People v. Fegan CA5

Filed 8/3/21 P. v. Fegan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F081054
Plaintiff and Respondent,
(Super. Ct. No. SUF18939)
v.

STEPHEN RUSSELL FEGAN, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from an order of the Superior Court of Merced County. Jeanne
Schechter, Judge.

Stephen M. Lathrop, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

*Before Poochigian, Acting P.J., Peña, J. and Meehan, J.
 INTRODUCTION
In 1995, a jury convicted defendant Stephen Russell Fegan of two counts of first
degree murder and found true allegations he personally used a knife with respect to those
counts. The jury also found true felony-murder special-circumstance allegations pursuant
to Penal Code section 190.2 alleging the murders were committed during the commission
or attempted commission of burglary and arson. (Undesignated statutory references are
to the Penal Code.) Defendant filed two petitions for writ of habeas corpus in January
2019 and raised, in part, a request for resentencing pursuant to section 1170.95. In March
2019, the trial court denied the petitions, including defendant’s request to recall his
sentence under section 1170.95. The court concluded defendant was not convicted under
a felony-murder theory; rather, he was convicted of two premeditated and deliberate
murders with multiple special circumstances under section 190.2, subdivision (d); “[h]e
was the actual killer.” The order denying the petition did not say it was made with
prejudice to refiling. In February and March 2020, defendant again filed petitions asking
the court to vacate his murder convictions pursuant to section 1170.95. The court
summarily denied the petitions, concluding these were “successive petitions on the same
issue.”
We conclude the record establishes petitioner is ineligible for resentencing as a
matter of law. Accordingly, we affirm the trial court’s order denying the petitions.
FACTUAL AND PROCEDURAL HISTORY
In 1995, a jury convicted defendant of the first degree murders of Teresa Leonard
and James Hartery (§ 187; counts 1 and 2), first degree burglary (§ 459; count 3), arson
of an inhabited structure or property (§ 451, subd. (b); count 4), and child taking (former
§ 277; count 5), and found true enhancement allegations that defendant personally used a
knife during the commission of the murders. The jury also found true special
circumstance allegations that defendant committed the murders during the commission or
attempted commission of arson (former § 190.2, subd. (a)(17)(viii) and burglary (former

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§ 190.2, subd. (a)(17)(vii)). The court sentenced defendant to life imprisonment without
the possibility of parole plus an additional year on each murder count, and additional
determinate terms for counts 3, 4, and 5. Our court affirmed defendant’s conviction in an
unpublished opinion. (People v. Fegan (Dec. 31, 1997, F025279).)
On January 9 and 31, 2019, defendant filed petitions for writ of habeas corpus. In
part, defendant asked the court to recall his sentence pursuant to section 1170.95. He also
alleged he received ineffective assistance of counsel at trial and during his appeal. He
further asserted the trial court erred in failing to instruct the jury on self-defense,
imperfect self-defense, and mental capacity defenses. He argued he was entitled to relief
as a youth offender under Assembly Bill No. 1308 (2017–2018 Reg. Sess.) and was
entitled to resentencing as provided for military personnel with mental health conditions
under Assembly Bill No. 865 (2017–2018 Reg. Sess.) (section 1170.91).
The People responded the court should summarily deny defendant’s request for
resentencing based on the passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill 1437) because he did not qualify for relief under section 1170.95. They
attached and referred to our appellate opinion from defendant’s direct appeal, which
included a statement of facts that was “essentially undisputed,” the denial of defendant’s
petition for review, and the remittitur for details of the case. The People explained these
documents established defendant drove to the house of his estranged wife, Teresa
Leonard, and her boyfriend, James Hartery. Defendant threw two Molotov cocktails
through the living room window before entering through the broken window. Defendant
then attacked James from behind, hitting him on the head with an axe and then stabbing
him multiple times with a knife. Teresa entered the room and defendant chased her and
stabbed her multiple times before leaving the home with their son. Both James and
Teresa died from their wounds. The People explained the record thus established
defendant was the actual killer and, therefore, was not entitled to relief.

