felonies in section 189.’ Burglary is a felony listed in section 189.
[¶] If the provocative act goes beyond that necessary to commit
the offense (burglary in this case), a killing that occurs as a result
of the provocative act in the commission of the burglary is a first
degree murder.” (People v. Eagan, supra, B240663.) Because
assault and discharge of a firearm are not elements of burglary,
we held, the evidence was sufficient to support the jury’s finding
that Eagan’s shooting at Campbell was a provocative act
“evidencing malice” that caused Campbell to respond with lethal
force. (Ibid.)2
2 We also rejected Eagan’s claims of instructional error and
ineffective assistance of counsel and his contention he was
entitled to a jury trial on the issue of direct victim restitution.
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2. Eagan’s Section 1170.95 Petition for Resentencing
On April 22, 2019 Eagan, represented by counsel, filed a
petition for resentencing under section 1170.95, alleging he had
been convicted of first degree felony murder and could not now be
convicted of murder under amended section 189. On August 13,
2019 the superior court appointed a private investigator, at
Eagan’s request, to assist his counsel in the preparation of the
matter. On August 19, 2019 the district attorney filed an
opposition memorandum, arguing section 1170.95 was
unconstitutional and Eagan was, in any event, ineligible for
resentencing based on the jury’s felony-murder special-
circumstance finding. Eagan’s appointed counsel filed a reply
memorandum on November 22, 2019, addressing both the
constitutional issues and Eagan’s eligibility for resentencing
relief.
On December 4, 2019, after the prosecutor withdrew the
challenge to the constitutionality of section 1170.95, the superior
court stated it had tentatively decided Eagan did not qualify for
relief under section 1170.95 “based on the provocative acts
murder.” The court gave Eagan leave to file an additional brief on
that issue. No further brief was filed.
A hearing was held on Eagan’s petition on March 12, 2020.
The court denied the petition, stating a memorandum of decision
would be forthcoming.
The court filed its 15-page memorandum of decision on
March 23, 2020. After reciting the facts of the case, as set forth
in our opinion on direct appeal, and briefly discussing
Senate Bill 1437’s modification of the law concerning accomplice
liability for murder, the court wrote, “Under the facts in this case
the petitioner’s provocative act was his personal use of a firearm
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to initiate a gun battle with Victim Campbell. Petitioner was not
convicted of felony murder nor was his conviction based on his
aiding and abetting a burglary or any other ‘target crime.’
Petitioner personally was the gun wielding shooter who fired the
first shots at Campbell and caused Campbell, the victim, to
respond with privileged lethal force, killing McDougal.” The
court explained the jury had been instructed with CALCRIM
No. 560, the provocative act murder doctrine, and found Eagan
guilty of murder on that basis. “Petitioner's conviction of first
degree murder was based on the Provocative Acts Doctrine.
Section 1170.95 does not provide grounds for vacating a murder
conviction on these facts.”
Reiterating that under People v Gonzalez, supra, 54 Cal.4th
643, “[w]hen someone other than the defendant or an accomplice
kills during the commission or attempted commission of a crime,
the defendant is not liable under felony-murder principles,” but
may be prosecuted for provocative act murder, the court
alternatively ruled, even if Eagan had been convicted of felony
murder, he would be ineligible for resentencing under amended
sections 188 and 189 as a major participant in the underlying
burglary or attempted robbery who had acted with reckless
indifference to human life as those terms were clarified in People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark).
Eagan filed a timely notice of appeal.
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DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as it applies to aiding and
abetting and significantly narrowing the felony-murder exception
to the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e)(3); People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis);
see People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).)
It also authorized, through new section 1170.95, an individual
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 he or she could not have been convicted of murder
because of Senate Bill 1437’s changes to the definition of the
crime. (See Lewis, at p. 957; Gentile, at p. 843.)
If a petition for resentencing contains all the information
required by section 1170.95, subdivision (b)(1)(A), the court must
appoint counsel to represent the petitioner, if requested; direct
the prosecutor to file a response to the petition; permit the
petitioner to file a reply; and determine if the petitioner has made
a prima facie showing he or she is entitled to relief. (§ 1170.95,
subd. (c); see Lewis, supra, 11 Cal.5th at pp. 962-963.) In
determining whether the petitioner has carried this burden, the
superior court properly examines the record of conviction,
“allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.” (Lewis, at p. 971.)
Appellate opinions “are generally considered to be part of the
record of conviction” (id. at p. 972), as are the jury instructions
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given at trial (see, e.g., People v. Soto (2020) 51 Cal.App.5th 1043,
1055, review granted Sept. 23, 2020, S263939).
