People v. Loyd CA1/4

Filed 1/15/21 P. v. Loyd CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,
A159458
v.
DANIEL RAY LOYD, (Lake County
Super. Ct. No. CR-927420)
Defendant and Appellant.

Daniel Ray Loyd appeals the denial of a petition under Penal Code
section 1170.95,1 which authorizes resentencing of persons convicted of felony
murder under circumstances that no longer support a conviction of felony
murder under section 189 as modified by Senate Bill No. 1437 (2017-2018
Reg. Sess.). Appellant was convicted of felony murder for causing the death of
Cindy Quiett by unintentionally shooting her during an attempted robbery.
Appellant contends that the trial court erred by denying his resentencing
petition without holding an evidentiary hearing to consider a theory not
raised at his trial, that Quiett was actually killed by a bullet fired by an
unidentified second shooter. However, the jury necessarily found that
appellant was Quiett’s actual killer, and section 1170.95 does not entitle him
to relitigate that fact. We will affirm the order denying his petition.

1 All statutory references are to the Penal Code.

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 Factual and Procedural History
This court affirmed appellant’s conviction in People v. Loyd (Dec. 5, 2017,
A149159 [nonpub. opn.]). The opinion describes how appellant’s girlfriend
arranged to meet Joey Ryden to buy drugs. Quiett was Ryden’s girlfriend.
She accompanied Ryden to the designated meeting place. Appellant
attempted to rob Ryden, pointing a loaded gun at his face. Ryden hit
appellant’s arm directing the gun away from him but causing appellant to
fire a bullet that fatally struck Quiett. It was undisputed that appellant did
not intend to shoot Quiett.
At trial, it also was undisputed that the bullet fired from appellant’s gun
caused Quiett’s death. Appellant’s appointed counsel, J. David Markham, did
not offer evidence or argue that anyone else at the scene had fired or carried a
gun. This approach was contrary to the wishes of appellant, who had filed
several unsuccessful pretrial motions for the appointment of new counsel
(People v. Marsden (1970) 2 Cal.3d 118) based on his complaint that Markham
had not adequately investigated and was refusing to present a “second
shooter” theory.
The jury found appellant guilty of first degree murder (§ 187, subd. (a)),
attempted robbery (§§ 211, 664), assault with a firearm (§ 245, subd. (a)(2)),
and being a felon in possession of a firearm (former § 12021, subd. (a)(1)) and
ammunition (former § 12316, subd. (b)(1)). The jury found true special-
circumstance allegations that appellant committed the murder during an
attempted robbery (§ 190.2, subd. (a)(17)) and that he personally used a
firearm during the offenses (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a),
12022.53, subd. (b)).
After the verdict, the court appointed new counsel, William Conwell,
who filed a motion for new trial contending that Markham’s failure to develop

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a second-shooter theory had denied appellant the effective assistance of
counsel. The court denied the motion.
This court affirmed appellant’s conviction. Appellant contended on
appeal that the court should have instructed the jury that “if it found that
‘Ryden’s conduct’ caused Quiett’s death, appellant could not be convicted of
felony-murder.” (People v. Loyd, supra, A149159 [nonpub. opn.].) In appellant’s
view, evidence that Ryden “ ‘caus[ed] appellant’s firearm to point at [Quiett]
and discharge without appellant relinquishing contact with it’ raised a ‘jury
question as to whether appellant or Ryden caused the fatal shot.’ ” (Ibid.) This
court rejected the contention, observing that the argument “conflates two
distinct issues: the commission of the fatal act and the legal cause of Quiett’s
death. Only one person committed the fatal act of pulling the trigger and
shooting the gun—that person was appellant.” (Ibid.) Even if Ryden’s conduct
contributed to the fatal shooting, the opinion explained, that did not preclude
the finding that appellant’s conduct was also a legal cause of the killing. This
was not “a variant of the third-party shooter scenario,” as appellant
contended, for he “was the only shooter here.” (Ibid.) In rejecting the related
claim that the jury should have been instructed on the doctrine of
provocative-conduct murder,2 the opinion stated, “[a]s appellant implicitly
concedes, Ryden did not wrest the gun from appellant or attempt to shoot
anyone. Appellant shot the gun that [fired the bullet that] fatally struck
Quiett.” (Ibid.)

2 The doctrine of provocative-conduct murder would have enabled the
jury to find appellant guilty of second rather than first degree murder. Under
that doctrine, a person can be held “vicariously liable for a killing by a third
party” if the third party’s fatal act was a reasonable response to a malicious
act committed by the defendant during a violent felony. The doctrine did not
apply, given that “appellant himself committed the fatal act.”

