People v. McDermott CA2/3

Filed 1/29/21 P. v. McDermott CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE, B302013
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA052445)
v.
ROHAN MCDERMOTT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark E. Windham, Judge. Affirmed.
Robert D. Bacon, 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, Assistant
Attorney General, Charles S. Lee and Charles J. Sarosy, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
Rohan McDermott appeals from the trial court’s denial of
his Penal Code section 1170.95 petition1 for vacation of his first
degree murder conviction and resentencing. Because McDermott
is ineligible for relief as a matter of law, we affirm the court’s
order.
FACTUAL AND PROCEDURAL BACKGROUND2
1. The murder and McDermott’s conviction
In 2004, McDermott and Alcliff Daley planned to steal
marijuana from Troy Lewis and Dwane Godoy. After luring the
men into Daley’s apartment, Daley pointed a gun at Godoy and
Lewis, and McDermott taped their hands behind their backs.
Daley threatened to kill them and leave their bodies to rot in a
closet. When Daley noticed that Godoy had managed to free his
hands, he put the gun to Godoy’s head and again threatened to
kill him. McDermott retaped Godoy’s hands and also taped his
feet. When McDermott and Daley exited the apartment, Godoy
1
All further undesignated statutory references are to the
Penal Code.
2
On May 20, 2020, the People filed a motion requesting that
we take judicial notice of portions of the record in case
No. B193585, including our prior unpublished opinion, excerpts of
the clerk’s transcript (including the verdict and a portion of the
jury instructions), an order denying McDermott’s state petition
for writ of habeas corpus, a report and recommendation and order
regarding the denial of his federal petition for writ of habeas
corpus, the Ninth Circuit Court of Appeals’ order denying his
request for a certificate of appealability, and the United States
Supreme Court’s order denying a writ of certiorari. We grant the
motion. (Evid. Code, §§ 451, subd. (a), 452, subd. (d).) We derive
the factual and procedural background primarily from our
unpublished opinion in this case.
2
managed to free himself. But, when he tried to flee, McDermott
was at the apartment’s front door. McDermott told Godoy,
“ ‘You’re not going nowhere.’ ” The two men struggled, and Godoy
got away. McDermott chased him, but he hid underneath a car
in a neighboring yard. Lewis did not escape. His body was
discovered in the apartment; he had been shot in the forehead,
and his hands were bound behind his back with tape.
A jury found McDermott guilty of first degree murder with
true findings on special circumstance allegations that the murder
was committed during an attempted kidnapping for ransom and
an attempted robbery. (§ 190.2, subd. (a)(17)(A) & (B)). It also
found true an allegation that a principal was armed during the
offense. (§ 12022, subd. (a)(1).) The trial court sentenced
McDermott to life in prison without the possibility of parole, plus
one year. In 2007, this division affirmed the judgment of
conviction. (People v. McDermott (June 28, 2007, B193585)
[nonpub. opn.].)
2. Section 1170.95 petition
On September 6, 2019, after passage of Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), McDermott
filed a petition for vacation of his murder conviction and
resentencing. Using a preprinted form, he checked boxes stating
that he had been convicted of murder pursuant to the felony
murder rule or the natural and probable consequences doctrine;
he was not the actual killer; he did not, with the intent to kill, aid
and abet the actual killer; and he could not now be convicted of
murder in light of changes to sections 188 and 189 effectuated by
Senate Bill 1437. He also checked a box requesting the
appointment of counsel.
3
On September 10, 2019, the trial court summarily denied
the petition. McDermott was not present, and was not
represented by counsel. The court found McDermott was
ineligible for relief as a matter of law because the jury’s true
findings on the special circumstance allegations established he
intended to kill, or was a major participant in the murder and
acted with reckless indifference to human life.
On September 27, 2019, McDermott filed a notice of appeal.
Attached was a two-page document explaining that he had not
acted as a major participant in the murder with reckless
indifference to human life, as those terms were defined in People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark).
DISCUSSION
McDermott contends that the trial court erred by
summarily dismissing his petition based on the jury’s special
circumstance finding, without appointing counsel for him. We
disagree.
1. Applicable legal principles
a. Senate Bill 1437
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile); People
v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review
granted Mar. 18, 2020, S260493; People v. Munoz (2019) 39
Cal.App.5th 738, 749–750, 763, review granted Nov. 26, 2019,
S258234.)
