Filed 5/31/22 P. v. McCloud CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Judith L. Meyer, Judge. Reversed.

Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, David E. Madeo and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Izac McCloud challenges the trial court’s denial of his petition under Penal Code[1] section 1170.95 for resentencing on his murder convictions. He contends that the trial court erred by finding that he failed to make a prima facie case for resentencing. We agree and reverse.

FACTUAL AND PROCEDURAL SUMMARY

The following account of the facts is drawn from our opinion in McCloud’s appeal, People v. McCloud (2012) 211 Cal.App.4th 788.

Breon Taylor and Dennis Moses were killed, and a third victim, Ryan Gaines, was wounded, in a shooting at a large birthday party in Lakewood on January 19, 2008. One witness told a gang intervention specialist at his high school that McCloud and his codefendant Jonzel Stringer were upset that they were denied entrance to the party. “Stringer told McCloud ‘to go to the car and get the gun out and end it,’ i.e., ‘[e]nd the party.’ According to [the gang intervention specialist, the witness] told him that Stringer ‘instructed’ McCloud to ‘shoot it up in the air. Just scare ’em.’ ” (McCloud, supra, 211 Cal.App.4th at pp. 794–795.) Instead, McCloud fired the gun into the party.

Another witness testified that both defendants had told him that someone punched Stringer as Stringer was trying to enter the party. According to the witness, Stringer said that he fired two shots, then gave the gun to McCloud, who fired several more. The witness testified that McCloud admitted to shooting five or six shots toward the party.

Police found 10 nine-millimeter shell casings in the parking lot of the building where the birthday party took place. A criminalist determined that all the shell casings came from the same gun. Investigators concluded that two of the bullets from the gun struck a car, five struck the wall of the building, and three passed through a glass window and struck the victims.

A jury acquitted McCloud of first degree murder and attempted murder. The jury convicted him, however, of two counts of second degree murder (§ 187) and 46 counts of assault with a firearm (§ 245, subd. (a)(2)). The jury also found as to both murder counts that McCloud personally and intentionally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)). On appeal, we reversed 38 counts of assault with a firearm, but we otherwise affirmed. (McCloud, supra, 211 Cal.App.4th at pp. 807–808.) Upon remand, the trial court imposed an aggregate sentence of 113 years 4 months to life in prison.[2]

In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 Reg. Sess.), which eliminated liability for murder under the natural and probable consequences doctrine, and limited the application of the felony-murder doctrine. (People v. Gentile (2020) 10 Cal.5th 830, 842–843 (Gentile).) The legislation also enacted section 1170.95, which established a procedure for vacating murder convictions for defendants who could no longer be convicted of murder because of the changes in the law and resentencing those who were so convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.)

McCloud filed a petition for resentencing on June 20, 2019. The trial court obtained briefing from both sides, then denied the petition on the ground that McCloud failed to make a prima facie case that he is eligible for resentencing.

DISCUSSION

McCloud contends that the trial court erred by finding that he failed to make a prima facie case for resentencing because the record does not show as a matter of law that he is ineligible for relief under section 1170.95. He argues that the jury might have convicted him without finding that he acted with malice aforethought on a theory of second degree felony murder, which he claims is no longer valid following the enactment of Senate Bill No. 1437. We agree that McCloud made a prima facie case for resentencing and reverse the denial of his petition.[3]

A. Background on Senate Bill No. 1437

A defendant convicted of murder, attempted murder, or manslaughter may file a petition under section 1170.95 to have his conviction vacated and be resentenced, if he “could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective” as a part of Senate Bill No. 1437. (§ 1170.95, subd. (a)(3).) We explain these changes in more detail in part B below, but in short, Senate Bill No. 1437 eliminated the natural and probable consequences doctrine as a basis for a murder conviction and significantly restricted the scope of felony-murder liability. (See Gentile, supra, 10 Cal.5th at pp. 842–843, 849.)

When a defendant files a facially sufficient petition for resentencing under section 1170.95, the trial court must appoint counsel to represent the petitioner, obtain briefing from both sides, and hold a hearing to determine whether the petitioner has made a prima facie showing for relief. (§ 1170.95, subd. (c).) Our Supreme Court has explained that “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.” ’ ([People v.] Drayton [(2020)] 47 Cal.App.5th [965,] 978, quoting Cal. Rules of Court, rule 4.551(c)(1).) ‘[A] court should not reject the petitioner’s factual allegations on credibility grounds without first conducting an evidentiary hearing.’ (Drayton, at p. 978, fn. omitted, citing In re Serrano (1995) 10 Cal.4th 447, 456 . . . .) ‘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.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis).)

The court may consult the record of conviction at this stage, but “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ (Drayton, supra, 47 Cal.App.5th at p. 980.)” (Lewis, supra, 11 Cal.5th at p. 972.) Because “the ‘prima facie bar was intentionally and correctly set very low’ ” (Lewis, supra, 11 Cal.5th at p. 972), the trial court may deny a petition at this stage only if the record shows as a matter of law that the defendant is ineligible. (See People v. Mancilla (2021) 67 Cal.App.5th 854, 864−865.) This occurs most often in cases where the jury’s verdict is inconsistent with a conviction on a theory of murder abrogated by Senate Bill No. 1437. For example, if the jury did not receive instructions on the natural and probable consequences doctrine, the court may properly deny a petition on the ground that the defendant’s conviction could not have been based on that theory. (People v. Daniel (2020) 57 Cal.App.5th 666, 676−678.)

