Filed 10/26/22 P. v. McDermott CA2/3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B302013
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA052445)
v.
ROHAN MCDERMOTT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark E. Windham, Judge. Reversed with
direction.
Robert D. Bacon, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
A jury convicted Rohan McDermott of first degree murder
with a true finding on a special circumstance. Years after he was
convicted, McDermott petitioned the trial court in 2019 for
vacation of his conviction and for resentencing under then
recently-enacted Penal Code1 section 1172.6.2 The trial court
summarily denied relief, and we affirmed that order on appeal.
(People v. McDermott (Jan. 29, 2021, B302013 [nonpub. opn.].)
Our California Supreme Court granted review and has now
transferred the matter back to us with the direction to vacate our
decision and to reconsider the cause in light of People v. Strong
(2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11
Cal.5th 952 (Lewis). Doing so, we conclude that the trial court’s
order must be reversed and the matter remanded for further
proceedings.
BACKGROUND
I. The murder and McDermott’s conviction
In 2004, McDermott and Alcliff Daley planned to steal
marijuana from Troy Lewis and Dwane Godoy. After luring the
men into Daley’s apartment, Daley pointed a gun at Godoy and
Lewis, and McDermott taped their hands behind their backs.
Daley threatened to kill them and leave their bodies to rot in a
closet. When Daley noticed that Godoy had managed to free his
hands, he put the gun to Godoy’s head and again threatened to
kill him. McDermott retaped Godoy’s hands and also taped his
1
All further undesignated statutory references are to the
Penal Code.
2
Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
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feet. When McDermott and Daley exited the apartment, Godoy
managed to free himself. But, when he tried to flee, McDermott
was at the apartment’s front door. McDermott told Godoy,
“ ‘You’re not going nowhere.’ ” The two men struggled, and Godoy
got away. McDermott chased him, but he hid underneath a car
in a neighboring yard. Lewis did not escape. His body was
discovered in the apartment; he had been shot in the forehead,
and his hands were bound behind his back with tape.
A jury found McDermott guilty of first degree murder with
true findings on special circumstance allegations that the murder
was committed during an attempted kidnapping for ransom and
an attempted robbery. (§ 190.2, subd. (a)(17)(A) & (B).) It also
found true an allegation that a principal was armed during the
offense. (§ 12022, subd. (a)(1).) The trial court sentenced
McDermott to life in prison without the possibility of parole, plus
one year. This division affirmed the judgment of conviction.
(People v. McDermott (June 27, 2007, B193585) [nonpub. opn.].)
II. Section 1172.6 petition
In 2019, after passage of Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437), McDermott filed a petition for
vacation of his murder conviction and resentencing which
included a request for appointment of counsel. On the preprinted
form, McDermott checked all appropriate boxes showing
eligibility for relief. However, the trial court summarily denied
the petition, finding that McDermott was ineligible for relief as a
matter of law because the jury’s true findings on the special
circumstance allegations established that he intended to kill, or
was a major participant in the murder and acted with reckless
indifference to human life. McDermott was not present at any
hearing on the petition and was not represented by counsel.
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McDermott appealed the order denying his petition. We
affirmed the order, rejecting McDermott’s argument that the trial
court erred by summarily dismissing his petition based on the
jury’s special circumstance finding, without appointing counsel
for him. (People v. McDermott, supra, B302013.)
Thereafter, our California Supreme Court issued Strong,
supra, 13 Cal.5th 698 and Lewis, supra, 11 Cal.5th 952, both of
which clarified the scope of section 1172.6. And, as we now
explain and as the People concede, those cases require reversal of
the order denying McDermott’s petition.
DISCUSSION
Senate Bill 1437, which took effect on January 1, 2019,
limited accomplice liability under the felony-murder rule and
eliminated the natural and probable consequences doctrine as it
relates to murder, to ensure that a person’s sentence is
commensurate with his or her individual criminal culpability.
(People v. Gentile (2020) 10 Cal.5th 830, 842–843.) As relevant
here, Senate Bill 1437 amended the felony-murder rule by adding
section 189, subdivision (e), which provides that a participant in
the perpetration of qualifying felonies is liable for felony murder
only if the person: (1) was the actual killer; (2) was not the actual
killer but, with the intent to kill, acted as a direct aider and
abettor; or (3) the person was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in section 190.2, subdivision (d). (Gentile, at
p. 842.)
Senate Bill 1437 also added section 1172.6, which created a
procedure whereby persons convicted of murder under a now-
invalid felony-murder theory may petition for vacation of their
convictions and resentencing. A defendant is eligible for relief
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under section 1172.6 if the defendant meets three conditions:
(1) the defendant must have been charged with murder under a
theory of felony murder, (2) must have been convicted of first or
second degree murder, and (3) could no longer be convicted of
first or second degree murder due to changes to sections 188 and
189 effectuated by Senate Bill 1437. (§ 1172.6, subd. (a).) If a
petitioner makes a prima facie showing of entitlement to relief,
the trial court shall issue an order to show cause (§ 1172.6,
subd. (c)) and hold an evidentiary hearing at which the
prosecution bears the burden of proving “beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted
murder” under the law as amended by Senate Bill 1437 (§ 1172.6,
subd. (d)(3)).
In his prior appeal from the order denying his petition,
McDermott argued that he was entitled to reversal of the order
because, first, the trial court summarily denied the petition
without appointing counsel for him; second, the trial court erred
by examining the record of conviction; and, third, the jury’s
special circumstance findings predated People v. Banks (2015) 61
Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
(Clark), both of which “substantially clarified the law” regarding
what it means to be a major participant who acts with reckless
indifference to human life for the purpose of the special
circumstance statute. (Strong, supra, 13 Cal.5th at pp. 706, 721.)
As to McDermott’s first and second contentions, Lewis,
supra, 11 Cal.5th at page 957, held 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
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petitioner makes a prima facie showing that he or she is entitled
to relief.’ ” It is undisputed here that McDermott filed a facially
sufficient petition. Therefore, he was entitled to appointment of
counsel.
As to McDermott’s third contention, Strong, supra, 13
Cal.5th at pages 719 to 720, held that a pre-Banks and Clark
finding that the defendant was a major participant who acted
with reckless indifference does not preclude the defendant from
making a prima facie case for relief under section 1172.6, even if
the trial evidence was sufficient to support the findings under
Banks and Clark. Applying that holding here, McDermott was
tried on a felony-murder theory. The jury found true two special
circumstance allegations: that the murder was committed during
an attempted kidnapping for ransom and an attempted robbery.
(§ 190.2, subd. (a)(17)(A) & (B).) Regarding the special
circumstances, the jury was instructed that if it concluded a
defendant was guilty of first degree murder but was not the
actual killer, the People had to prove either that the defendant
intended to kill, or that he was a major participant in the crime
and acted with reckless indifference to human life. Because that
special circumstance finding predated Banks and Clark, the
finding does not preclude McDermott’s eligibility for possible
resentencing. Therefore, McDermott is entitled not only to
appointment of counsel but also to an evidentiary hearing under
section 1172.6, subdivision (d)(3).
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DISPOSITION
The order denying McDermott’s petition is reversed and the
matter is remanded with the direction to the trial court to
appoint counsel for McDermott, to issue an order to show cause,
and to conduct an evidentiary hearing in accordance with Penal
Code section 1172.6, subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
EGERTON, J.
RICHARDSON, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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