Filed 6/28/21 P. v. Myers 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B306667
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA061108)
v.
MARK DAMON MYERS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Gary J. Ferrari, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Matthew Rodriguez, Acting
Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Susan Sullivan Pithey, Assistant Attorney General,
Amanda V. Lopez and Nima Razfar, Deputy Attorneys General,
for Plaintiff and Respondent.
____________________________
Defendant and appellant Mark Damon Myers challenges
the trial court’s summary denial of his petition under Penal
Code1 section 1170.95 for resentencing on his murder conviction.
He argues that the trial court erred by denying his petition
without appointing counsel to represent him, and by determining
that the jury’s finding of a felony-murder special circumstance
(§ 190.2, subd. (a)(17)) made him ineligible for resentencing as a
matter of law. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
In 2006, a jury convicted Myers of one count of murder
(§ 187, subd. (a)), three counts of robbery (§ 211), one count of
preventing a witness from testifying (§ 136.1, subd. (a)(2)), and
one count of conspiracy (§ 182, subd. (a)(1)). In addition, the jury
found true an allegation of a felony-murder special circumstance
(§ 190.2, subd. (a)(17)). The trial court sentenced Myers to life in
prison without the possibility of parole.
In a nonpublished opinion, we described the facts of the
case: “Defendant, a member of the Eastside Longo criminal
street gang, was a longtime acquaintance of murder victim
Rudolpho Rodriguez and Rodriguez’s girlfriend, Christina James,
both of whom were methamphetamine users. Gregory Clark and
Jo’el Bruce, with whom defendant was also acquainted, lived next
door to defendant’s grandmother in the City of Signal Hill. At
one point defendant asked Clark if defendant could go into the
methamphetamine dealing business with Clark. Clark declined.
“On April 15, 2004, Rodriguez and James went to visit
Clark and Bruce at their home. As Rodriguez and James
1 Subsequent statutory references are to the Penal Code.
2
approached the Clark-Bruce house, they saw defendant standing
on the porch of his grandmother’s house. Defendant told
Rodriguez that he wanted to talk to him. Rodriguez agreed and
the two talked for five to 10 minutes while James visited with
Clark and Bruce. Rodriguez then joined James, Clark and Bruce
inside the Clark-Bruce residence.
“About five minutes later, defendant knocked on the door
of the Clark-Bruce residence and was let in by Clark. Defendant
was accompanied by two men, one of whom displayed a gun.
Defendant told those in the room that they were being ‘taxed’
and ordered them to hand over their valuables. Clark handed
over his rings and about $200 in cash. Three cell phones
were taken from James’s purse. Rodriguez asked defendant’s
two accomplices for their names. Defendant responded that
Rodriguez should not be concerned and that Rodriguez should
remember that defendant was from Eastside Longo.
“According to James, after the cell phones had been taken
from her purse the accomplice who had the gun told James to
take off her jewelry. Rodriguez then stood up, ‘said that they
would have to shoot him now,’ and hit defendant in the head.
Defendant said, ‘ “Shoot him, just shoot him,” ’ and the
accomplice with the gun shot Rodriguez.
“According to Clark, the accomplice with the gun pointed
it at Rodriguez and told Rodriguez to empty his pockets. After
doing so, Rodriguez said to defendant, ‘ “now you’re going to have
to shoot me.” And advanced on [defendant].’ Rodriguez ‘threw
the first punch’ and the two struggled ‘somewhat.’ Clark next
saw a flash, heard a gunshot, and saw Rodriguez fall to the floor.
Clark did not recall anyone saying, ‘Shoot him.’
3
“Following the shooting, defendant and his accomplices
fled. Rodriguez was taken to the hospital, where he died of a
single gunshot wound to the torso. The fatal bullet was recovered
from Rodriguez’s body. A spent bullet casing was found at the
scene.” (People v. Myers (Dec. 17, 2008, B206153) [nonpub. opn.]
(Myers).)
In his direct appeal, Myers argued that the trial court erred
by giving the jury instructions as to the special circumstance for
felony murder that were appropriate where the defendant was
the actual killer, even though the evidence showed Myers did not
kill the victim. We agreed but held that the error was harmless
beyond a reasonable doubt because Myers was, at a minimum,
a major participant in the robbery and acted with reckless
indifference to human life.2 (Myers, supra, B206153, at pp. 5–7.)
For this reason, “[w]e conclude[d] that a properly instructed jury
would have found true the robbery special circumstance alleged
against defendant.” (Id. at pp. 6–7.)