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 The court denied the petitions for writs of habeas corpus on February 28, 2019,
finding defendant had not set forth the requisite facts for the granting of the petition.
With regard to defendant’s claim for relief under section 1170.95, the court reasoned that
defendant was not convicted under a felony-murder theory. Rather, “[h]e was convicted
of two premeditated and deliberate murders, with multiple special circumstances under
section 190.2(d). He was the actual killer.”
Approximately a year later, in February 26, 2020, defendant filed a petition for
resentencing pursuant to section 1170.95 using a preprinted form. He checked boxes
stating that a charging document had been filed against him allowing the prosecution to
proceed under a felony-murder theory or the natural and probable consequences doctrine;
at trial, he was convicted of first or second degree murder under a felony-murder theory
or the natural and probable consequences doctrine; and he could not now be convicted of
murder in light of changes made to sections 188 and 189, effective January 1, 2019
(pursuant to Senate Bill 1437). He also checked a box stating, “I request that this court
appoint counsel for me during this re-sentencing process.”
On March 2, 2020, defendant filed another petition for resentencing pursuant to
section 1170.95 using a preprinted form. He again checked boxes stating a charging
document had been filed against him allowing the prosecution to proceed under a felony-
murder theory or the natural and probable consequences doctrine; at trial, he was
convicted of first or second degree murder under a felony-murder theory or the natural
and probable consequences doctrine; and he could not now be convicted of murder in
light of changes made to sections 188 and 189, effective January 1, 2019 (pursuant to
Senate Bill 1437). He also checked a box stating, “I request that this court appoint
counsel for me during this re-sentencing process.” On March 5, 2020,1 defendant again

1Defendant’sbrief and the superior court’s order refer to this petition as being filed on
March 3, 2020; however, the file-stamp reflects a filing date of March 5, 2020.

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filed another petition for resentencing pursuant to section 1170.95 using a preprinted
form and checking the same boxes.
The court denied the petitions, stating:

“Stephen Russell Fegan (‘petitioner’) is currently confined at
California State Prison–Solano in Vacaville, California. On December 13,
1995, a Merced County jury found petitioner guilty of two murders, first-
degree burglary, arson, and child-taking. The jury also found multiple
enhancements and special circumstances to be true. On January 16, 1996,
petitioner was sentenced by the Honorable Dennis A. Cornell (‘trial court’)
to serve 11 years and 4 months plus life without the possibility of parole.

“On February 24,[2] February 26, March 2, and March 3, 2020,
petitioner filed petitions for resentencing under … section 1170.95. On
March 1, 2019, the court considered the same petition and denied it. These
petitions are denied as successive petitions on the same issue.

“On March 2 and March 3, 2020, petitioner filed petitions for
resentencing pursuant to … section 1170.18. He is asking for his
convictions to be converted into misdemeanors. His convictions do not
qualify for relief under this code section. As such, the petitions are
denied.”
DISCUSSION
Defendant appeals the March 2020 order denying his petitions for resentencing
pursuant to section 1170.95. We affirm the trial court’s order.
I. Senate Bill 1437 and Section 1170.95
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[s] the felony murder rule and the
natural and probable consequences doctrine, as it relates to murder, to ensure that murder
liability is not imposed on a person who is not the actual killer, did not act with the intent

2The clerk of the superior court filed an affidavit with our court stating the February 24,
2020, petition is not part of the court’s record. Defendant asserts he “is satisfied that only three
petitions were submitted for filing (i.e., the petitions filed February 26, 2020, March 2, 2020, and
March 3, 2020), which [were] contained in the record on appeal, and thus are the ones subject to
the court’s order of March 16, 2020.”