4
As relevant here, prior to Senate Bill 1437’s enactment,
under the felony-murder rule “a defendant who intended to
commit a specified felony could be convicted of murder for a
killing during the felony, or attempted felony, without further
examination of his or her mental state.” (People v. Lamoureux
(2019) 42 Cal.App.5th 241, 247–248; People v. Powell (2018)
5 Cal.5th 921, 942.) Senate Bill 1437 amended the felony-murder
rule by adding section 189, subdivision (e), which provides that a
participant in the perpetration of qualifying felonies is liable for
felony murder only if the person: (1) was the actual killer;
(2) was not the actual killer but, with the intent to kill, acted as a
direct aider and abettor; or (3) the person was a major participant
in the underlying felony and acted with reckless indifference to
human life, as described in section 190.2, subdivision (d).
(Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural
and probable consequences doctrine by adding subdivision (a)(3)
to section 188, which states that “[m]alice shall not be imputed to
a person based solely on his or her participation in a crime.”
b. Section 1170.95’s petitioning procedure
Senate Bill 1437 also added section 1170.95, which created
a procedure whereby persons convicted of murder under a now-
invalid felony-murder or natural and probable consequences
theory may petition for vacation of their convictions and
resentencing. A defendant is eligible for relief under section
1170.95 if he meets three conditions: (1) he must have been
charged with murder under a theory of felony murder or murder
under the natural and probable consequences doctrine, (2) must
have been convicted of first or second degree murder, and
(3) could no longer be convicted of first or second degree murder
5
due to changes to sections 188 and 189 effectuated by Senate Bill
1437. (§ 1170.95, subd. (a).)
Evaluation of a section 1170.95 petition requires a multi-
step process: an initial review to determine the petition’s facial
sufficiency; a prebriefing, “ ‘first prima facie review’ ” to
preliminarily determine whether the petitioner is statutorily
eligible for relief as a matter of law; and a second, postbriefing
prima facie review to determine whether the petitioner has made
a prima facie case that he or she is entitled to relief. (People v.
Tarkington (2020) 49 Cal.App.5th 892, 897 (Tarkington), review
granted Aug. 12, 2020, S263219; Verdugo, supra, 44 Cal.App.5th
at pp. 327–330, rev.gr.)
When conducting the first prima facie review, the court
must determine, based upon its review of readily ascertainable
information in the record of conviction and the court file, whether
the petitioner is statutorily eligible for relief as a matter of law,
i.e., whether he or she was convicted of a qualifying crime, based
on a charging document that permitted the prosecution to
proceed under the natural and probable consequences doctrine or
a felony-murder theory. (Tarkington, supra, 49 Cal.App.5th at
pp. 897–898, rev.gr.; Verdugo, supra, 44 Cal.App.5th at pp. 329–
330, rev.gr.) If it is clear from the record of conviction that the
petitioner cannot establish eligibility as a matter of law, the trial
court may summarily deny the petition without appointing
counsel. (Tarkington, at pp. 898, 900–902; People v. Torres (2020)
46 Cal.App.5th 1168, 1178 (Torres), review granted June 24,
2020, S262011; Verdugo, at p. 332; People v. Lewis (2020) 43
Cal.App.5th 1128, 1139–1140, review granted Mar. 18, 2020,
S260598.)
6
If, however, the petitioner’s eligibility is not established as
a matter of law, the court must appoint counsel and permit
briefing to determine whether the petitioner has made a prima
facie showing he or she is entitled to relief. (Verdugo, supra,
44 Cal.App.5th at p. 330, rev.gr.; Tarkington, supra, 49
Cal.App.5th at p. 898, rev.gr.) If the petitioner makes such a
showing, the court must issue an order to show cause and
conduct a hearing to determine whether to vacate the murder
conviction and resentence the petitioner on any remaining
counts. (§ 1170.95, subds. (c), (d); People v. Nguyen (2020) 53
Cal.App.5th 1154, 1165–1166.) At that hearing, the prosecution
has the burden to prove, beyond a reasonable doubt, that the
defendant is ineligible for resentencing. (§ 1170.95, subd. (d)(3).)
2. Application here
a. Contentions
McDermott challenges the trial court’s ruling on several
grounds. First, he argues that his petition made a prima facie
showing that he falls within the parameters of section 1170.95;
therefore, the court erred by summarily denying his petition and
failing to appoint counsel for him. Second, he contends that the
trial court erred by examining the record of conviction to
determine eligibility prior to the section 1170.95, subdivision (d)
hearing stage. In his view, section 1170.95 was “designed . . . to
create a different factual record on which to adjudicate the case,”
and a petitioner’s filing of a facially compliant petition
“institute[s] a proceeding in which the prosecution has a new
burden of proof beyond a reasonable doubt on a potentially
enlarged factual record, beyond the record of conviction.” Third,
he urges that the court erred by finding him ineligible based on
the jury’s special circumstance findings, which predated our
7
Supreme Court’s decisions in Banks and Clark. He argues that
he did not, in fact, “manifest reckless indifference to human life”
during the offense because, among other things, Daley
purportedly threatened him with the gun and he acted under
duress. And no court has found, subsequent to Banks and Clark,
that he was a major participant who acted with reckless
indifference to human life.
