People v. McDowell CA2/4

Filed 10/30/23 P. v. McDowell CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, B320119

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA330955)
v.

DAVIONE MCDOWELL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Mildred Escobedo, Judge. Affirmed with
instructions.
Eric R. Larson, 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, Idan Ivri and Nikhil Cooper, Deputy Attorneys
General, for Plaintiff and Respondent.
 In 2005, 17-year-old appellant Davione McDowell
approached a group of men playing dice, demanded their money,
then shot at them as they ran away. A jury convicted appellant
of one count of first degree murder, three counts of premeditated
attempted murder, and four counts of attempted second degree
robbery. The jury also found true criminal street gang and gun
use enhancement allegations in each count. (Pen. Code,
§§ 186.22, subd. (b)(1), 12022.53, subds. (b)–(d).)1
In 2022, appellant filed a petition for resentencing under
section 1172.6 (former section 1170.95).2 The trial court
summarily denied the petition without appointment of counsel or
further briefing. The court found that appellant was not eligible
for relief as a matter of law because he was the actual killer.
On appeal, appellant contends the trial court erred in
denying his petition without counsel or briefing. Respondent
Attorney General concedes this error, but argues that it was
harmless. We agree that the trial court erred in the summary
denial of appellant’s petition. However, the error was harmless,
as the record of conviction conclusively establishes that appellant
was the actual killer. We therefore affirm the denial of
appellant’s petition for resentencing.
FACTUAL BACKGROUND
The underlying facts presented at trial are discussed in
detail in this court’s prior nonpublished opinion, People v.

1 All further statutory references are to the Penal Code
unless otherwise indicated.

2 Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute. We hereafter
refer to the statute as section 1172.6.

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McDowell (Nov. 13, 2012, B235921). We summarize them here to
provide context for the trial court’s ruling. We otherwise do not
rely on this factual background in resolving the issues presented
in this appeal. (See § 1172.6, subd. (d)(3).).
On the afternoon of September 1, 2005, seven men were
playing a game of dice in the driveway of Johnny Stringer's home
in Los Angeles. Approximately $1,000 in cash was visible on the
driveway.
The assailant, who had a bag in his left hand and a gun in
his right pants pocket, walked past the driveway, turned around,
and “cut across the grass” to approach the men without being
seen. The assailant stopped within five or ten feet of the men
and “fumbled” in his pocket for about 10 seconds before pulling
out a gun and demanding, “Break yourself,” which meant, “Give
me the money.” As the men turned and ran, the assailant began
shooting. Stringer was shot and killed; three other men were
wounded by the bullets. The assailant ran away without the
money.
Police investigators obtained an image from a nearby
surveillance video camera and a description of the assailant from
one of the victims. The investigators initially identified another
individual as a person of interest, and several witnesses picked a
photograph of that individual as most resembling the assailant.
Subsequently, one of the victims and two witnesses identified
appellant as the assailant from photographic and live lineups. At
trial, two witnesses and two victims positively identified
appellant in court as the assailant. The prosecution also showed
the jury the still photo from the nearby surveillance videotape,
which depicted appellant crossing the parking lot around the

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time of the shooting, holding the same bag and wearing the same
clothing as the assailant.
PROCEDURAL HISTORY
I. Conviction and Sentence
Following a trial in 2011, a jury convicted appellant of one
count of first degree murder (§ 187, subd. (a); count one), three
counts of premeditated attempted murder (§§ 664, 187, subd. (a);
counts two, three, and seven), and four counts of attempted
second degree robbery (§§ 664, 211; counts four, five, six, and
eight). As to all counts, the jury found true the allegation that
the crime was committed for the benefit of a criminal street gang.
(§ 186.22, subd. (b)(1)(C).) The jury also found true firearm use
enhancements as to all counts; specifically, that appellant
personally and intentionally discharged a firearm as to counts
two, five, seven, and eight (§ 12022.53, subds. (b)-(c)), and
appellant personally and intentionally discharged a firearm
causing great bodily injury or death as to the remaining counts
(§ 12022.53, subds. (b)-(d)).
The trial court sentenced appellant to state prison for a
total term of 95 years to life on counts one, two, and three, plus
two consecutive life terms. The court also imposed concurrent
terms for each of the remaining counts, which are not relevant to
this appeal.
A different panel of this court affirmed appellant’s
convictions on direct appeal. (People v. McDowell, supra.) The
court found that substantial evidence supported appellant’s
convictions. (Ibid.) As to the attempted robberies (counts four,
five, six, and eight), the court corrected the concurrent sentences
imposed to reflect the proper midterm for each offense. (Ibid.; see
also § 213, subd. (b).)

