Opinion
E075089
05-05-2021
THE PEOPLE, Plaintiff and Respondent, v. MARTIN MAJOR MCLAUGHLIN, Defendant and Appellant.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CR42433) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1993, defendant Martin Major McLaughlin was tried and convicted of first degree murder (Pen. Code, § 187), with findings that he personally used a firearm (§ 12022.5), and a special circumstance finding that the murder was committed during a robbery (former § 190.2, subd. (a)(17)(i), currently numbered § 190.2, subd. (a)(17)(A)). He was sentenced to life without possibility of parole (LWOP) plus a consecutive term of 4 years for the gun use enhancement. In 2019, following enactment of Senate Bill No. 1437 (Senate Bill 1437) and section 1170.95, defendant petitioned for resentencing, but the petition was denied. He appeals the denial of that petition.
All further statutory references are to the Penal Code, unless otherwise indicated.
On appeal, defendant argues that the trial court improperly denied the petition where the People failed to establish that defendant was not convicted as an aider/abettor to the felony-murder or that he was not convicted under the natural and probable consequences theory. We affirm.
BACKGROUND
We take the background facts relating to the offense from our unpublished opinion filed in the direct appeal, case No. E013276, People v. McLaughlin, filed on September 2, 1994:
Banning Police Officer Robert Stafford was patrolling the area around Blanchard and George Street in Banning at 9:47 p.m. on November 10, 1991. Drug dealers openly sold drugs in the area to buyers who would drive up and buy drugs while sitting in their vehicles. Sometimes buyers would be robbed by the dealers.
That evening, Stafford saw a body lying on the ground next to a truck parked on George Street. The driver's door was closed with the window partially open, the truck engine was running, the transmission was in drive and the passenger door was open.
Earlier that evening the victim, Joel Youngs, was driving around the area in his truck with two women. They returned to Blanchard and George Street to buy some drugs. Youngs gave one of the women some money from his wallet to buy drugs. As the woman entered a house to buy the drugs, she remarked to a group of people, which included defendant, that Youngs had a lot of money on him. The people in the group then engaged in a brief conversation.
Defendant, carrying a gun, walked up to the driver's door of Youngs's truck and demanded that Youngs open the door. When Youngs refused, defendant pounded on the window with his gun and demanded Youngs open the door. Defendant then fired the gun twice at very close range killing Youngs. Defendant then ran from the scene.
Youngs's wallet was never recovered. Officers found defendant's fingerprints on the driver's side window of Youngs's truck.
Defendant was charged and convicted by a jury of first degree murder. (§ 187.) The jury also made true findings as to the special circumstance allegation that the murder was committed during the commission of a robbery (§§ 190.2, subd. (a)(17), 211), and that defendant personally used a firearm (§ 12022.5). He was sentenced to LWOP for the special circumstances murder, plus a consecutive 4-year term for the personal use of the firearm. Defendant appealed that conviction, and we affirmed in full. (People v. McLaughlin, supra, E013276, [nonpub. opn.].)
On October 28, 2020, we granted the People's unopposed request to take judicial notice of the appellate record in case No. E013276, including our unpublished opinion in that case.
On August 6, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. His petition alleged that he was convicted of first or second degree murder under the felony-murder theory or natural and probable consequences theory, that he could not now be convicted of first or second degree murder because of changes to sections 188 or 189, and that he was not the actual killer.
On February 21, 2020, the court denied the petition. Defendant appealed.
DISCUSSION
Defendant argues that his section 1170.95 petition should have been granted because the People never established that the jury did not convict him on a felony-murder or a natural and probable consequences theory. As we will explain, defendant was, indeed, convicted under a felony-murder theory, but he was not charged or convicted as an aider/abettor or under a natural and probable consequences theory. Instead, the record of conviction shows he was the actual killer, and, under section 1170.95, is therefore not entitled to relief.
Senate Bill 1437 was passed in 2018 and became effective in January 2019. The Legislature passed the bill after determining that there was further "need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides." (Stats. 2018, ch. 1015, § l, subd. (b).)
The legislation accomplished this, in part, by amending section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder shall act with malice aforethought, and that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (Stats. 2018, ch. 1015, § 2; In re R.G. (2019) 35 Cal.App.5th 141, 144.) Under these amendments, the natural and probable consequences doctrine can no longer be used to support a murder conviction. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1103 & fn. 9 [review granted November 13, 2019, S258175]; Stats. 2018, ch. 1015, § 1(f).)
The change did not, however, alter the law regarding the criminal liability of direct aiders and abettors of murder because such persons necessarily "know and share the murderous intent of the actual perpetrator." (People v. McCoy (2001) 25 Cal.4th 1111, 1118; see People v. Chiu (2014) 59 Cal.4th 155, 167 [a direct aider and abettor "acts with the mens rea required for first degree murder"].) One who directly aids and abets another who commits murder is thus liable for murder under the new law just as he or she was liable under the old law. Nor did the law affect persons convicted as the actual killer.
Amended section 189 limits first degree murder liability based on a felony-murder theory to a person who: (1) was the actual killer; or (2) although not the actual killer, intended to kill and assisted the actual killer in the commission of first degree murder; or (3) was a major participant in the underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e).) In so doing, Senate Bill 1437 ensures that murder liability is not imposed on a person who did not act with implied or express malice, was 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. (People v. Munoz (2019) 39 Cal.App.5th 738, 749-750, review granted November 26, 2019, S258234.)
Senate Bill 1437 also added section 1170.95, which permits a person convicted of murder under a felony-murder or natural and probable consequences theory to petition the court to have the murder conviction vacated and to be resentenced. (§ 1170.95, subds. (a) & (e).) Section 1170.95 requires that the petition be filed in the sentencing court, and must include the petitioner's declaration showing eligibility, the case number, the year of conviction, and any request for counsel. (§ 1170.95, subd. (b); People v Verdugo (2020) 44 Cal.App.5th 320, 327 [review granted March 18, 2020, S260493] (Verdugo).)