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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).) It amends section
188, which defines malice, and section 189, which defines the degrees of murder to
address felony-murder liability, and it adds section 1170.95, which provides a procedure
by which those convicted of murder can seek retroactive relief if the changes in the law
would affect their previously sustained convictions. (Stats. 2018, ch. 1015, §§ 2–4.)
Accordingly, section 188 now provides 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), italics added.) The change reflects the
Legislature’s intent that “[a] person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, “All murder … which is committed in
the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary,
mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288,
288a, or 289, or any murder which is perpetrated by means of discharging a firearm from
a motor vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in
part, by adding subdivision (e) which provides:

“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.”

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 Newly enacted section 1170.95 permits those “convicted of felony murder or
murder under a natural and probable consequences theory [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction vacated and
to be resentenced on any remaining counts ….” (Id., subd. (a).) An offender may file a
petition under section 1170.95 where all three of the following conditions are met:

“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine[;] [¶] (2) The
petitioner was convicted of first degree or second degree murder following
a trial or accepted a plea offer in lieu of a trial at which the petitioner could
be convicted for first degree or second degree murder[;] [¶] [and] (3) The
petitioner could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective January 1, 2019.”
(§ 1170.95, subd. (a)(1)–(3).)
A trial court receiving a petition under section 1170.95 “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.” (§ 1170.95, subd. (c).) If the petitioner has made such a
showing, the trial court “shall issue an order to show cause.” (Ibid.)
II. Analysis
Defendant contends his 2020 petitions for resentencing were facially sufficient and
the court erred by failing to appoint him counsel. He also argues the court erred by
summarily denying the petitions without issuing an order to show cause because he was
prosecuted under theories of felony murder and premeditated murder and the verdicts did
not specify the theory of conviction. He argues the special circumstance findings did not
render him ineligible for resentencing as a matter of law. Additionally, he asserts he was
not precluded from filing multiple petitions under section 1170.95, so the court erred in
denying his petitions as “successive petitions.” He also contends he is entitled to the
reversal of the court’s order because the court assigned his petitions to a judge other than
the original sentencing judge, though there was no showing the original sentencing judge

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was unavailable. We disagree with defendant’s contentions. Here, the record established
defendant was the actual killer, and the jury’s true findings on the felony-murder special-
circumstance enhancements rendered defendant ineligible for relief as a matter of law.
Thus, the court did not err in denying defendant’s petitions, and any alleged procedural
errors were harmless.
In its recent opinion, People v. Lewis (July 26, 2021, S260298) __ Cal.5th __
(Lewis) [2021 Cal. Lexis 5258], the California Supreme Court resolved a dispute among
the Courts of Appeal regarding when a trial court must appoint a petitioner counsel under
section 1170.95. The Lewis court held the statutory language and legislative intent of
section 1170.95 make clear that petitioners are entitled to the appointment of counsel
upon the filing of a facially sufficient petition, and that only after the appointment of
counsel and the opportunity for briefing may the superior court consider the record of
conviction to determine whether the petitioner makes a prima facie showing that he or
she is entitled to relief. (Lewis, supra, at pp. ___ [2021 Cal. Lexis 5258 at pp. *2, *10–
*13, *24–*28].)
The California Supreme Court nevertheless concluded the deprivation of a
petitioner’s right to counsel under subdivision (c) of section 1170.95 is state law error
only, tested for prejudice under People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra,
__ Cal.5th at pp. ____ [2021 Cal Lexis 5258 at pp. *3, *34–*36].) More specifically, a
petitioner “‘whose petition is denied before an order to show cause issues has the burden
of showing “it is reasonably probable that if [he or she] had been afforded assistance of
counsel his [or her] petition would not have been summarily denied without an
evidentiary hearing.”’ [Citation.]” (Id. at p. ___ [2021 Cal. Lexis 5258 at p. *36].)
And here, any error by the trial court in failing to appoint defendant counsel after
he filed his petition was harmless.. The record of conviction establishes defendant was
categorically ineligible for relief based upon the jury’s felony-murder special-