The prima facie inquiry under section 1170.95,
subdivision (c), “is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause. . . . However, if the record, including the
court’s own documents, contain[s] facts refuting the allegations
made in the petition, then the court is justified in making a
credibility determination adverse to the petitioner.” (Lewis,
supra, 11 Cal.5th at p. 971, internal quotation marks omitted];
see People v. Daniel (2020) 57 Cal.App.5th 666, 675, review
granted Feb. 24, 2021, S266336 [any error in denying petition at
prima facie stage without appointing counsel is harmless if the
record of conviction “conclusively demonstrates” petitioner is
ineligible for relief].)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 230,
review granted Mar. 10, 2021, S266652; People v. Lopez (2020)
56 Cal.App.5th 936, 949, review granted Feb. 10, 2021, S265974;
but see People v. Duke (2020) 55 Cal.App.5th 113, 123, review
granted Jan. 13, 2021, S265309.) The prosecutor and petitioner
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may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens. (See Gentile, supra,
10 Cal.5th at pp. 853-854.)
2. Eagan, Convicted of Provocative Act Murder, Is
Ineligible for Resentencing Relief as a Matter of Law
Section 1170.95 authorizes a petition for resentencing only
by individuals convicted of murder under the felony-murder rule
or the natural and probable consequences doctrine. Provocative
act murder is neither. As we held in People v. Mancilla, supra,
67 Cal.App.5th at pages 867-868, “[A] murder conviction under
the provocative act doctrine requires proof the defendant
‘personally harbored the mental state of malice.’ [Citations.]
That is, the defendant (or his or her accomplice) must have acted
with implied malice—the defendant knew his or her conduct
endangered the life of another and acted with conscious disregard
for life. [Citations.] Thus, section 188, subdivision (a)(3), which
provides malice shall not be imputed to a person based solely on
his or her participation in a crime, does not affect the theory of
provocative act murder.” (Accord, People v. Swanson (2020)
57 Cal.App.5th 604, review granted Feb. 17, 2021, S266262;
People v. Johnson (2020) 57 Cal.App.5th 257; People v. Lee (2020)
49 Cal.App.5th 254, review granted July 15, 2020, S262459;
see People v. Soto, supra, 51 Cal.App.5th at p. 1057, review
granted [“Senate Bill No. 1437 changed the circumstances under
which a person could be convicted of murder without a showing of
malice, but it did not exclude from liability persons convicted of
murder for acting with implied malice”].)3
3 As we explained in our opinion affirming Eagan’s first
degree murder conviction on direct appeal, under People v.
Gonzalez, supra, 54 Cal.4th 643, a second degree provocative act
9
In his opening brief Eagan does not dispute he was
convicted of provocative act murder, not felony murder, nor does
he contend Senate Bill 1437’s reforms include provocative act
murder. Rather, distinguishing the facts in People v. Gonzalez,
supra, 54 Cal.4th 643, Eagan asserts, “[I]t was not foreseeable
that an individual would show up clearly evincing the intent to
shoot Mr. Eagan. At the very least, Mr. Eagan has made a
prima facie showing that Mr. Campbell’s presence with a gun
was a superseding cause of decedent McDougal’s death.” That is
simply an argument the evidence was insufficient to support the
jury’s finding Eagan was guilty of murder—an argument we
rejected in Eagan’s direct appeal and one that is not cognizable in
any event in connection with a section 1170.95 petition. The
superior court properly ruled Eagan was ineligible for
resentencing as a matter of law.4
murder may be elevated to first degree murder if the death
occurred during one of the felonies identified in section 189,
subdivision (a)—that is, those serious felonies as to which the
felony-murder rule applies. That principle concerning the degree
of culpability for provocative act murder “neither intertwines
provocative act murder with felony murder nor transforms the
former into the latter.” (People v. Swanson, supra,
57 Cal.App.5th at p. 616, review granted; see People v. Johnson,
supra, 57 Cal.App.5th at p. 266 [rejecting the argument that,
“[e]ven though he was not convicted of felony murder,” a
defendant “is eligible for relief under section 1170.95 because the
felony-murder rule was invoked to determine the degree of the
murder, i.e., murder of the first degree”].)
4 Because Eagan was not convicted of felony murder, the
parties’ discussion of the superior court’s analysis of his role in
the burglary and attempted house invasion robbery in light of the
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DISPOSITION
The postjudgment order denying Eagan’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
Banks/Clark factors has no bearing on our decision to affirm the
order denying the petition for resentencing.
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