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II. Section 1172.6 Proceedings
On February 22, 2022, appellant filed a form petition for
resentencing under section 1172.6. He checked the boxes
indicating that he was prosecuted for murder and attempted
murder under felony murder, natural and probable consequences,
or imputed malice theories; he was convicted of murder and
attempted murder; and he could not now be convicted of those
crimes under the relevant amendments to the law. He also
checked the box requesting that the court appoint counsel to
represent him.
On March 22, 2022, the court summarily denied the
petition without appointing counsel for appellant or allowing
further briefing. In its written order, the court stated that the
petition was denied “for lack of eligibility under the statute.
Further denied pursuant to People v. Harden[3]. . . . The
appellate record filed 11-13-12, clearly finds as a matter of law
that the defendant/petitioner was the actual killer and that

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The trial court was referring to then-published case People
v. Harden (2022) 76 Cal.App.5th 262, 331, which affirmed the
trial court’s denial of a section 1172.6 petition at the prima facie
stage because the prior appellate opinion established Harden’s
ineligibility for relief as matter of law. The appellate court
subsequently granted Harden’s petition for rehearing and
vacated that opinion. (People v. Harden (2022) 81 Cal.App.5th
45, 50.) The court again affirmed, finding that Harden was
ineligible for relief under section 1172.6 because the record of
conviction established she was the actual killer as a matter of
law. (Id. at p. 59-60.)

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substantial evidence supported a finding of guilt beyond a
reasonable doubt.”4
Appellant timely appealed.
DISCUSSION
I. Petition for Resentencing
A. Governing Law
“Effective January 1, 2019, the Legislature passed Senate
Bill 1437 (SB 1437) ‘to amend 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 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. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).) To this end, the law specifically provided that a
“person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea,” and a conviction
for murder “requires that a person act with malice aforethought.”
(Stats. 2018, ch. 1015, § 1, subd. (g).)
SB 1437 added what is now section 1172.6, which provides
a procedure for individuals convicted of murder or attempted
murder who could not be convicted under the law as amended to
file a petition seeking resentencing. (Lewis, supra, 11 Cal.5th at

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The prior appellate opinion in this case was filed on
November 13, 2012. It is unclear whether the trial court also
considered the trial transcripts as part of the record of conviction,
as they had not yet been submitted by either party as part of the
petition for resentencing. We granted respondent’s unopposed
request for judicial notice of the trial transcripts. We also
granted appellant’s unopposed request for judicial notice of this
court’s prior opinion.

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p. 959, citing People v. Gentile (2020) 10 Cal.5th 830, 838-839.) A
facially adequate petition entitles a petitioner to the appointment
of counsel and a response from the prosecution. (§ 1172.6, subds.
(b)(3), (c); Lewis, supra, 11 Cal.5th at p. 970.)
At the prima facie stage of review, the trial court must
determine whether the petitioner would be entitled to relief if his
or her allegations were proven. If so, the court must issue an
order to show cause. (Lewis, supra, 11 Cal.5th at p. 971.) At the
prima facie stage, “the court should not make credibility
determinations or engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’” (Id. at p. 974.) “‘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.’”” (Id. at p. 971.)
Once a prima facie showing has been made, the court must
hold a hearing to determine whether to vacate the petitioner's
conviction, recall his or her sentence, and resentence him or her
“on any remaining counts in the same manner as if the petitioner
had not previously been sentenced.” (§ 1172.6, subd. (d)(1).) At
the hearing, the prosecution bears the burden of proving beyond
a reasonable doubt that the petitioner is guilty of murder under
current law. (§ 1172.6, subd. (d)(3).)
We review de novo the trial court's determination that a
petitioner failed to make a prima facie showing under section
1172.6. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251;
People v. Eynon (2021) 68 Cal.App.5th 967, 975.)