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circumstance findings.3 That is, section 189, as amended by Senate Bill 1437, now
permits a felony-murder conviction only when specified facts relating to the defendant’s
individual culpability have been proved. Among such circumstances, a felony-murder
conviction is permissible if the defendant 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. (§ 189, subd. (e).) Here, the jury found true felony-murder special-
circumstance allegations pursuant to section 190.2, former subdivision (a)(17)(iii), which
imposed sentences of death or life without the possibility of parole for a murder
committed during the commission, or attempted commission, of an arson or burglary.
(See § 190.2, subd. (a)(17)(A).) To make such findings, the jury was required to find that
the petitioner acted “with reckless indifference to human life and as a major participant”
in aiding or abetting the commission of the underlying felonies. (§ 190.2, subd. (d); see
People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 419.) In other words, “[t]he
language of the special circumstance tracks the language of Senate Bill 1437 and the new
felony-murder statutes.” (Gutierrez-Salazar, at p. 419.) Thus, by finding the special
circumstance allegations true, the jury made the requisite findings necessary to sustain
felony-murder convictions under the amended law. Defendant is therefore ineligible for
resentencing under section 1170.95 as a matter of law.
Defendant argues the special circumstance findings did not render him ineligible
for relief in light of People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark
(2016) 63 Cal.4th 522 (Clark), both decided after defendant’s convictions. We note that
“Banks and Clark ‘clarified “what it means for an aiding and abetting defendant to be a

3Our court has held the trial court may consider readily ascertainable facts from the
record (such as the crime of conviction) in determining whether a petitioner made a prima facie
showing of entitlement to relief. (People v. Aleo (2021) 64 Cal.App.5th 865, 871–873, citing
People v. Drayton (2020) 47 Cal.App.5th 965, 980.) Furthermore, our court has also expressly
held “it is appropriate to consider the record of conviction in determining whether the petitioner
was prejudiced by the trial court’s failure to … issue an order to show cause.” (People v.
Simmons (2021) 65 Cal.App.5th 739, 746.)

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‘major participant’ in a crime who acted with a ‘reckless indifference to human life.’”’
[Citation.] Banks identified certain factors to consider in determining whether a
defendant was a major participant; Clark identified factors to guide the determination of
whether the defendant acted with reckless indifference to human life.” (People v. Gomez
(2020) 52 Cal.App.5th 1, 13, fn. 5, review granted Oct. 14, 2020, S264033.) Courts of
appeal are currently split on the question of whether a special circumstance finding
entered prior to Banks and Clark renders a petitioner ineligible for section 1170.95
resentencing relief as a matter of law (see People v. Jones (2020) 56 Cal.App.5th 474,
478–479 [collecting cases], review granted Jan. 27, 2021, S265854), and our Supreme
Court has granted review to decide the issue (People v. Strong (Dec. 18, 2020, C091162),
review granted Mar. 10, 2021, S266606 [2020 Cal.App.Unpub. Lexis 8505; 2020 WL
7417057].)
However, our court has previously held we find more persuasive those cases
holding that a special circumstance finding precludes relief as a matter of law. (People v.
Simmons, supra, 65 Cal.App.5th at p. 749; accord, People v. Jones, supra, 56
Cal.App.5th at pp. 482, 484, review granted; People v. Nunez (2020) 57 Cal.App.5th 78,
92, review granted Jan. 13, 2021, S265918; People v. Allison (2020) 55 Cal.App.5th 449,
458.) And defendant does not persuade us to depart from our previous reasoning.
Banks and Clark did not state a new rule of law. (People v. Simmons, supra, 65
Cal.App.5th at p. 749.) Rather, they relied upon the United States Supreme Court’s
decisions in Enmund v. Florida (1982) 458 U.S. 782 (Edmund) and Tison v. Arizona
(1987) 481 U.S. 137 (Tison) to clarify principles that had long been in existence at the
time the petitioners were convicted. (See In re Miller (2017) 14 Cal.App.5th 960, 978;
accord, People v. Allison, supra, 55 Cal.App.5th at p. 458; People v. Gomez, supra, 52
Cal.App.5th at p. 13, fn. 5, review granted.) Enmund prohibited felony-murder liability
for a defendant who “did not commit the homicide, was not present when the killing took
place, and did not participate in a plot or scheme to murder,” and explained that, to be