In 2018, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.) (Senate Bill No. 1437), which abolished
the natural and probable consequences doctrine in cases
of murder, and limited the application of the felony-murder
doctrine. (See People v. Gentile (2020) 10 Cal.5th 830, 842–843
(Gentile).) Under the new law, a conviction for felony murder
requires proof that the defendant was either the actual killer,
acted 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)(3).) The legislation also enacted
2 Because there was a dispute as to whether Myers ordered
his accomplice to shoot Rodriguez, we could not say conclusively
that Myers acted with the intent to kill.
4
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.)
Myers filed a petition for resentencing on February 25,
2020. The trial court summarily denied the petition on the
ground that the record of conviction, including our opinion in
his direct appeal, showed as a matter of law that he was a major
participant in the felony who acted with reckless indifference
to human life and was therefore ineligible for resentencing.
DISCUSSION
A. Background on Senate Bill No. 1437
Senate Bill No. 1437 includes both prospective and
retrospective provisions. Prospectively, the law amended
section 188 to provide that “[e]xcept as stated in subdivision (e)
of Section 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 effect of this amendment is
to “eliminate[ ] natural and probable consequences liability for
first and second degree murder.” (Gentile, supra, 10 Cal.5th at
p. 849.) In addition, Senate Bill No. 1437 enacted section 189,
subdivision (e), which restricted felony-murder liability to cases
in which the defendant was the actual killer, acted with the
intent to kill, or was a major participant in the underlying felony
and acted with reckless indifference to human life. (See Gentile,
supra, at pp. 842–843.)
5
The retroactive component of Senate Bill No. 1437 is
codified in section 1170.95. (See Gentile, supra, 10 Cal.5th
at p. 853 [“the Legislature intended section 1170.95 to be
the exclusive avenue for retroactive relief under Senate Bill
[No.] 1437”].) This section allows a defendant “convicted
of felony murder or murder under a natural and probable
consequences theory [to] file a petition” for resentencing
under the new law. (§ 1170.95, subd. (a).) To be eligible for
resentencing, a defendant must show that he “could not be
convicted of first or second degree murder because of changes
to Section 188 or 189 made effective” as a part of Senate Bill
No. 1437. (§ 1170.95, subd. (a)(3).)
The first step for a defendant to obtain relief under
section 1170.95 is to file a declaration affirming that he is
eligible for resentencing under the new law. (See § 1170.95,
subd. (b)(1).) The trial court reviews the petition, and if
the petition is incomplete, “the court may deny the petition
without prejudice to the filing of another petition and advise
the petitioner that the matter cannot be considered without
the missing information.” (§ 1170.95, subd. (b)(2).)
If the defendant’s petition is facially sufficient, the
trial court must determine whether the defendant has made
a prima facie case for resentencing under section 1170.95,
subdivision (c). As we described in People v. Lewis (2020) 43
Cal.App.5th 1128, 1139–1140, review granted March 18, 2020,
S260598 (Lewis), this is a two-step process. First, the court
“review[s] the petition and determine[s] if the petitioner has
made a prima facie showing that the petitioner falls within
the provisions of this section.” (§ 1170.95, subd. (c).) This is
“a preliminary review of statutory eligibility for resentencing,”
6
akin to an initial review of a petition for resentencing under
Propositions 36 and 47. (People v. Verdugo (2020) 44 Cal.App.5th
320, 329, review granted Mar. 18, 2020, S260493 (Verdugo).)
“The court’s role at this stage is simply to decide whether the
petitioner is ineligible for relief as a matter of law, making all
factual inferences in favor of the petitioner.” (Ibid.) In making
this decision, the trial court may consider the record
of conviction, including any prior appellate opinions in the case.
(Lewis, supra, at pp. 1137–1138; Verdugo, supra, at pp. 329–330.)
If the trial court does not deny the petition at this point,
“the court shall appoint counsel to represent the petitioner”
(§ 1170.95, subd. (c)) for the second stage of prima facie review.
The prosecutor then files a response, and the petitioner may file
a reply. The review at this stage “is equivalent to the familiar
decision[-]making process before issuance of an order to show
cause in habeas corpus proceedings, which typically follows an
informal response to the habeas corpus petition by the Attorney
General and a reply to the informal response by the petitioner.”
(Verdugo, supra, 44 Cal.App.5th at p. 328, review granted.)
Under this standard, “[i]f the petitioner makes a prima facie
showing that he or she is entitled to relief, the court shall issue
an order to show cause.” (§ 1170.95, subd. (c).)
