Filed 8/31/23 P. v. McPeters 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

TIMOTHY ORYAN 

McPETERS,

Defendant and Appellant.

 B321140

 (Los Angeles County

 Super. Ct. No. SA063427)

APPEAL from an order of the Superior Court of Los 

Angeles County, William L. Sadler, Judge. Affirmed.

Benjamin Owens, 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, Senior 

Assistant Attorney General, Noah P. Hill and Heidi Salerno, 

Deputy Attorneys General, for Plaintiff and Respondent.

__________________________________
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In 2015, appellant Timothy Oryan McPeters pled no contest 

to one count of second degree murder. In 2022, he filed a petition 

for resentencing under Penal Code section 1172.6, in which he

requested the appointment of counsel.

1 He appeals the superior 

court’s summary denial of that petition without the appointment 

of counsel. The parties agree the court erred in not appointing 

counsel but disagree on whether the error was harmless. We 

conclude it was and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. McPeters Pleads No Contest to Murder

In November 2007, the superior court held a preliminary 

hearing to determine whether there was probable cause to find 

that McPeters had murdered Aneesah Akbar and had sexual 

contact with her corpse.

2 At that hearing, a sergeant from the 

Los Angeles County Sheriff’s Department testified that he had 

previously interrogated McPeters regarding the victim’s death. 

In this interrogation, McPeters admitted that, after Akbar had 

insulted, slapped, and shoved him, he “ended up choking [her]”

until “her body went limp” and she died. McPeters then 

1 Undesignated statutory references are to the Penal Code. 

Effective June 30, 2022, section 1170.95 was renumbered as 

1172.6 without substantive change. (People v. Strong (2022) 13 

Cal.5th 698, 708, fn. 2.) For clarity, we use the current statutory 

numbering.

2 We grant the People’s unopposed request to take judicial 

notice of volume one of the clerk’s transcript from People v. 

McPeters (Feb. 28, 2013, B238758) [nonpub. opn.], which contains 

the preliminary hearing transcript.
3

proceeded to have intercourse with the corpse. At no time during 

the interrogation did McPeters claim anyone else had been 

present when the crimes were committed. The court found 

sufficient evidence that McPeters “was the one who committed 

these offenses,” and held him to answer. He was subsequently 

charged by information with one count of murder and one count 

of sexual contact with human remains. 

McPeters was found guilty of both counts and sentenced to 

17 years to life. (People v. McPeters, supra, B238758, at p. 7.) In 

2013, we affirmed the conviction for sexual contact with human 

remains but reversed the conviction for murder. (Id. at p. 21.)

In 2015, McPeters, representing himself, pled no contest to 

second degree murder. In accepting McPeters’s plea, the court 

asked the parties to agree that “there was and is a preliminary 

hearing that was conducted in this matter and that the facts and 

circumstances of that preliminary hearing do outline some of the 

facts and circumstances of this case to provide a factual basis” for 

McPeters’s plea. Both McPeters and the prosecutor agreed. The 

court sentenced McPeters to 15 years to life.

B. The Court Summarily Denies McPeters’s Section 

1172.6 Petition

In February 2022, McPeters filed a petition to vacate his 

conviction under section 1172.6. McPeters alleged that: (1) he 

was eligible for relief under section 1172.6; (2) in 2015 he pled 

guilty to second degree murder; (3) that he could not now be 

convicted of second degree murder under the amended versions of 

sections 188 and 189; and (4) with the “abrogation of the ‘natural 

and probable consequences doctrine[’] and other theories of 

murder under which malice is imputed to a defendant based 

solely on that person’s participation in a crime, it was not now 
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possible to convict him of second degree murder based on the 

known facts of this case.” In an unsigned declaration

accompanying his petition, McPeters averred that “[t]he 

prosecution on my case asserted the theory of natural and 

probable consequences of an assault to charge me with second 

degree murder.” McPeters requested the appointment of counsel. 

In April 2022, the superior court summarily denied 

McPeters’s petition without appointing counsel, finding that, 

“based on the record of conviction,” McPeters “was not prosecuted 

nor was he convicted under a theory of criminal liability for 

which [section 1172.6] would grant relief.” The court found that 

the “record of conviction does not support a prosecution under a 

felony murder or a ‘natural and probable consequences’ theory” 

and noted that when McPeters entered his plea, he “stipulated to 

a factual basis based on the previous trial transcript.” The court 

then set forth the “facts of this case,” quoting from our opinion in

People v. McPeters, supra, B238758. The court concluded that it 

was “clear from the record of conviction that the defendant ple[]d 

guilty based on an express malice theory of the case. There was 

no other theory of the case except that the defendant was t[he] 

sole killer. There is no factual basis for relief under [section 

1172.6]. Further, the defendant ple[]d no contest having been 

through trial once and knowing the factual basis of the case and 

his subsequent plea after reversal.” 