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liable for felony murder, the aider and abettor must himself “kill, attempt to kill, or intend
that a killing take place or that lethal force will be employed.” (Enmund, at pp. 796,
797.) Tison held that “major participation in the felony committed, combined with
reckless indifference to human life, is sufficient to satisfy the Enmund culpability
requirement.” (Tison, at p. 158.) As Banks noted, this language from Tison was later
codified by the California electorate in section 190.2, subdivision (d). (Banks, supra, 61
Cal.4th at p. 800.) To the extent Banks and Clark illuminated factors a fact finder might
consider in determining whether a defendant was a major contributor who acted with
reckless indifference to human life, they drew those factors from Edmund and Tison.
(See Banks, supra, at pp. 801, 803; Clark, supra, 63 Cal.4th at pp. 615, 618–623.) These
principles existed when defendant was convicted and, absent a determination on direct
appeal or in a habeas corpus proceeding that the evidence was insufficient to support the
jury’s finding, there is no basis to conclude defendant’s jury applied different standards
than those described in Banks and Clark. Accordingly, we conclude defendant is
categorically ineligible for relief as a matter of law based on the jury’s special
circumstance finding. Thus, the trial court did not err in denying defendant’s petition
without issuing an order to show cause and holding an evidentiary hearing.
Furthermore, the record reflects, and defendant does not contest, that he was the
actual killer. Thus, he was also ineligible for relief as a matter of law under section
1170.95 on that basis. Accordingly, the court did not err in denying his petition, and any
alleged procedural error in failing to appoint defendant counsel during the petition
process was harmless. (See Chapman v. California, supra, 386 U.S. at p. 24; People v.
Watson, supra, 46 Cal.2d at p. 836.)
For the same reasons, we reject defendant’s contention reversal is required
because a judge other than the original sentencing judge ruled upon his petitions. In so
holding, we note section 1170.95, subdivision (b)(1) directs that a petition for
resentencing “shall be filed with the court that sentenced the petitioner …. If the judge

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that originally sentenced the petitioner is not available to resentence the petitioner, the
presiding judge shall designate another judge to rule on the petition.” And the Second
District Court of Appeal, Division Five, has held that this provision requires “the
individual public official” who sentenced the petitioner to rule on the petition unless the
record shows the presiding judge of the superior court determined that person was “not
available” to do so. (People v. Santos (2020) 53 Cal.App.5th 467, 474.)
But because, as discussed above, the record conclusively establishes defendant
was ineligible for relief under section 1170.95 as a matter of law as he was convicted
under still-valid theories of murder, any alleged error in assigning the petition to a judge
other than the sentencing judge without a showing that the sentencing judge was
unavailable was harmless. (See People v. Daniel, supra, 57 Cal.App.5th at p. 679,
review granted.)4
Accordingly, we reject defendant’s contentions. The court did not err in denying
defendant’s petitions for resentencing or otherwise commit reversible error.
DISPOSITION
The court’s order denying defendant’s petitions for resentencing is affirmed.

4Notably, the People contend the original sentencing judge in this matter, Honorable
Dennis A. Cornell, was appointed to this court in 2000, rendering defendant’s complaint moot
that there was no showing the original sentencing judge was unavailable. They ask us to take
judicial notice pursuant to Evidence Code section 452 of the fact Justice Cornell was appointed
to our court in 2000. We need not address these contentions, however, based on our conclusion
any alleged procedural error in this regard was harmless.

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