Filed 8/31/21 P. v. Myers CA2/1
Opinion after vacating opinion filed on 6/28/21
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
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 hold that the failure to appoint counsel was
harmless error, and on that basis, we 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.
1 Subsequent statutory references are to the Penal Code.
2
“On April 15, 2004, Rodriguez and James went to visit
Clark and Bruce at their home. As Rodriguez and James
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
3
saw a flash, heard a gunshot, and saw Rodriguez fall to the floor.
Clark did not recall anyone saying, ‘Shoot him.’
“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
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
underlying felony and acted with reckless indifference to
human life.” (§ 189, subd. (e)(3).) 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.)
Myers filed a petition for resentencing on February 25,
2020. The trial court did not appoint counsel to represent Myers,
and 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
Myers contends that the trial court erred by denying
his petition without appointing counsel to represent him. The
Attorney General concedes this is the case, and we agree. In
People v. Lewis (2021) 11 Cal.5th 952, 960−970 (Lewis), the
Supreme Court held that the trial court must appoint counsel to
represent the petitioner in all cases where, as here, the petition
is facially sufficient.3
This is not the end of our inquiry, however. The failure
to appoint counsel in a proceeding under section 1170.95 is an
error of state statutory law only, and is not a violation of the
3 After the parties had filed their briefs in this case, the
Supreme Court released its opinion in Lewis. We allowed the
parties to file supplemental briefs to explain how Lewis affects
this case.
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defendant’s constitutional rights. (Lewis, supra, 11 Cal.5th at
pp. 972−973.) We therefore review for harmless error under
the Watson4 standard, under which the defendant “must . . .
‘demonstrate there is a reasonable probability that in the absence
of the error he . . . would have obtained a more favorable result.’ ”
(Id. at p. 974.) This means he “ ‘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.” ’ ” (Ibid.)
To avoid summary denial, a petitioner must make a
prima facie case 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).) At the prima facie stage, the court applies a
standard of review “analogous” to the “prima facie inquiry in
habeas corpus proceedings.” (Lewis, supra, 11 Cal.5th at p. 971.)
In this review, “ ‘ “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.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘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.” ’ ” (Ibid.)
4 People v. Watson (1956) 46 Cal.2d 818.
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Myers has failed to make a prima facie case under this
standard. In our prior opinion in this case, we held 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. This is the same finding
required for a conviction of felony murder under the newly
amended section 189. (See § 189, subd. (e)(3).) He is therefore
ineligible for resentencing as a matter of law because he cannot
show that he “could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective”
in Senate Bill No. 1437, as is required to be eligible for
resentencing. (§ 1170.95, subd. (a)(3).)
In Lewis, the Supreme Court cautioned that the “trial
court should not engage in ‘factfinding involving the weighing
of evidence or the exercise of discretion’ ([People v.] Drayton
[(2020)] 47 Cal.App.5th [965,] 980 . . . )” (Lewis, supra, 11 Cal.5th
at p. 972) in recognition of the fact that “the ‘prima facie bar was
intentionally and correctly set very low.’ ” (Ibid.) But in this
case, we need not conduct any factfinding, nor must we go beyond
the holding in our previous opinion to conclude as a matter of law
that Myers is ineligible.
Myers disagrees with this conclusion. He argues that
the jury’s special circumstance finding does not preclude him
from relief under section 1170.95 because, in the years following
the affirmance of his conviction on appeal, 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
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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 a trial court does not err by summarily
denying a defendant’s petition on that basis.5
5 The opinions reaching the same conclusion include People
v. Nunez (2020) 57 Cal.App.5th 78, review granted January 13,
2021, S265918, People v. Gomez (2020) 52 Cal.App.5th 1, review
granted October 14, 2020, S264033, People v. Jones (2020) 56
Cal.App.5th 474, review granted January 27, 2021, S265854,
and People v. Simmons (2021) 65 Cal.App.5th 739. Other courts
have disagreed. (See 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;
People v. York (2020) 54 Cal.App.5th 250, review granted
November 18, 2020, S264954; People v. Harris (2021) 60
Cal.App.5th 939, review granted, April 28, 2021, S267802; People
v. Secrease (2021) 63 Cal.App.5th 231, review granted June 30,
2021, S268862; People v. Pineda (2021) 66 Cal.App.5th 792;
People v. Gonzalez (2021) 65 Cal.App.5th 420; and People v. Arias
(2021) 66 Cal.App.5th 987.)
8
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
hold that Myers is unable to make a prima facie case for relief
under section 1170.95. Because Myers has not shown that
“ ‘ “it is reasonably probable that if [he . . . ] had been afforded
assistance of counsel his . . . petition would not have been
summarily denied without an evidentiary hearing” ’ ” (Lewis,
supra, 11 Cal.5th at p. 974), the error in denying his petition
was harmless.
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 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.
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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.
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