B. The Jury Might Have Convicted McCloud of Murder on the Basis of a No-Longer Valid Theory

Prior to the enactment of Senate Bill No. 1437, California law recognized both first degree and second degree felony murder. “First degree felony murder is a killing during the course of a felony specified in section 189. Second degree felony murder is ‘an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189.’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1182 (Chun).) Both degrees of felony murder allowed for convictions based solely on the fact that someone was killed while the defendant was engaged in the commission of a felony “without the necessity of further examining the defendant’s mental state.” (Ibid.) In other words, the felony-murder doctrine “presume[d] malice aforethought on the basis of the commission of a felony inherently dangerous to human life.” (People v. Stamp (1969) 2 Cal.App.3d 203, 210.)

Senate Bill No. 1437 barred murder convictions on the basis of this kind of presumption of malice in almost all circumstances. The legislation enacted section 188, subdivision (a)(3), which provided that, “[e]xcept as stated in subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)

The sole exception to the new rule, section 189, subdivision (e), provides as follows: “A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.”

Section 189, subdivision (e) thus allows a portion of the felony-murder doctrine to survive, albeit with significant restrictions. (See People v. Allison (2020) 55 Cal.App.5th 449, 457.) In prior opinions addressing this provision, we have most often focused on the requirements listed in subparagraphs (1), (2), and (3). If the record shows unequivocally that the defendant met one of these requirements, we have affirmed the trial court’s denial of the defendant’s petition. (See id. at pp. 457–459; People v. Murillo (2020) 54 Cal.App.5th 160, 167, review granted Nov. 18, 2020, S264978.) But these requirements apply only if the defendant was “[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a)” (§ 189, subd. (e), italics added). These are the felonies that serve as a basis for a conviction of first degree felony murder. (See Chun, supra, 45 Cal.4th at p. 1182.) The statute lists them as “arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206 [i.e., torture], 286 [i.e., sodomy], 287 [i.e., oral copulation], 288 [i.e., lewd or lascivious acts], or 289 [i.e., forcible acts of sexual penetration], or former Section 288a [i.e., oral copulation].” (§ 189, subd. (a).)

If a defendant committed any other felony, then he does not fit within the section 189, subdivision (e) exception. For any such defendant to be convicted of murder, the prosecution must show that he “act[ed] with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Thus, a defendant whose underlying felony is not enumerated in section 189, subdivision (a) can no longer be convicted under a felony-murder theory. (People v. DeHuff (2021) 63 Cal.App.5th 428, 442.)

The jury at McCloud’s trial was instructed on second degree felony murder as follows: “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as the direct causal result of the commission of the crime of [a]ssault with a [f]irearm is murder of the second degree when the perpetrator had the specific intent to commit that crime. [¶] The specific intent to commit [a]ssault with a [f]irearm and the commission or attempted commission of that crime must be proved beyond a reasonable doubt.”

The underlying felony in this instruction, assault with a firearm,[4] is not one of the felonies listed in section 189, subdivision (a). Thus, the instruction allowed the jury to convict McCloud of murder solely on the ground that he intended to commit assault with a firearm, without proof that he killed with malice aforethought. The jury’s verdicts are consistent with this theory. The jury convicted McCloud of assault with a firearm against the guests at the party who were not killed, but acquitted him of attempted murder of those victims. The jury thus might have believed McCloud did not act with the intent to kill when he fired into the crowd.

The Attorney General argues that we should affirm the denial of the petition because the record shows unequivocally that McCloud “was the actual killer.” (§ 189, subd. (e)(1).) We do not take issue with the assertion that McCloud was the actual killer. All evidence indicated that a single gun fired the bullets that killed both victims, and the jury found beyond a reasonable doubt that McCloud “personally and intentionally discharge[d] a firearm and proximately cause[d] . . . [the] death” of both victims. (§ 12022.53, subd. (d).) As we have explained above, however, a finding that the defendant was the actual killer is sufficient to support a murder conviction only if the defendant was “[a] participant in the perpetration or attempted perpetration of a felony listed in [section 189,] subdivision (a).” (§ 189, subd. (e).) McCloud was not accused of committing one of the enumerated felonies, so his conviction requires proof of malice aforethought, not merely that he was the actual killer.

Because the record of conviction does not show as a matter of law that McCloud committed murder on a still-valid theory, the trial court erred by finding that he failed to make a prima facie case for resentencing. Nor can we affirm the court’s decision as harmless error. To demonstrate prejudice, a defendant does not need to show a reasonable probability of ultimately obtaining relief. Instead, he must show only that if not for the trial court’s error, “ ‘ “his . . . petition would not have been summarily denied without an evidentiary hearing.” ’ ” (Lewis, supra, 11 Cal.5th at p. 974.) McCloud has done that much.

DISPOSITION

The trial court’s order denying the petition for resentencing is reversed.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.

[1] Subsequent statutory references are to the Penal Code.

[2] Because McCloud was under age 25 when he committed the crimes, he is entitled to a youth offender parole hearing in his 25th year of incarceration pursuant to section 3051, subdivision (b)(3).

[3] Because we reverse the denial of the petition on the merits, we need not decide whether McCloud’s attorney rendered ineffective assistance.

[4] We need not and do not decide whether this instruction was correct.