McPeters timely appealed. 

DISCUSSION

A. Governing Law

Under section 1172.6, subdivision (a), “A person convicted 

of felony murder or murder under the natural and probable 
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consequences doctrine or other theory under which malice is 

imputed to a person based solely on that person’s participation in 

a crime, attempted murder under the natural and probable 

consequences doctrine, or manslaughter may file a petition with 

the court that sentenced the petitioner to have the petitioner’s 

murder, attempted murder, or manslaughter conviction vacated 

and to be resentenced on any remaining counts when all of the 

following conditions apply: [¶] (1) A complaint, information, or 

indictment was filed against the petitioner that allowed the 

prosecution to proceed under a theory of felony murder, murder 

under the natural and probable consequences doctrine or other 

theory under which malice is imputed to a person based solely on 

that person’s participation in a crime, or attempted murder under 

the natural and probable consequences doctrine. [¶] (2) The 

petitioner was convicted of murder, attempted murder, or 

manslaughter following a trial or accepted a plea offer in lieu of a 

trial at which the petitioner could have been convicted of murder 

or attempted murder. [¶] (3) The petitioner could not presently be 

convicted of murder or attempted murder because of changes to 

Section 188 or 189 made effective January 1, 2019.”

Senate Bill No. 1437 added the following provision to 

section 188: “Except 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 bill “eliminates natural and probable 

consequences liability for first and second degree murder.”

(People v. Gentile (2020) 10 Cal.5th 830, 849.) It also limits the 

application of felony murder to situations where “(1) The person 

was the actual killer. [¶] (2) The person was not the actual killer, 
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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. [¶ or] 

(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.” (§ 189, subd. (e).)

When a defendant files a facially sufficient petition under 

section 1172.6, the trial court must appoint counsel to represent 

the petitioner, allow briefing from both sides, and hold a hearing 

to determine whether the petitioner has made a prima facie 

showing for relief. (§ 1172.6, subds. (b)–(c).) When a superior

court errs in declining to appoint counsel for a defendant in 

connection with a section 1172.6 petition, we review for harmless 

error under People v. Watson (1956) 46 Cal.2d 818. (People v. 

Lewis (2021) 11 Cal.5th 952, 974.)

B. The Superior Court’s Error Was Harmless

The parties agree the superior court erred in failing to 

appoint counsel after McPeters filed his petition. They disagree 

whether the error was harmless. We conclude that it was.

A defendant “ ‘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.” ’ ” (People v. Lewis, 

supra, 11 Cal.5th at p. 974.) When the record of conviction 

establishes the defendant’s ineligibility for relief as a matter of 

law, “there is no reasonable probability [the defendant] would 

have obtained a more favorable result if counsel had been 

appointed,” and the error is harmless. (People v. Mancilla (2021) 
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67 Cal.App.5th 854, 864.) Here, the record of conviction 

demonstrates McPeters’s ineligibility for relief as a matter of law.

McPeters pled no contest to second degree murder. “ ‘A 

guilty plea [or plea of nolo contendere] admits every element of 

the charged offense.’ ” (People v. Rivera (2021) 62 Cal.App.5th 

217, 234 (Rivera), quoting In re Chavez (2003) 30 Cal.4th 643, 

649.) “Second degree murder is the unlawful killing of a human 

being with malice aforethought but without the additional 

elements, such as willfulness, premeditation, and deliberation, 

that would support a conviction of first degree murder.” (People 

v. Knoller (2007) 41 Cal.4th 139, 151.) Therefore, by pleading no 

contest to second degree murder, McPeters admitted to the

unlawful killing of a human being with malice aforethought.

Citing Rivera, McPeters argues that even though he pled 

no contest to an unlawful killing with malice aforethought, this 

does not establish his ineligibility as a matter of law “[b]ecause 

this language did not in any way limit the prosecution’s theories.” 

Rivera is inapposite. There, the evidence suggested that the 

appellant “was present when . . . a fellow gang member . . . shot 

[the victim]” and that the appellant “drove [the fellow gang 

member] to and from the scene.” (Rivera, supra, 62 Cal.App.5th

at p. 224.) The appellate court held that the appellant’s no 

contest plea to second degree murder did not render him 

ineligible for relief as a matter of law because “[t]he generic 

manner in which murder was charged here did not limit the 

People to prosecuting [the appellant] on any particular theories.” 