The People counter that the trial court properly reviewed
the record of conviction and was not required to appoint counsel
because McDermott was ineligible as a matter of law, given the
jury’s special circumstance findings. Further, they argue, any
error was harmless because it is not reasonably probable that
McDermott would have obtained a more favorable result had
counsel been appointed.
b. The trial court did not err by reviewing the record
of conviction or by declining to appoint counsel
We are not persuaded by McDermott’s contention that the
trial court improperly reviewed the record of conviction.
Numerous courts of appeal, including this one, have rejected the
argument that a trial court is limited to consideration of the
allegations in the petition when determining whether the
petitioner has made a prima facie showing of eligibility. To the
contrary, a court may consider readily ascertainable information
in the record of conviction and the court file, including a prior
court of appeal opinion. (See People v. Palacios (2020) 58
Cal.App.5th 845, 855–856; People v. Gomez (2020) 52 Cal.App.5th
1, 15–16 (Gomez), review granted Oct. 14, 2020, S264033; People
v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted
Sept. 23, 2020, S263939; Tarkington, supra, 49 Cal.App.5th at
p. 898, rev.gr.; People v. Lee (2020) 49 Cal.App.5th 254, 262–263,
8
review granted July 15, 2020, S262459; People v. Law (2020)
48 Cal.App.5th 811, 821, review granted July 8, 2020, S262490;
Torres, supra, 46 Cal.App.5th at pp. 1173, 1178, rev.gr.; Verdugo,
supra, 44 Cal.App.5th at pp. 329–330, rev.gr.; People v. Lewis,
supra, 43 Cal.App.5th at pp. 1137–1138 & fn. 7, rev.gr.)
We likewise reject McDermott’s argument that the trial
court was required to appoint counsel once he filed a facially
sufficient petition. Again, we and other courts have held that a
trial court may summarily deny a petition without appointing
counsel if the record shows the defendant is ineligible as a matter
of law. (See Tarkington, supra, 49 Cal.App.5th at pp. 901–902,
rev.gr.; Torres, supra, 46 Cal.App.5th at p. 1173, rev.gr.; Verdugo,
supra, 44 Cal.App.5th at pp. 332–333, rev.gr.; People v. Lewis,
supra, 43 Cal.App.5th at pp. 1139–1140, rev.gr.; People v.
Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18,
2020, S260410; but see People v. Cooper (2020) 54 Cal.App.5th
106, 109, review granted Nov. 10, 2020, S264684.)3
McDermott argues that he had a constitutional right to
counsel at the outset because the petitioning procedure under
section 1170.95 is a critical stage of a criminal proceeding.
Therefore, the court’s failure to appoint counsel amounted to
structural error, requiring per se reversal. We disagree.
3 Our California Supreme Court is currently reviewing
whether a trial court may consider the record of conviction in
determining whether a defendant has made a prima facie
showing of eligibility for relief under section 1170.95, and when
the right to counsel arises under section 1170.95, subdivision (c).
(People v. Lewis, S260598.) Pending further guidance from our
high court, however, McDermott’s arguments do not persuade us
to deviate from our prior holdings on these points.
9
Under both the state and federal Constitutions, a
defendant has a right to counsel at all critical stages of a criminal
prosecution. (U.S. Const., 6th Amend.; Cal. Const., art I,
§ 15; Gardner v. Appellate Division of Superior Court (2019)
6 Cal.5th 998, 1004 (Gardner); People v. Doolin (2009) 45 Cal.4th
390, 453; People v. Rouse (2016) 245 Cal.App.4th 292, 296–
297 (Rouse).) Critical stages are those “events or proceedings in
which the accused is brought in confrontation with the state,
where potential substantial prejudice to the accused’s rights
inheres in the confrontation, and where counsel’s assistance can
help to avoid that prejudice.” (Gardner, at pp. 1004–1005; Rouse,
at p. 297 [“ ‘ “[T]he essence of a ‘critical stage’ is . . . the adversary
nature of the proceeding, combined with the possibility that a
defendant will be prejudiced in some significant way by the
absence of counsel.” [Citation.]’ ”].) Thus, arraignments,
preliminary hearings, postindictment lineups and interrogations,
plea negotiations, and sentencing are all critical stages.
(Gardner, at p. 1005; Rouse, at p. 297.) On the other hand, where
legislation gives inmates serving otherwise final sentences the
benefit of ameliorative changes to applicable sentencing laws, the
Sixth Amendment is not necessarily implicated. (See People v.