B. Analysis
Appellant contends that the trial court erred in summarily
denying his resentencing petition without appointing counsel or

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permitting briefing. Respondent agrees that this was error.
Further, to the extent the trial court relied on the facts set forth
in this court’s prior opinion, respondent concedes that was also
error.
We agree with the parties that once appellant filed a
facially valid petition pursuant to section 1172.6, the trial court
was required to appoint counsel for appellant and permit briefing
before considering whether appellant had made a prima facie
case for relief. (Lewis, supra, 11 Cal.5th at pp. 963-965.) The
trial court also erred to the extent it relied on the factual
summary in the prior appellate opinion to deny the petition. (See
§ 1172.6, subd. (d)(3).)
We therefore consider whether these errors were
prejudicial. We review a court’s error in summarily denying a
petition for resentencing under the harmless error test set forth
in People v. Watson (1956) 46 Cal.2d 818. (Lewis, supra, 11
Cal.5th at p. 973.) Thus, appellant 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. 924.)
Here, we find the court’s errors harmless, as the record of
conviction “conclusively establishes, with no factfinding, weighing
of evidence, or credibility determinations,” that appellant was the
actual killer of one victim and shooter of the others. (People v.
Lopez (2022) 78 Cal.App.5th 1, 14; see also §§ 188, subd. (a)(3),
189(e); Lewis, supra, 11 Cal.5th at p. 971.) The court may
consider the jury instructions, verdict forms, and any special
findings or enhancement allegations the jury found true to
determine if the petition makes a prima facie showing of
entitlement to relief. (Lewis, supra, 11 Cal.5th at p. 957; People
v. Duchine (2021) 60 Cal.App.5th 798, 815; see also People v.

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Jenkins (2021) 70 Cal.App.5th 924, 935; People v. Soto (2020) 51
Cal.App.5th 1043, 1055 [the trial court may “rely on the jury
instructions, which are part of the record of conviction, in
assessing the prima facie showings under [former] section
1170.95(c)”], overruled on another ground by Lewis, supra, 11
Cal.5th at p. 957; People v. Daniel (2020) 57 Cal.App.5th 666, 677
[court may consult the jury instructions].)
The record here conclusively demonstrates that appellant is
ineligible for relief. The jury was not instructed as to the natural
and probable consequences doctrine on any charge. Thus, as to
the attempted murder charges, appellant could not make a prima
facie showing of a right to relief where the jury instructions
conclusively demonstrated that he was not convicted of
attempted murder under a natural and probable consequences
theory. (See § 1172.6, subd. (a).)
As to the murder charge, the jury was instructed on two
theories. First, the jury was instructed on first degree malice
murder, requiring a finding that appellant intended to kill the
victim. If the jury found appellant guilty under this first theory,
he would be ineligible for relief under section 1172.6 as a matter
of law because the jury necessarily would have found that he
harbored the requisite intent to kill. Second, the jury was
instructed on a felony murder theory, requiring a finding that
appellant “caused the death of another person” during the
commission of an attempted robbery. If appellant was convicted
under a felony murder theory with attempted robbery as the
underlying felony, he would still be ineligible for relief if the jury
found he was the actual killer. (§ 189 subds. (a), (e)(1).)
The record conclusively demonstrates that the jury made
such a finding. The prosecution proceeded on a theory that