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 The prior opinion also upheld the denial of appellant’s Marsden and
new-trial motions, which claimed that Markham had provided ineffective
assistance by failing to develop and present a “second shooter” theory.
Appellant pointed out that Quiett’s exit wound was lower than the entrance
wound, and argued that therefore either the shooter had been at a higher
elevation than Quiett, which he had not been, or that she had been leaning
forward when the bullet hit her.
In response to three Marsden motions, Markham explained that the
ballistics expert he retained had concluded that the fact that “the exit wound
. . . was lower than the entrance wound did not exclude appellant as [the]
killer.” (People v. Loyd, supra, A149159 [nonpub. opn.].) In appellant’s view,
that analysis “hinged on the premise that Quiett was leaning forward when
she was shot,” so appellant “wanted Markham to argue that Quiett was
standing erect when she was shot by a second[,] unknown assailant.
Markham explained that he did not have sufficient evidence to present this
theory because nobody saw Quiett before she was shot and there was no
evidence of a second shooter.” (Ibid.) Although some witnesses said that they
had seen Quiett standing, those witnesses had not seen her when she was
shot.
In opposing the new-trial motion, the prosecutor relied on “the dearth
of credible evidence to support appellant’s second shooter theory and a
detailed declaration from Markham [about] his investigation of the case and
strategies.” (People v. Loyd, supra, A149159 [nonpub. opn.].) At an evidentiary
hearing on the motion, “the defense elicited testimony from a new expert who
opined that if Cindy Quiett was standing erect when she was shot,
appellant’s bullet could not have killed her, but she could have been killed by
an assailant shooting down at her from a higher area.” (Ibid.) The trial court

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denied the motion in a lengthy order. It “conducted an extensive review of the
trial evidence before concluding that this theory was not a potentially
meritorious defense, pointing out that, among other things, nobody reported
hearing two shots; there was no evidence that Quiett was standing erect when
she was shot; and there was ‘no other shooter suspect.’ In light of the
evidentiary record, the court concluded that using the location of the exit
wound . . . to argue there was a second shooter was speculative and fanciful.
Furthermore, because the other shooter theory was ‘a country mile away from
being a potentially meritorious defense,’ it was not reasonably probable that
the outcome would have been more favorable to the defense if that theory had
been presented at trial.” (Ibid.)
In affirming that ruling, this court held that Markham’s investigation
had been thorough and reasonable. The defense investigator who conceived
the second-shooter theory was not a ballistics expert, and the expert retained
by Markham “was unable to offer an opinion that the lethal bullet was not
shot from appellant’s gun.” (People v. Loyd, supra, A149159 [nonpub. opn.].)
Markham nonetheless arranged for two investigators to keep searching for
evidence of a second shooter—to no avail. He had Quiett’s clothing “tested for
gunshot residue or other evidence,” but the results neither suggested a second
shooter nor excluded appellant’s gun as the source of the fatal bullet.
Moreover, even if appellant could have shown deficient performance, he
would also have needed to show that Markham’s failure to argue the second-
shooter theory caused prejudice. This was a burden appellant could not bear:
“There was overwhelming evidence that the bullet that killed Quiett came
from appellant’s gun. Furthermore, there was no evidence that anybody other
than appellant had or used a gun at the time that Quiett was shot and killed.
If Markham had argued otherwise, it is not reasonably probable that the

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outcome of the trial would have been more favorable to appellant.” (People v.
Loyd, supra, A149159 [nonpub. opn.].)
In the section 1170.95 petition now at issue, appellant reprised the
arguments from his Marsden and new-trial motions. Initially, appellant filed
a form section 1170.95 petition in which he simply checked boxes indicating,
among other things, “I was not the actual killer.” His petition asked the court
to appoint counsel, and the court did so. After the People filed an opposition to
the petition, attaching a copy of this court’s opinion affirming appellant’s
conviction, counsel filed a supplemental petition containing extracts of
testimony from the trial and from the hearing on the motion for a new trial.
The supplemental petition states that “additional evidence was presented
during the new trial motion to cause doubt that [appellant] fired the shot that
killed Ms. Quiett,” and that “there was evidence presented at trial and the
new trial hearing to support the theory of a second shooter, namely the
downward path of the wound.”3 In oral argument on the petition, counsel
argued that “what has not really been addressed . . . is the issue that Daniel
Loyd may not have been the shooter [in] this case.” The attorney
acknowledged that “yes, he fired a gun,” but asserted that evidence “raised
during the new trial motion” had “cast doubt as to whether or not the bullet
from that gun is the bullet that hit Ms. Quiett and killed her.”
The trial court held that appellant had not made a prima facie showing
that he is entitled to relief.4 He made no showing “that he was an