Perez (2018) 4 Cal.5th 1055, 1063–1064; People v. Howard (2020)
50 Cal.App.5th 727, 740 [“The retroactive relief provided by
section 1170.95 reflects an act of lenity by the Legislature” and
does not implicate a defendant’s Sixth Amendment rights]; People
v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [“the retroactive
relief . . . afforded by Senate Bill 1437 is not subject to Sixth
Amendment analysis” and defendants had no right to a jury trial
on a section 1170.95 petition].)
10
The first, prebriefing prima facie review of a petition under
section 1170.95 is not a critical stage of the proceedings. At that
point, the court is simply tasked with determining whether there
is a prima facie showing the petitioner falls within the provisions
of the statute as a matter of law, making all factual inferences in
his or her favor. (Verdugo, supra, 44 Cal.App.5th at p. 329,
rev.gr.; Tarkington, supra, 49 Cal.App.5th at p. 898, rev.gr.) This
initial prima facie review is not an adversarial proceeding.
Indeed, in the instant case it does not appear that the People
filed briefing or otherwise played any role in the trial court’s
ruling. Adjudication of a section 1170.95 petition at the
eligibility stage is not akin to a sentencing hearing. The court
does not rule on disputed issues of fact; it must make all factual
inferences in favor of the petitioner. (Verdugo, at p. 329;
Tarkington, at p. 898.) And, the court is not called upon to
exercise its discretion in any respect. Nor do we detect the
possibility that counsel’s absence could prejudice a petitioner in a
significant way, or that counsel’s presence at this stage is
necessary to preserve his rights. At the eligibility stage, the
court’s ruling must turn on undisputed facts that render a
petitioner ineligible as a matter of law. Counsel’s representation
at this stage cannot meaningfully impact this analysis.
People v. Rodriguez (1998) 17 Cal.4th 253, cited by
McDermott, does not compel a contrary conclusion. In Rodriguez,
the sentencing court erroneously believed, prior to issuance of
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, that it
lacked discretion to strike prior felony conviction allegations
under the Three Strikes law. (Rodriguez, at p. 255.) Rodriguez
concluded that the matter had to be remanded to allow the trial
court to exercise its discretion on the question, and should do so
11
in the presence of defendant and his counsel. (Id. at pp. 255–
257.) But such a remand for resentencing is unlike the first
prima facie eligibility review on a section 1170.95 petition: in the
former, the court exercises its discretion and sentences the
defendant; in the latter, it does not.
Thus, if the trial court here correctly concluded that the
special circumstance findings precluded relief as a matter of law,
it was not required to appoint counsel before denying the
petition. We turn to that question.
c. The trial court correctly denied the petition because
McDermott is ineligible for relief as a matter of law
To be eligible for resentencing, McDermott was required to
show that he “could not be convicted of first or second degree
murder because of changes to Section 188 or 189” made by Senate
Bill 1437. (§ 1170.95, subd. (a)(3).) Under section 189, as
amended, a defendant can be convicted of felony murder if he was
the actual killer; acted as a direct aider and abettor with the
intent to kill; or was a major participant in the underlying felony
and acted with reckless indifference to human life. (§ 189,
subd. (e); People v. Murillo (2020) 54 Cal.App.5th 160, 167
(Murillo), review granted Nov. 18, 2020, S264978.)
McDermott was tried on a felony murder theory; the
natural and probable consequences doctrine was not at issue. As
noted, the jury found true two special circumstance allegations:
that the murder was committed during an attempted kidnapping
for ransom and an attempted robbery. (§ 190.2, subd. (a)(17)(A)
& (B)). Regarding the special circumstances, the jury was
instructed with CALCRIM No. 703. That instruction provided
that if the jury concluded a defendant was guilty of first degree
murder, but was not the actual killer, to prove the special
12
circumstances the People had to prove either that the defendant
intended to kill, or that he was a major participant in the crime
and acted with reckless indifference to human life. The
instruction further provided that a person acts with reckless
indifference to human life when he or she “knowingly engages in
criminal activity that he or she knows involves a grave risk of
death.”