Section 1170.95, subdivision (a) provides that a person convicted of felony-murder or murder under a natural and probable consequences theory may petition the trial court to have his or her murder conviction vacated or be resentenced, asserting the petitioner could "not be convicted of first or second degree murder because of changes to Section[s] 188 or 189" made by Senate Bill 1437. (§ 1170.95, subd. (a), People v. Lewis (2020) 43 Cal.App.5th 1128, 1135-1136 [review granted March 18, 2020, S260598] (Lewis).) Subdivision (c) of section 1170.95 describes the next stage of the petition process: "The court shall review the petition and determine if the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. The prosecutor shall file and serve a response within 60 days of service of the petition and the petitioner may file and serve a reply within 30 days after the prosecutor['s] response is served. These deadlines shall be extended for good cause. If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause."
In Verdugo, supra, the court interpreted this provision as providing for a multi-step process in evaluating a section 1170.95 petition. An initial review is conducted to determine the facial sufficiency of the petition. If the trial court determines a petitioner has made a prima facie showing of eligibility for relief, the court proceeds to the "second" inquiry into the prima facie showing under section 1170.95(c). (Verdugo, supra, 44 Cal.App.5th at p. 330 [review granted March 18, 2020, S260493].) In this second step, the trial considers whether the petitioner has made a prima facie showing of entitlement to (rather than eligibility for) relief. (Id. at pp. 327-330, rev.gr.; People v. Tarkington (2020) 49 Cal.App.5th 892, 897, citing People v. Torres (2020) 46 Cal.App.5th 1168, 1177-1178; People v. Drayton (2020) 47 Cal.App.5th 965, 975-976 [§ 1170.95 provides for two separate prima facie reviews, with the first focused on eligibility for relief and the second on entitlement to relief].)
At this level of evaluation, the trial court's authority to make factual determinations at the prima facie stage "'is limited to readily ascertainable facts from the record (such as the crime of conviction).' [Citation.]" (People v. Duchine (2021) 60 Cal.App.5th 798, 812.) Thus, "[i]f a defendant asserts he lacked the requisite intent or did not act in a manner that would make him liable under still-valid murder theories, unless the record of conviction refutes those assertions as a matter of law, the defendant has met his prima facie burden." (Id. at p 813, citing Drayton, supra, 47 Cal.App.5th at p. 980.)
In Lewis, the reviewing court held that, in determining whether the petitioner has stated a prima facie basis for relief, a trial court may consider the record of conviction, a question currently pending in the California Supreme Court. (Lewis, supra, 43 Cal.App.5th at p. 1137.) The court reached this conclusion by considering analogous situations where trial courts are permitted to consider their own files and the record of conviction in evaluating a petitioner's prima facie showing of eligibility for relief. (Ibid., [referring to § 1170.18, enacted by Proposition 47, where a person convicted of certain felonies that have been legislatively redefined as misdemeanors], citing People v. Page (2017) 3 Cal.5th 1175, 1179.) The Lewis court observed that in such petitions, a trial "court undertakes an "'initial screening'" of the petition to determine whether it states "'a prima facie basis for relief.'"" (Lewis, supra, 43 Cal.App.5th at p. 1137, citing People v. Washington (2018) 23 Cal.App.5th 948, 953, 955 [noting that in evaluating the petition at that stage, the court is permitted to examine the petition "'as well as the record of conviction.'"].)
In Drayton, the reviewing court also considered the record of conviction, comparing this second level of "prima facie eligibility review" as akin to the review conducted by courts in determining whether a defendant in a habeas proceedings has made a prima facie showing of entitlement to an order to show cause. (Drayton, supra, 47 Cal.App.5th at pp. 977-978.) There, court observed that "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.'" (Drayton, supra, 47 Cal.App.5th at p. 979, citing In re Serrano (1995) 10 Cal.4th 447, 456.) However, in that case, the reviewing court reversed the denial of a petition because the trial court denied the petition after making credibility determinations where there were "no facts in the trial court record that, as a matter of law, refuted Drayton's assertion that he had been convicted of first degree murder on a theory of felony murder." (Drayton, supra, 47 Cal.App.5th at p. 981.)
Here, the defendant's petition alleged he was convicted under the felony-murder doctrine but that he was not the actual killer. This assertion is directly refuted by the record of conviction which demonstrates the jury found he personally used a firearm and made a true finding on the felony-murder special circumstance. It would result in an unnecessary expenditure of judicial time and resources to require a trial court to issue an order to show cause and conduct an evidentiary hearing in a case such as this, based solely on the defendant's check mark in a box stating, "I was not the actual killer," where the record of conviction demonstrates otherwise.
A defendant who was convicted based on a record demonstrating that he was the actual killer is ineligible for resentencing under section 1170.95. (People v. Cornelius (2020) 44 Cal.App.5th 54, 58 [review granted March 18, 2020, S260410].) In Cornelius, the reviewing court concluded the jury implicitly found the defendant was the actual killer because it found he personally and intentionally used a firearm to commit the crime, rendering the statutory changes inapplicable to him. (Ibid.) Here, the jury's true finding he personally used the firearm reveals he was the actual killer, and there is no indication that anyone else present at the commission of the robbery-murder had a firearm or fired a shot, much less killed the victim.
The bare allegations by defendant that he is eligible for relief were directly refuted by the record of conviction demonstrating he was the actual killer. Because the amended provisions of sections 188 and 189 do not affect persons who were convicted as being the actual killer, defendant is not entitled to relief.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.