3Appellant also noted evidence of two 911 calls made that night. This
strand of the argument is cryptic, but seems intended to imply that there
may have been two gunshots.
4 Thecourt also held in the alternative that Senate Bill No. 1437 is
unconstitutional, but the Attorney General concedes on appeal that
subsequent authority has settled the constitutionality of the statute. (People

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accomplice,” and “[t]here is substantial evidence that [appellant] was the
perpetrator of the felony robbery and that it was [appellant] holding the
loaded gun, finger on the trigger, pointing at the intended victim, when in a
type of struggle with the intended victim over the gun, the gun [went] off and
kill[ed] Quiett. In this analysis, [appellant] is the actual killer.” He “could
still be convicted of felony murder under the current law,” and the “evidence
and argument present[ed] on a defense theory of a ‘second shooter’ would not
prohibit the . . . conviction under [the] current law of felony murder.”
Appellant timely appealed.
Discussion
Senate Bill No. 1437 “significantly modif[ied] the law relating to
accomplice liability for murder.” (People v. Verdugo (2020) 44 Cal.App.5th
320, 325, review granted, Mar. 18, 2020, S260493.) The legislation
“ ‘amend[ed] the felony murder rule . . . to ensure that murder liability is not
imposed on a person who is 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.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)”
(People v. Gentile (2020) 10 Cal.5th 830, 842.)5

v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270; People v. Lamoureux
(2019) 42 Cal.App.5th 241.)
5 Senate Bill No. 1437 added section 189, subdivision (e): “A participant
in the perpetration or attempted perpetration of [qualifying felonies] 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.” (Stats. 2018, ch. 1015, § 3.)

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 Senate Bill No. 1437 also enacted section 1170.95, which authorizes
petitions for resentencing. Subdivision (a) of the statute requires a petitioner
to allege that he or she could not be convicted of murder because of changes in
sections 188 and 189 made by Senate Bill No. 1437. Subdivision (c) creates a
procedure to resolve such a petition: “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.” The court appoints
counsel (if requested), the prosecutor files a response, and the petitioner may
file a reply.6 (Ibid.) “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.” (Ibid.)
Accordingly, a court will not hold an evidentiary hearing unless it first finds a
prima facie showing of entitlement to relief. (People v. Edwards (2020)
48 Cal.App.5th 666, 673, review granted July 8, 2020, No. S262481.)7

6 We need not address the conflict between decisions holding that section
1170.95 requires two distinct reviews of a petition’s prima facie sufficiency—
one before a court appoints counsel or orders a response, and another before it
orders an evidentiary hearing (e.g., People v. Verdugo, supra, 44 Cal.App.5th
at pp. 327–328)—and the decision by our colleagues in Division One holding
that the statute requires only one prima facie review (People v. Cooper (2020)
54 Cal.App.5th 106, 118, review granted Nov. 10, 2020, No. S264684). The
trial court in this case appointed counsel and ordered a response, and it
declined to order an evidentiary hearing only after considering counsel’s
arguments.
7 When it ruled on the petition, the trial court did not have the benefit of
People v. Drayton (2020) 47 Cal.App.5th 965, which details how to analyze
the prima facie sufficiency of a section 1170.95 petition. A court must identify
all allegations in the petition that are not contrary to facts conclusively
established by the record of conviction and—without engaging in factfinding
or weighing the evidence offered to support those allegations—assume their
truth, and assess whether they state a prima facie case for relief. (Id. at
pp. 977–978; cf. People v. Garcia (2020) 57 Cal.App.5th 100, 116 [disagreeing
with Drayton regarding standard for prima facie sufficiency].) Because the