Thus, the jury’s findings on the special circumstance
allegations make McDermott ineligible for resentencing as a
matter of law. “The requirements for the felony-murder special
circumstance did not change as a part of Senate Bill No. 1437,
and are identical to the new requirements for felony murder
following the enactment of Senate Bill No. 1437. In both
instances, the defendant must have either actually killed the
victim [citations]; acted with the intent to kill in aiding, abetting,
counseling, commanding, inducing, soliciting, requesting, or
assisting in the killing [citations]; or been a major participant in
the underlying felony and acted with reckless indifference to
human life [citations]. By finding a special circumstance
allegation true, the jury makes precisely the same finding it must
make in order to convict a defendant of felony murder under the
new law. Because a defendant with a felony-murder special
circumstance could still be convicted of murder, he is ineligible as
a matter of law to have his murder conviction vacated.” (People
v. Galvan (2020) 52 Cal.App.5th 1134, 1140–1141 (Galvan),
review granted Oct. 14, 2020, S264284; see People v. Jones (2020)
56 Cal.App.5th 474, 482, review granted Jan. 27, 2021, S265854
(Jones); Gomez, supra, 52 Cal.App.5th at p. 15, rev.gr.; Murillo,
supra, 54 Cal.App.5th at p. 167, rev.gr.; People v. Allison (2020)
55 Cal.App.5th 449, 457 (Allison); People v. Nunez (2020) 57
13
Cal.App.5th 78, 91 (Nunez), review granted Jan. 13, 2021,
S265918.)
McDermott argues that the jury’s special circumstance
findings are not preclusive in his case, because they predated our
Supreme Court’s decisions in Banks and Clark. “Banks and
Clark ‘clarified “what it means for an aiding and abetting
defendant to be a ‘major participant’ in a crime who acted with a
‘reckless indifference to human life.’ ” ’ [Citation.] Banks
identified certain factors to be considered in determining whether
a defendant was a major participant; Clark identified factors to
guide the determination of whether the defendant acted with
reckless indifference to human life.” (Gomez, supra, 52
Cal.App.5th at p. 13, fn. 5, rev.gr.)
The appellate courts are split on the question of whether a
pre-Banks and Clark special circumstance finding makes a
petitioner ineligible for section 1170.95 relief as a matter of law.
(See Jones, supra, 56 Cal.App.5th at pp. 478–479, rev.gr.
[collecting cases].) Our colleagues in Division Five have
concluded that such a special circumstance does not, by itself,
render a petitioner ineligible for relief. (Torres, supra, 46
Cal.App.5th at p. 1178, rev.gr.) Torres reasoned that Banks and
Clark “construed section 190.2, subdivision (d) in a significantly
different, and narrower manner than courts had previously
construed the statute.” (Id. at p. 1179.) “Accordingly, in
determining if [petitioner] could be convicted today of first degree
murder, we cannot simply defer to the jury’s pre-Banks and Clark
factual findings that [petitioner] was a major participant who
acted with reckless indifference to human life as those terms
were interpreted at the time.” (Ibid.) “No court has affirmed the
special circumstances findings at issue post-Banks and Clark.
14
There is therefore a possibility that [the petitioner] was punished
for conduct that is not prohibited by section 190.2 as currently
understood, in violation of [petitioner’s] constitutional right to
due process.” (Id. at p. 1180, internal fn. omitted; People v. Smith
(2020) 49 Cal.App.5th 85, 93 (Smith), review granted July 22,
2020, S262835; People v. York (2020) 54 Cal.App.5th 250, 258
(York), review granted Nov. 18, 2020, S264954 [pre-Banks/Clark
special circumstance finding “cannot preclude eligibility for relief
under . . . section 1170.95 as a matter of law, because the factual
issues that the jury was asked to resolve” in such a case “are not
the same factual issues our Supreme Court has since identified
as controlling.”].)
Additionally, York rejected the view that a petitioner must
challenge a pre-Banks and Clark special circumstance finding in
a habeas corpus proceeding before he or she may successfully
challenge the underlying murder conviction in a section 1170.95
proceeding. The court explained: “The statute does not state
that a true finding on a special circumstance allegation
automatically precludes relief. To the contrary, its language
implies that there is no such bar to eligibility. Section 1170.95,
subdivision (d)(2), provides: ‘If there was a prior finding by a
court or jury that the petitioner did not act with reckless
indifference to human life or was not a major participant in the
felony, the court shall vacate the petitioner’s conviction and
resentence the petitioner.’ We find it significant that the
Legislature made no provision for the consequence of a prior
finding by a court or a jury that a petitioner was a major
participant and did act with reckless indifference to human life.
If the Legislature had intended such a finding automatically to
15
preclude eligibility for relief, it could have said so.” (York, supra,
54 Cal.App.5th at pp. 260–261, internal fn. omitted, rev.gr.)
As noted, other courts hold that a pre-Banks and Clark
special circumstance finding bars section 1170.95 relief as a
matter of law. They reason that section 1170.95 was not meant
to be an avenue for a collateral attack on the sufficiency of the
evidence to support a special circumstance finding (see, e.g.,
Allison, supra, 55 Cal.App.5th at pp. 453, 461), and a defendant
seeking to challenge the sufficiency of the evidence to prove a pre-
Banks and Clark major participant or reckless indifference
finding must do so via a petition for writ of habeas corpus.