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appellant was the only shooter, and the jury was not instructed
as to any theories that would suggest that appellant was present
and a participant but did not shoot the victims himself.
Conversely, appellant argued a theory of mistaken identity at
trial and highlighted the inconsistencies in the witnesses’
identifications. Moreover, the jury found true the section
12022.53 enhancement on the murder charge, finding that
appellant personally and intentionally discharged a firearm
which caused great bodily injury or death to the murder victim.
On this record, the jury could not have found that appellant was
guilty of felony murder but was not the actual killer. (See Soto,
supra, 51 Cal.App.5th at p. 1059 [“Soto did not make a prima
facie showing that he is entitled to relief under [former] section
1170.95 because the jury instructions given at his trial
conclusively demonstrate as a matter of law that he was not
convicted of murder under a natural and probable consequences
theory or of felony murder”]; People v. Tarkington (2020) 49
Cal.App.5th 892, 899, overruled in part on another ground by
Lewis, supra, 11 Cal.5th at pp. 962-963 [record showed defendant
was the actual killer where jury instructions did not include any
instruction on natural and probable consequences or felony
murder and the jury found the defendant personally used
weapon].)
Appellant argues that the jury’s true finding that he
personally used and discharged a firearm on the murder and
attempted murder counts should not preclude eligibility for
resentencing at the prima facie stage. He relies on People v.
Offley (2020) 48 Cal.App.5th 588, 599 (Offley), which we find
distinguishable. In Offley, the petitioner and several fellow gang
members fired shots into a vehicle, killing one occupant and

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seriously wounding another. (Id. at pp. 592–593.) The
prosecution presented evidence of a conspiracy, and the jury was
instructed that a member of a conspiracy is guilty not only of the
particular crime he knows his confederates agreed to and
committed, but also for the natural and probable consequences of
any crime of a coconspirator to further the object of the
conspiracy. (Id. at p. 593.) Offley was convicted of murder,
attempted murder, and shooting into an occupied vehicle; the
jury found true that he had personally used and intentionally
discharged a firearm proximately causing death to the victim.
(Ibid.)
The trial court summarily denied Offley’s section 1172.6
petition based on the jury’s true finding of a firearm
enhancement allegation. (Offley, supra, 48 Cal.App.5th at p.
597.) The court of appeal reversed, reasoning that the jury could
have found that he intentionally fired his weapon but did not act
with the malice required for murder, instead finding him guilty of
murder under a natural and probable consequences theory. (Id.
at p. 599.)
Here, by contrast, the jury was not instructed on a natural
and probable consequences theory, nor was there any possibility
that the jury could have concluded that appellant fired his gun
but was not the actual shooter. There was no evidence that
appellant participated in the charged crimes but someone else
was the actual killer. Under these circumstances, we also reject
appellant’s argument that reaching this conclusion requires
factfinding that cannot be done at the prima facie stage. No
factfinding or weighing of evidence is necessary; instead, the jury
instructions and the jury’s verdicts conclusively show as a matter
of law that appellant was convicted as the actual shooter. Thus,

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even absent the trial court’s errors, appellant could not have
established a prima facie case that he was entitled to relief under
section 1172.6.5
II. Correction of Abstract of Judgment
Appellant also requests correction of several errors in the
abstract of judgment. Specifically, appellant seeks modification
of the abstract of judgment to reflect that the firearm
enhancement on count two was imposed pursuant to section
12022.53, subdivision (c), rather than section 12022.53,
subdivision (d). He also points out that for each of the firearm
enhancements on counts two and seven, the court imposed a
determinate term of 20 years, rather than an indeterminate term
of 20 years to life. Respondent does not oppose this request.
We may correct clerical errors in the abstract of judgment
at any time. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-
187.) However, as respondent notes, the record does not contain
the amended abstract of judgment issued following the appellate
court’s corrections in the prior appeal. Accordingly, to the extent
these errors remain, we direct the amendment of the abstract of
judgment to correct them.

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We do not reach appellant’s argument regarding the kill
zone jury instruction and his attempted murder conviction, as it
was raised for the first time in his reply brief on appeal. (People
v. Newton (2007) 155 Cal.App.4th 1000, 1005; Authority for
California Cities Excess Liability v. City of Los Altos (2006) 136
Cal.App.4th 1207, 1216, fn. 2 [“we disregard claims raised for the
first time in an appellate reply brief where the appellant makes
no attempt to show good cause for failing to raise the issue in the
opening brief”].)

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 DISPOSITION
Affirmed. The clerk of the superior court is directed to
prepare a corrected abstract of judgment and forward a copy to
the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

CURREY, P.J.

MORI, J.

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