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 The record before the trial court establishes that the jury found that
appellant was the actual killer. Whether or not Ryden’s act of pushing
appellant’s arm was a legal cause of Quiett’s death, appellant pulled the
trigger of the gun that fired the fatal bullet.8 As stated in this court’s prior
opinion, “[a]s appellant implicitly concedes, Ryden did not wrest the gun from
appellant or attempt to shoot anyone. Appellant shot the gun that [fired the
bullet that] fatally struck Quiett.” There was no dispute at trial that Quiett
was killed by a single gunshot, and appellant conceded in the hearing on this
petition that he fired a gunshot. The only dispute at trial was whether
appellant was legally responsible for firing that shot. Appellant’s main claim
for section 1170.95 relief is the same contention that underlay his new-trial
motion—that there is evidence suggesting that a bullet fired by an
unidentified “second shooter” killed Quiett. But as the trial court properly
held in denying the new trial motion, this theory was “speculative and
fanciful,” and it remains so. Even if the felony murder instruction given at
trial would have permitted the jury to convict appellant if his shot did not kill
the victim, the evidence before the jury contained no basis for concluding
there was a second shooter. And the current petition proffers no new or
additional evidence that could support any conclusion other than that
appellant fired the shot that killed Quiett, albeit accidentally. The purpose of
section 1170.95 is to provide relief if the facts no longer support a felony
murder conviction under current law. There being no proffer of evidence to

allegations in appellant’s petition fail as a matter of law to make a prima
facie showing, any analytic missteps in the trial court’s order are immaterial.
8 The Attorney General equates the jury’s special-circumstance finding
that appellant personally “used” a firearm with an express finding that he
fired the gun, but as appellant notes, none of the enhancements at issue
necessarily requires that the defendant have fired the gun. (§§ 1203.06,
subd. (a)(1), 12022.5, subd. (a), 12022.53, subd. (b).)
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support any such fact, there was no prima facie showing that would establish a
right to relief under the new statute. Senate Bill No. 1437 did not change the
law making the “actual killer” of a person killed in the course of certain
felonies (including attempted robbery) liable for first degree murder, even if
the killing was not intended. (See People v. Jackson (2016) 1 Cal.5th 269, 347.)
In his reply brief, appellant raises a new argument. He suggests that
he may not qualify as an “actual killer” under a recent analysis of that term
in People v. Garcia (2020) 46 Cal.App.5th 123 (Garcia). Appellant
acknowledges that the “actual killer” need not have intended to kill but
contends that “the term ‘actual killer’ as used in amended . . . section 189
must be construed to require proof that the defendant intended to do the act
that caused the death.”
Garcia does not support that theory. Garcia involved a home-invasion
robbery in which one of the robbers put tape over the victim’s mouth, leading
to his death by asphyxiation. (Garcia, supra, 46 Cal.App.5th at pp. 145–146.)
The robbers did not intend to kill the victim. (Id. at p. 143.) The Court of
Appeal held that the record would permit a finding that a defendant was an
“actual killer” for purposes of a felony-murder special circumstance (§ 190.2,
subd. (b)) only if it contained substantial evidence that the defendant himself
personally put tape on the victim’s face. (Id. at p. 145; see also id. at p. 151
[“Although section 190.2(b) does not define the phrase ‘actual killer,’ the
California Supreme Court has used the term ‘personally killed’ when
describing liability of an ‘actual killer’ for the felony murder special
circumstance under section 190.2.”].) The dispute in Garcia was not whether
the defendant intended to perform the act that caused the victim’s death (i.e.,
putting tape on his mouth), but whether it was the defendant or someone else
who performed that fatal act. In this case, the jury necessarily found that

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appellant performed the fatal act of pulling the trigger of the gun that fired
the bullet that killed Quiett.
Senate Bill No. 1437 did not change the longstanding rule that a
defendant is guilty of felony murder if that defendant, while intending to
commit a qualifying felony, personally performs an act that causes death,
regardless of whether the fatal act was intentional or accidental. “Except for
felony murder, section 188(a)(3) makes personally possessing malice
aforethought a necessary element of murder.” (People v. Gentile, supra,
10 Cal.5th at p. 846, italics added.) In People v. Coefield (1951) 37 Cal.2d 865,
a robber struck a store clerk in the head with his pistol to “knock him out,”
but the gun discharged, killing the man. (Id. at pp. 867–868.) The Supreme
Court held that section 189 applies to any killing during the commission of a
robbery “regardless of whether it was intentional or accidental.” (Id. at
p. 868; accord, People v. Billa (2003) 31 Cal.4th 1064, 1068 [“felony-murder
rule covers ‘a variety of unintended homicides resulting from reckless
behavior, or ordinary negligence, or pure accident’ ”]; see also People v.
Washington (1965) 62 Cal.2d 777, 781 [“inadvertent or accidental killings are
first degree murders when committed by felons in the perpetration of
robbery”]; Garcia, supra, 46 Cal.App.5th at p. 152.)
Disposition
The order denying the petition is affirmed.

POLLAK, P. J.

WE CONCUR:

STREETER, J.
TUCHER, J.

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