(Gomez, supra, 52 Cal.App.5th at pp. 16–17, rev.gr.; Galvan,
supra, 52 Cal.App.5th at p. 1137, rev.gr.; Jones, supra, 56
Cal.App.5th at p. 483, rev.gr.; Nunez, supra, 57 Cal.App.5th at
p. 96, rev.gr.)
In support of this view, some cases point out that Banks
and Clark did not state a new rule of law, but merely clarified the
already-existing meaning of “major participant” and “reckless
indifference,” terms that do not have specialized definitions and
are interpreted as used in common parlance. (Jones, supra,
56 Cal.App.5th at pp. 482, 484, rev.gr.; Nunez, supra, 57
Cal.App.5th at p. 92, rev.gr.; Allison, supra, 55 Cal.App.5th at
pp. 458–459.) While optional language was added to the pattern
jury instructions after Banks and Clark, “no mandatory language
or material changes were made to the CALCRIM special
circumstances instructions,” and there is no requirement that
juries be instructed on the Banks/Clark clarifications. (Nunez, at
pp. 92–93; Jones, at p. 484; Allison, at pp. 458–459.) Moreover, a
petitioner would have had the same incentive, both pre-and post-
Banks and Clark, to minimize his or her involvement in the
16
crimes and culpability for the murder. (Allison, at p. 459.) Thus,
the argument that a pre-Banks/Clark special circumstance
finding must be presumed invalid exaggerates the impact of
Banks and Clark. (See Allison, at p. 458; Jones, at p. 484.) There
is “no basis to conclude as a general matter that a pre-Banks and
Clark jury was instructed differently than a post-Banks and
Clark jury, or resolved different factual issues, answered
different questions, or applied different standards.” (Nunez, at
p. 94).
This line of authority also reasons that the
Torres/Smith/York approach is inconsistent with the plain
language of section 1170.95, because a defendant claiming
ineligibility based on Banks and Clark does not meet the
statutory requirement that he or she cannot be convicted because
of changes to sections 188 or 189 made by Senate Bill 1437.
(Jones, supra, 56 Cal.App.5th at p. 484, rev.gr.) “In order to be
eligible for resentencing, a defendant must show that he or she
‘could not be convicted of first or second degree murder because of
changes to Section[s] 188 or 189 made effective’ as part of Senate
Bill No. 1437. (§ 1170.95, subd. (a)(3).) [¶] . . . Although
[petitioner] is asserting that he could not now be convicted of
murder, the alleged inability to obtain such a conviction is not
‘because of changes’ made by Senate Bill No. 1437, but because of
the clarification of the requirements for the special circumstance
finding in Banks and Clark. Nothing about those requirements
changed as a result of Senate Bill No. 1437. Just as was the case
before that law went into effect, the special circumstance applies
to defendants who were major participants in an underlying
felony and acted with reckless indifference to human life.”
(Galvan, supra, 52 Cal.App.5th at p. 1142, rev.gr.; Murillo, supra,
17
54 Cal.App.5th at p. 168, rev.gr.; Allison, supra, 55 Cal.App.5th
at p. 460; Nunez, supra, 57 Cal.App.5th at pp. 94–95, rev.gr.)
Further, in concluding that the proper vehicle to challenge
a pre-Banks and Clark special circumstance finding is a petition
for writ of habeas corpus, courts point to the different burdens
involved in a habeas petition and a section 1170.95 petition. A
defendant challenging a pre-Banks/Clark special circumstance
finding by means of a writ of habeas corpus must show that the
record contains insufficient evidence to prove he or she acted as a
major participant or with reckless indifference. (Jones, supra,
56 Cal.App.5th at p. 485, rev.gr.; Galvan, supra, 52 Cal.App.5th
at pp. 1142–1143, rev.gr.; Gomez, supra, 52 Cal.App.5th at p. 17,
rev.gr.) “By contrast, a petitioner who demonstrates a prima
facie case for relief under section 1170.95 has shifted the burden
to the People to prove beyond a reasonable doubt that they are
ineligible for resentencing (that is, they still could be convicted of
murder despite the change to the felony-murder rule in § 189).
[Citation.] . . . [T]he Torres/Smith/York line of cases would read
into section 1170.95 a new procedure allowing petitioners to
ignore a special circumstance finding—no matter how well
supported in the record—as well as the recognized method of
challenging it. Such petitioners would be allowed to relitigate a
prior jury finding at an evidentiary hearing where the
prosecution bears the burden of proving the truth of the finding,
beyond a reasonable doubt, a second time.” (Jones, at p. 485.)
