Filed 4/14/22 P. v. McGill CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

Defendant Nathan Angelo McGill appeals from a postjudgment order denying his petition for resentencing pursuant to Penal Code section 1170.95.[1] McGill’s court-appointed counsel filed a brief that raised no legal issues and asked this court to conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel represented that she advised McGill of his right to file a supplemental brief within 30 days and to request that the court relieve his counsel. McGill did not file a supplemental brief.

Several cases have recognized that Wende procedures are not constitutionally required in appeals other than a criminal defendant’s first appeal of right from a conviction, and thus conclude that Wende review is not required for the appeal of postconviction orders denying sentencing relief under section 1170.95. (See, e.g., People v. Cole (2020) 52 Cal.App.5th 1023, 1034–1035, review granted Oct. 14, 2020, S264278.) The issue is currently pending before the California Supreme Court. (Ibid.; see also People v. Scott (2020) 58 Cal.App.5th 1127, review granted Mar. 17, 2021, S266853; People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870.) We nonetheless retain the discretion to conduct a Wende review. (People v. Flores (2020) 54 Cal.App.5th 266, 270.) Having exercised such discretion and reviewed the record here, we affirm.

BACKGROUND

A. The Underlying Murder[2]

In 2009, longtime methamphetamine dealer Jody Reynolds was murdered at his trailer home on semi-rural property in Santa Rosa. During a robbery carried out by McGill and three other men, Reynolds was beaten and shot twice with different guns.

McGill admitted in police interviews that he had participated in the planning for what was supposed to be just a robbery. He described himself as a veteran criminal who was anxious about the inexperience of the other men and wanted to “make sure they’re doing shit right” since they were “my boys.” While initially warning them against shooting Reynolds, McGill had written down the plan and had the others practice at his house. Four guns were used during the robbery and murder, including guns that McGill had provided or fixed. McGill stated that he had stayed outside of Reynolds’s house until he heard shots fired, then was angry and “ready to shoot them all.”

Other evidence tying McGill to the planning and execution of the robbery/murder included: (1) his arrival at the home of one of the other men after the shooting, wearing a face mask; (2) his talk there about what happened in the presence of another individual who would later testify against them; (3) his threat to that other individual, while holding a gun, that he would be dead if he said anything; (4) his taking a share of property stolen from Reynolds’s home; (5) a duffle bag of guns found in the house where McGill lived, including a revolver likely used to shoot Reynolds; and (6) the presence of McGill’s DNA found on a magazine with the guns.

McGill was found guilty by a jury of first degree murder (§ 187, subd. (a)), first degree residential robbery and burglary (§§ 211, 459), and possession of a firearm by a felon (§ 12022, subd. (a)(1)), with allegations of arming (§ 12022, subd. (a)(1)) and robbery in concert (§ 213, subd. (a)(1)(A)) found true. The court found true prior serious felony and strike allegations and sentenced McGill to an aggregate term of 62 years to life.

McGill appealed his conviction, arguing error in the admission of his statement of presence at Reynold’s home as an involuntary confession induced by a false promise of leniency. We affirmed in McGill I.

B. Section 1170.95

In 2018, the Legislature passed Senate Bill No. 1437 (2017–2018 Reg. Sess.), which, among other things, “eliminate[d] felony-murder liability in cases in which the defendant was not a major participant in the underlying felony or did not act with reckless indifference to human life.” (People v. Allison (2020) 55 Cal.App.5th 449, 455.) It also enacted section 1170.95, which establishes a procedure by which a person previously convicted of felony murder or murder under the natural and probable consequences doctrine can petition to have the conviction vacated and be resentenced. (§ 1170.95, subd. (a).)

After a petition for resentencing is filed, the trial court must determine whether the defendant has made a prima facie showing of entitlement to relief under section 1170.95. (§ 1170.95, subd. (c); People v. Lewis (2021) 11 Cal.5th 952, 960.) In making this assessment, the trial court “should accept the assertions in the petition as true unless facts in the record conclusively refute them as a matter of law.” (People v. Drayton (2020) 47 Cal.App.5th 965, 968.)

If the court determines that a prima facie showing has been made, it “shall issue an order to show cause” and “hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (§ 1170.95, subds. (c)–(d)(1).) At the evidentiary hearing, the prosecution bears the burden to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. (Id., subd. (d)(3).)

C. McGill’s Resentencing Petition

In 2019, McGill filed a petition for resentencing under section 1170.95 alleging he had been convicted of first degree murder based on a felony-murder theory or the natural and probable consequences doctrine. Counsel was appointed for McGill.

The trial court issued an order to show cause on McGill’s petition. It explained there were no findings made by the jury that McGill was a “major participant” in the underlying felony who acted “with reckless indifference to human life,” and that it was inappropriate at this stage of the proceedings to weigh the evidence or make factual findings regarding his role in the robbery and killing. A hearing was held on McGill’s petition. The parties relied solely on the evidence in the record of conviction, and did not introduce any additional evidence at the hearing.