If the court issues an order to show cause, it must hold
a hearing within 60 days to determine whether to vacate the
murder conviction. (§ 1170.95, subd. (d)(1).) At this third and
final stage of the proceeding, the prosecution has the burden
of proving “beyond a reasonable doubt[ ] that the petitioner is
ineligible for resentencing.” (§ 1170.95, subd. (d)(3).)
7
B. The Trial Court Did Not Err by Finding that
Myers Failed to Make a Prima Facie Case
Myers contends that the trial court erred by summarily
denying his petition. Although we held in our prior opinion in
this case that the felony-murder special circumstance was valid
because Myers was at least a major participant in the robbery
and acted with reckless indifference to human life, Myers argues
that this does not preclude him from relief under section 1170.95.
He notes that, in the years following his conviction, the Supreme
Court clarified the definition of major participation and reckless
indifference to human life in People v. Banks (2015) 61 Cal.4th
788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
Because no court has considered whether he was a major
participant who acted with reckless indifference under
the Banks/Clark standard, he contends that the trial court
could not have found as a matter of law that he was ineligible
for resentencing.
Within the past year, more than a dozen published opinions
in the Court of Appeal have considered this question, and have
reached divergent conclusions. We have addressed the issue
ourselves three times in People v. Galvan (2020) 52 Cal.App.5th
1134, review granted October 14, 2020, S264284 (Galvan), People
v. Murillo (2020) 54 Cal.App.5th 160, review granted November
18, 2020, S264978 (Murillo), and People v. Allison (2020) 55
Cal.App.5th 449 (Allison). In all three cases, we concluded that
a defendant with a pre-Banks/Clark felony-murder special
circumstance finding is ineligible for resentencing under
section 1170.95, and that the trial court did not err by summarily
denying a defendant’s petition on that basis. Our colleagues in
Division Two reached the same conclusion in People v. Nunez
8
(2020) 57 Cal.App.5th 78, review granted January 13, 2021,
S265918, as did Divisions One and Two of the Fourth Appellate
District, respectively, in People v. Gomez (2020) 52 Cal.App.5th 1,
review granted October 14, 2020, S264033, and People v. Jones
(2020) 56 Cal.App.5th 474, review granted January 27, 2021,
S265854, and most recently, the Fifth Appellate District, in
People v. Simmons (June 16, 2021, F079610) __ Cal.App.5th __
[2021 WL 2450646]. On the other hand, our colleagues in
Division Five of this district disagreed and held in People v.
Torres (2020) 46 Cal.App.5th 1168, review granted June 24,
2020, S262011, People v. Smith (2020) 49 Cal.App.5th 85, review
granted July 22, 2020, S262835, and People v. York (2020) 54
Cal.App.5th 250, review granted November 18, 2020, S264954,
that a pre-Banks/Clark felony-murder special circumstance
finding does not disqualify a defendant from resentencing under
section 1170.95. In People v. Harris (2021) 60 Cal.App.5th 939,
review granted, April 28, 2021, S267802, a panel in Division
Seven of this court reached the same conclusion, as did the
First Appellate District, Division Four in People v. Secrease
(2021) 63 Cal.App.5th 231, and the Fourth Appellate District,
Division Three in People v. Gonzalez (June 11, 2021, G057502)
___ Cal.App.5th ____ [2021 WL 2389887].
There is no need to repeat arguments that have been
thoroughly addressed in the above opinions. We stand by our
analysis in Galvan, Murillo, and Allison, and on that basis we
conclude that the trial court did not err by summarily denying
Myers’s petition. This does not leave Myers without any
means of challenging the validity of the special circumstance
finding, however. As we noted in Galvan, a defendant with a
pre-Banks/Clark special circumstance finding may challenge the
9
sufficiency of the evidence for the special circumstance by means
of a habeas corpus petition. (Galvan, supra, 52 Cal.App.5th at
p. 1141, review granted; In re Scoggins (2020) 9 Cal.5th 667,
673-674.) Myers filed a habeas corpus petition on March 21,
2019, which we denied “without prejudice to petitioner’s filing
a new petition in the superior court, in accordance with and
pursuant to Senate Bill No. 1437 and . . . section 1170.95.” At
the time we issued that order, we had not yet considered this
issue fully or reached the conclusion we reached in Galvan,
Murillo, Allison, and in this case. Given the evolution of our
jurisprudence on this issue, fairness dictates that our denial of
his previous petition should not prejudice Myers from filing a
new habeas corpus petition with this court pursuant to Galvan,
Murillo, and Allison.
DISPOSITION
The trial court’s order denying the petition for resentencing
is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.