Allowing petitioners to challenge a special circumstance finding
via a section 1170.95 petition would give them an advantage over
similarly situated defendants, based on the date of their
convictions. (Galvan, at pp. 1142–1143; see Nunez, supra,
57 Cal.App.5th at pp. 96–97, rev.gr.)
18
Such a procedure is inconsistent with the Legislature’s
intent. “The Legislature made plain that its purpose in enacting
section 1170.95 was to give defendants the benefit of the
amendments to sections 188 and 189 in the absence of a factual
basis for a murder conviction in light of the statutory revisions.
But there is no indication in the statute’s text or history of any
legislative intent to permit defendants to challenge their murder
convictions by attacking prior findings of fact.” (Nunez, supra,
57 Cal.App.5th at p. 95, rev.gr.) “Nothing in the language
of section 1170.95 suggests it was intended to provide redress for
allegedly erroneous prior factfinding. In particular, subdivision
(a)(3) of section 1170.95 says nothing about erroneous prior
findings or the possibility of proving contrary facts if given a
second chance. Rather, it requires that the petitioner could not
be convicted of murder because of the changes to sections
188 and 189, not because a prior fact finder got the facts wrong.
The purpose of section 1170.95 is to give defendants the benefit of
amended sections 188 and 189 with respect to issues not
previously determined, not to provide a do-over on factual
disputes that have already been resolved.” (Allison, supra,
55 Cal.App.5th at p. 461.)
Allison found unpersuasive the York court’s reasoning
about section 1170.95, subdivision (d)(2), the provision expressly
requiring a court to grant relief if there has been a prior finding
the petitioner did not act as a major participant, with reckless
indifference. Allison reasoned: “The Legislature could not and
did not need to spell out every ground for denying a petition. For
example, the Legislature did not specify that a defendant with a
special circumstance finding for the administration of poison
(§ 190.2, subd. (a)(19)) or for killing while the defendant was an
19
active participant in a criminal street gang (§ 190.2, subd. (a)(22))
is ineligible for relief. But both of those special circumstances
require that the defendant intentionally killed the victim . . . ,
and a court would be correct to summarily deny a petition in such
a case because the defendant could not make a prima facie claim
that he was entitled to relief. If these kinds of findings did not
bar defendants from relief under section 1170.95, it would be
unclear how any prior factual findings could preclude relief under
section 1170.95.” (Allison, supra, 55 Cal.App.5th at pp. 459–460.)
Thus, Allison concluded, “the Legislature’s silence regarding
defendants with pre-Banks and Clark special circumstances does
not imply that such defendants are eligible for resentencing
under section 1170.95.” (Id. at p. 460.)
While we acknowledge that both of the foregoing lines of
authority are not without force, we respectfully disagree with our
colleagues in Division Five and conclude that the cases holding
that a special circumstance finding precludes relief as a matter of
law are more persuasive. Accordingly, we conclude that the trial
20
court correctly denied McDermott’s section 1170.95 petition4
because he is ineligible for relief as a matter of law.5
4 McDermott argues that, if his petition alone was
insufficient to make a prima facie case, we should remand to the
trial court for consideration of the petition in conjunction with the
additional two-page document he submitted with his notice of
appeal. He argues that ReStore Justice, the organization that
furnished his petition and distributed a guide to the petition
process to inmates, represented that petitioners would be entitled
to counsel if they simply checked the appropriate box on the
petition; he relied on this representation; and “[t]his reliance
interest is an element of due process.” Setting aside the question
of whether a nongovernmental entity’s distribution of a document
could confer a due process right, the additional pages attached to
McDermott’s notice of appeal do not assist him. His petition was
correctly denied at the eligibility stage because the jury’s special
circumstance findings disqualify him as a matter of law. His
arguments as to why those findings were factually incorrect
would not change that conclusion.
5 In light of our conclusion, we do not reach the People’s
arguments that any error was harmless, or that this court’s and a
federal court’s denials of McDermott’s prior habeas petitions
demonstrate the special circumstance findings “necessarily
comported with the post-Banks/Clark guidelines.”
21
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
22
DHANIDINA, J., Concurring and Dissenting:
I agree with the majority’s statement of facts and the law
regarding the procedural steps Penal Code1 section 1170.95
requires and as are described in People v. Verdugo (2020) 44
Cal.App.5th 320, 328, review granted March 18, 2020, S260493.
The majority has also explained well the split among appellate
courts about the interplay between section 1170.95 and a special
circumstance finding that a defendant was a major participant in
a murder who acted with reckless indifference to human life,
which finding predates People v. Banks (2015) 61 Cal.4th 788 and
People v. Clark (2016) 63 Cal.4th 522.
But where the majority sides with the People v. Galvan
(2020) 52 Cal.App.5th 1134, review granted Oct. 14, 2020,
S264284, line of cases regarding the split, I side with People v.