(Id. at p. 233.) In other words, although the appellant had pled 

no contest to murder with malice aforethought, at the time the 

appellant entered his plea, “malice could be imputed to a 

defendant under the felony-murder rule or the natural and 
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probable consequences doctrine, meaning that the person did not 

need to harbor express or implied malice to be convicted of second 

degree murder.” (Id. at p. 234.) Thus, it was possible that, in 

pleading no contest to second degree murder, the appellant was 

admitting only that the prosecution could prove his accomplice’s 

malice should be imputed to the appellant. Such an admission 

would not preclude the appellant from relief under section 

1172.6. McPeters argues that we should treat his no contest plea 

in the same manner. We disagree.

While it is true that McPeters’s no contest plea to second 

degree murder would not categorically bar him from relief under 

section 1172.6, he is situated differently from the appellant in 

Rivera because, unlike that appellant, there was no accomplice 

whose malice could have been imputed to McPeters. When 

McPeters pled no contest to second degree murder, he agreed 

“that the facts and circumstances of th[e] preliminary hearing do 

outline some of the facts and circumstances of this case to provide 

a factual basis” for his plea. At the preliminary hearing, law 

enforcement testified that McPeters had confessed to personally 

choking the victim to death after she insulted him. There was no 

evidence or theory that anyone else was responsible for her 

death. Therefore, pursuant to the facts of the case as presented 

at the preliminary hearing, McPeters could not have been tried 

under the felony murder doctrine because he did not kill the 

victim while engaging in an inherently dangerous felony.3 Nor 

3 “ ‘ “Under the felony-murder doctrine, when the defendant 

or an accomplice kills someone during the commission, or 

attempted commission, of an inherently dangerous felony, the 

defendant is liable for either first or second degree murder, 

depending on the felony committed.” ’ ” (People v. Powell (2018) 5 

(Fn. is continued on the next page.)
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could he have been tried under the natural and probable 

consequences doctrine because he was not an aider and abettor. 

(See People v. McCoy (2001) 25 Cal.4th 1111, 1117 [“[U]nder the 

natural and probable consequences doctrine, an aider and abettor 

is guilty not only of the intended crime, but also ‘for any other 

offense that was a “natural and probable consequence” of the 

crime aided and abetted’ ”].)4

Cal.5th 921, 942.) But McPeters’s assault of the victim could not 

serve as the predicate felony. (See People v. Chun (2009) 45 

Cal.4th 1172, 1178 [“all assaultive-type crimes . . . merge with 

the charged homicide and cannot be the basis for a second degree 

felony-murder instruction”].)

4 In an unsigned declaration accompanying his petition, 

McPeters alleged “[t]he prosecution on my case asserted the 

theory of natural and probable consequences of an assault to 

charge me with second degree murder.” To the extent McPeters 

is contending the prosecution improperly asserted he 

demonstrated malice because the natural and probable 

consequences of his assault on the victim was death, McPeters 

conflates two different theories.

“Before Senate Bill No. 1437, ‘the natural and probable 

consequences doctrine was an exception to the actual malice 

requirement’—i.e., the requirement of either express or implied 

malice.” (Rivera, supra, 62 Cal.App.5th at p. 231.) “The name of 

the doctrine is confusing, since implied malice also incorporates 

the idea of ‘natural and probable consequences,’ but the two 

concepts are distinct. Whereas implied malice is based on ‘the 

“natural and probable consequences” of a defendant’s own act’ the 

natural and probable consequences doctrine was ‘a theory of 

vicarious liability under which “[a]n aider and abettor [was] 

guilty not only of the intended, or target, crime but also of any 

other crime a principal in the target crime actually commit[ted] 

(the nontarget crime)” ’—including murder—‘ “that [was] a 

(Fn. is continued on the next page.)
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Because McPeters cannot demonstrate a reasonable 

probability that his petition would not have been summarily 

denied without an evidentiary hearing if he had been afforded the 

assistance of counsel, he has failed to demonstrate prejudicial 

error.

DISPOSITION

The court’s order is affirmed.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.

natural and probable consequence of the target crime.” ’ ” (Ibid.) 

Thus, while defendants can no longer be convicted vicariously of 

murder based solely on their participation in a crime, they can 

still be convicted of murder under a theory of implied malice, 

which definition—including the idea of the natural and probable 

consequences of the defendant’s own actions—remains 

unchanged. (Id. at p. 232.)