The trial court subsequently issued a written decision denying McGill’s petition for resentencing. It found, beyond a reasonable doubt, that McGill was a major participant in the felony resulting in Reynolds’s murder and acted with reckless indifference to human life at the time of the crime. As for his role as a major participant, the trial court cited evidence that McGill wrote down the plan, helped the other men practice at his house, fixed and cleaned up guns so they were sure to be operable for the robbery, wore a face mask, ran inside Reynolds’s home with a loaded gun after hearing a shot in order to aid the other men, took his share of Reynolds’s property obtained during the robbery, threatened someone while holding a gun to keep quiet about what had happened, and stored the guns at his house.

As for his actions with reckless indifference to human life, the trial court cited evidence that McGill had effectively provided functioning weapons to his co-participants and thus knew how many weapons would be used, that they were loaded, and who would be in possession of each of the weapons. McGill knew some of the other men were inexperienced, often high on drugs, and nervous and unfocused when they met to plan and train for the robbery. McGill also knew one of his co-participants from their time spent together in prison, and thus a reasonable inference could be inferred that McGill was aware of his co-participant’s previous conviction for assault with a deadly weapon. McGill told police he was prepared to shoot any individuals that happened upon the scene and ran into Reynolds’s house with a loaded shotgun and ordered any would-be resisters to get on the ground in an attempt to take control of the situation. While McGill claimed to have looked for a landline to call 911 after Reynolds was shot, he did not render aid to Reynolds or seek help at the neighboring residence but instead fled the scene with Reynolds’s property. The trial court thus concluded McGill was ineligible for resentencing pursuant to section 1170.95.

McGill filed a timely notice of appeal.

DISCUSSION

Based on our independent review of the record here, we find no errors or arguable issues on the order denying McGill’s petition. Given there was no new evidence presented at the hearing, the trial court relied on evidence from the record of conviction to conclude McGill was ineligible for resentencing under section 1170.95. (People v. Daniel (2020) 57 Cal.App.5th 666, 677.) It applied the reasonable doubt standard to find McGill was a major participant in the felony resulting in Reynolds’s murder and acted with reckless indifference to human life at the time of the crime. (§ 1170.95, subd. (d)(3).)

There was substantial evidence to support this finding. (People v. Price (2021) 71 Cal.App.5th 1128, 1156.) As explained in People v. Banks (2015) 61 Cal.4th 788, relevant considerations in determining whether the defendant was a major participant include: “What role did the defendant have in planning the criminal enterprise that led to one or more deaths? What role did the defendant have in supplying or using lethal weapons? What awareness did the defendant have of particular dangers posed by the nature of the crime, weapons used, or past experience or conduct of the other participants? Was the defendant present at the scene of the killing, in a position to facilitate or prevent the actual murder, and did his or her own actions or inaction play a particular role in the death? What did the defendant do after lethal force was used?” (Id. at p. 803.) Here, the evidence showed McGill was a major participant as he wrote down the plan, helped the other men practice at his house, and fixed the guns to ensure they were operable. McGill admitted he was present at the scene of the murder. After Reynolds was shot, McGill fled and took his share of the stolen property, threatened someone while holding a gun to keep quiet about the murder, and stored the guns at his house.

While the above factors are “highly relevant” to determining whether a defendant also acted with reckless indifference for human life (In re Loza (2017) 10 Cal.App.5th 38, 52), the California Supreme Court has set forth certain factors for consideration: (1) knowledge of weapons, and use and number of weapons; (2) physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) duration of the felony; (4) knowledge of a cohort’s likelihood of killing; and (5) efforts to minimize the risks of the violence during the felony (People v. Clark (2016) 63 Cal.4th 522, 618–623). Again, there was ample evidence weighing in favor of the trial court’s finding. Having fixed the guns himself, McGill knew there would be four loaded guns used for the robbery. While McGill claimed the robbery lasted only 12 minutes, he was at the scene and used his loaded shotgun while acting as the lookout and then running into Reynold’s house to aid his co-participants and order any others to get on the ground. Given McGill had been in prison with one of the other men, it was reasonable to infer that McGill knew of his co-participant’s violent criminal history and likelihood to engage in lethal violence. Finally, McGill did not minimize the risks of violence during the robbery but instead ensured that the other men had operational, loaded firearms.

Given our conclusion that there are no errors or arguable issues requiring further briefing, we affirm.

DISPOSITION

The trial court’s order denying McGill’s petition for resentencing pursuant to section 1170.95 is affirmed.

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Mayfield, J.*

We concur:

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Stewart, Acting P.J.

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Miller, J.

People v. McGill (A163472)

*Judge of the Mendocino County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] The following facts are taken from our unpublished opinion in People v. McGill (Jan. 19, 2012, A129485) (McGill I).