Torres (2020) 46 Cal.App.5th 1168, review granted June 24, 2020,
S262011. In my view, a special circumstance finding that
predates Banks and Clark does not render a defendant such as
McDermott ineligible for relief as a matter of law. (See, e.g.,
People v. York (2020) 54 Cal.App.5th 250, review granted Nov. 18,
2020, S264954; People v. Smith (2020) 49 Cal.App.5th 85, review
granted July 22, 2020, S262835.) I therefore respectfully dissent
as to that issue.
As the majority has said, under Senate Bill No. 1437,
malice may no longer be imputed to a person based solely on the
person’s participation in the crime; now, the person must have
acted with malice aforethought to be convicted of murder. (§ 188;
People v. Munoz (2019) 39 Cal.App.5th 738, 749, review granted
Nov. 26, 2019, S258234.) To that end, the natural and probable
consequences doctrine no longer applies to murder. And a
1
All further statutory references are to the Penal Code.
1
participant in enumerated crimes is liable under the felony-
murder doctrine only if the participant was the actual killer; or
with the intent to kill, aided and abetted the actual killer in
commission of first degree murder; or was a major participant in
the underlying felony and acted with reckless indifference to
human life. (§ 189, subd. (e); see Munoz, at pp. 749–750.)
The petitioning process Senate Bill No. 1437 created via
section 1170.95 thus requires a prima facie showing that the
defendant was not a major participant in the murder or did not
act with reckless indifference to life. Of course, a jury here found
that McDermott was a major participant in the murder who acted
with reckless indifference to life. However, that finding predates
Banks and Clark. In my view, those decisions had the effect of
narrowing the field of defendants who are major participants who
act with reckless indifference to human life. (See, e.g., People v.
Torres, supra, 46 Cal.App.5th at p. 1179; People v. Smith, supra,
49 Cal.App.5th at p. 93.) It could be that a pre-Banks and Clark
jury made “precisely the same finding it must make in order to
convict a defendant of felony murder under the new law.” (Maj.
opn. ante, at p. 13.) But it also could be that evidence supporting
the true finding the jury made before Banks and Clark would not
have been sufficient after them.
Section 1170.95 gives a defendant in McDermott’s situation
the mere opportunity to make that showing, with the benefit of
counsel. I therefore agree with my colleagues in Division 5 that a
section 1170.95 petition is a challenge to a murder conviction
which may require consideration of a pre-Banks and Clark
special circumstance finding. (See generally People v. York,
supra, 54 Cal.App.5th at p. 260; People v. Smith, supra,
49 Cal.App.5th 85; People v. Torres, supra, 46 Cal.App.5th 1168.)
2
In this discrete situation involving a defendant convicted of a
special circumstance pre-Banks and Clark, the defendant has
made a sufficient showing to get past the preliminary prima facie
level of review described in Verdugo and is entitled to
appointment of counsel to assist in further briefing, i.e., to
proceed to the second step of the prima facie review.
This conclusion does not open the door to wholesale
challenges to any prior juror finding and to all manner of
collateral attack. Rather, the California Supreme Court in Banks
and Clark has, in one specific and limited instance, decisively
clarified what it means to be a major participant in a murder who
acts with reckless indifference to life. As that clarification could
here reflect on McDermott’s murder conviction, I would therefore
find that McDermott is not ineligible for relief as a matter of law
and direct the trial court to appoint counsel to represent him and
to proceed in accordance with section 1170.95, subdivision (c).
(See, e.g., People v. Smith, supra, 49 Cal.App.5th at pp. 95–96;
but see People v. Law (2020) 48 Cal.App.5th 811, review granted
July 8, 2020, S262490 [error susceptible to harmless error
analysis].)
Further, I do not agree with the People’s additional reasons
why McDermott cannot progress past the preliminary prima facie
review. The People argue that McDermott has challenged his
special circumstance finding post-Banks and Clark via state and
federal petitions for writ of habeas corpus he filed. In 2019, we
summarily denied McDermott’s state petition for writ of habeas
corpus that had raised Banks and Clark. The ruling on the
habeas petition, however, was not on the merits of whether the
jury’s special circumstance finding meets the more stringent
Banks and Clark rubric and was not res judicata in future
3
proceedings. (See, e.g., People v. Torres, supra, 46 Cal.App.5th at
p. 1180, fn. 4; Gomez v. Superior Court (2012) 54 Cal.4th 293,
305, fn. 6.) In a federal petition for writ of habeas corpus,
McDermott argued that he was actually innocent of the special
circumstance allegation based on new evidence. In denying the
petition, the federal court addressed only the reckless
indifference prong of the special circumstance allegation. The
federal court did not address whether McDermott was a major
participant as now defined by Banks. Thus, no court has
affirmed the special circumstance finding, as now understood per
Banks and Clark.
DHANIDINA, J.
4