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Filed 1/24/ 23 P. v. McPherson CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

---- THE PEOPLE,

Plaintiff and Respondent,

v.
PATRICK JEROME M c PHERSON,

Defendant and Appellant. C093340 (Super. Ct. No. 11F05321)

Defendant Patrick Jerome McPherson , along with accomplices Patrick Joseph
Godines and Travis Monrow Mabson , were all convicted of felony murder, attempted robbery, and burglary a fter their attempt to rob Michael Sanderson in his apartment ended in Sanderson’s death . In 2019 , defendant filed a petition for resentencing pursuant to
Penal Code 1 section 117 2.6

. 2 The trial court denied the petition on the basis that

1 Undesignated statutory references are to the Penal Code.

2 Effective June 30, 2022, former section 1170.95 was renumbered as section 1172.6 with out substantive change in text. (Stats. 2022, ch. 58, § 10.) Although2

defendant wa s ineligible for relief as a matter of law. Defendant appeal ed , arguing he demonstrated prima facie entitlement to relief , and that the trial court should have issued an order to show cause and conducted an evidentiary hearing

. We found no error and
affirm ed

. Our Supreme Court granted review but deferred further action pending disposition
in People v. Strong (2022) 13 Cal.5th 698. Following its decision in Strong , our Supreme
Court transferred this matter back to us with direction to vacate our decision and reconsider in light of Strong . We now conclude defendant demonstrated prima facie
entitlement to relief , and that the trial court should have issued an order to show cause and conducted an evidentiary hearing. Accordingly, we reverse the order denyi ng defendant’s petition for resentencing and remand the matter for further pro ceedings

.

FACTUAL AND PROCEDURAL BACKGROUND
For the reasons detailed in our discussion , we need not provide considerable detail of the factual background of defendant’s crime

. In 2011, defendant arranged for his friend Jeanette Campbell to strip fo r Sanderson to help him with a robbery , and Campbell asked her friend Aubry Toews to help her be a distraction. ( People v. McPherson (July 25, 2018, C078601) [nonpub. opn.].) Defendant , Godines, and Mabson arrived at the apartment complex after the women entered the apartment. Defendant texted Toews to let her know they were waiting . Eventually, Toews went outside Sanderson’s apartment to signal the men that it was time for the robbery to occur. Defendant was driving, so he waited in the car while Godines and Mabson went to the apartment. Godines had a gun. ( Ibid. ) After entering the apartment, Godines opened t he door to the bedroom where Campbell was dancing for Sanderson and turned on the lights. ( People v. McPherson ,

defendant filed his petition under former section 1170.95, w e will refer to the current section 1172.6 in this opinion.3

supra , C078601

. ) He pointed a gun at Sanderson and demanded to know where Sanderson kept his money. Sanderson moved toward the door and Godin es fatally shot
Sanderson in the chest. Godines then told Campbell to “[f]ind the money” before he ran out of the apartment. Campbell also ran out of the apartment and followed Godines and
Mabson to the car. ( Ibid. ) Defendant was charged with m urder , the allegation of being armed with a firearm at the time of the murder, special circumstances of robbery and burglary during the
murder , attempted robbery, the allegation of being armed with a firearm at the time of the robbery , burglary, and the allegation of being armed with a firearm at the time of the burglary. A jury found defendant guilty of all charges , including the special
circumstances

. The jury instruction s provided that in order to find the special circumstances true, the jury must fi nd that although defendant was not the actual killer,
he acted with intent to kill, or: “1. The defendant’s participation in the crime began before or during the killing; [¶] 2. The defendant was a major participant in the crime; [¶] AND [¶] 3. W hen the defendant participated in the crime, he acted with reckless
indifference to human life. ” (See CAL CRIM No. 703 .) Defendant was sentenced to life without the possibility of parole. In 2019, defendant filed a petition for resentencing pursuant to s ection 117 2.6

. After appointing counsel and receiving briefing, t he trial court denied the petition on the basis that the jury found true the special circumstances, and “necessarily found that
defendant

. . . either was the actual killer, intended to kill , or was a major participant who acted in the robbery and burglary with reckless indifference to human life, as the jury was specifically instructed with the 2008 version of CALCRIM No. 703

. ” The trial court noted that if defendant wanted to determine the sufficiency of the evidence of the special

circumstance s finding s in light of People v. Banks (2015) 61 Cal.4th 788 ( Banks ) and People v. Clark (2016) 63 Cal. 4th 522 , he would need to file a habeas corpus petition.4 DISCUSSION
I Applicable Law
Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) , effective January 1, 2019, revised the felony

- murder rule in California “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).) The bill amended the definition of malice in section 188, revised the definition of the degrees of murder to address felony

- murder liability in section 189, and added now section 1172.6 , “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.” ( People v. Gu tierrez

- Salazar (2019) 38 Cal.App.5th 411 , 417, citing Stats. 2018, ch. 1015, § § 2

- 4.)
Section 117 2

. 6 , subdivision (a) states that a person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court for resentencing “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 or murder under the natural and probable
consequences doctrine or other theory under which malice is imputed to a person based solely o n 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 be en 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.”
Section 1172.6, subdivision (b) requires the petitioner to submit a declaration that avers eligibility for relief under the statute (based on the requirements of subdivision (a))5

and states the superior court case number, the year of conviction, and whether petit ioner requests appointment of counsel . S ection 117 2

. 6 , s ubdivision (c), which dictates how the court must handle the petition, reads: “ After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provi de a statement fully setting forth its reasons for doing so.”
Section 117 2.6 , subdivision (d) (1) provides that a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner as needed
should be held wit hin 60 days after the order to show cause

. T he prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is ineligible for resentencing. (§ 1172.6, subd. (d)(3).) At the hearing, “ [t]he admission of evidence in the hearing sh all be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed.
The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsa y, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens .” ( Ibid .)
II

Special Circumstances After Banks And Clark Section 190.2, subdivision (d) provides that special

- circumstance findings based on the enumerated felonies in paragraph (17) of subdivision (a)

⸺ which includes robbery and burglary

⸺

require that an aiding and abet ting defendant must have been a “major6

participant” and have acted “with reckless indifference to human life.” ( See Banks , supra , 61 Cal.4th at p. 798.) Thus, on its face, a special

- circumstance finding satisfies the requirements for accomplice murder li ability even after Senate Bill No. 1437. (See § 189, subd. (e) [providing where “[a] participant in the perpetration” of a robbery “in which a death occurs is liable for murder” if proven to have been “a major participant in the underlying felony and acte d with reckless indifference to human life, as described in subdivision (d) of Section 190.2”].) Since defendant’s conviction, however, our Supreme Court has refined the analysis for determining who qualifies as a major participant acting
with reckless in difference to human life in Banks , supra , 61 Cal.4th 788 and People v.
Clark , supra , 63 Cal.4th 522.
In Banks , supra , 61 Cal.4th at p age 803 , our Supreme Court identified a series of considerations, none of which are “necessary, nor is any one of them ne cessarily sufficient,” for determining whether a defendant was a major participant. These include the defendant’s role in planning the crime and in “supplying or using lethal weapons”; the defendant’s awareness of “particular dangers posed by the nature o f the crime”; whether
the defendant was “present at the time of the killing, in a position to facilitate or prevent the actual murder”; whether the defendant’s own “actions or inaction play[ed] a particular role in the death,” and what the defendant did af ter lethal force was used. ( Ibid .) Similarly, in People v. Clark , supra , 63 Cal.4th at p age 617 , the Court found “reckless indifference” to “encompass[] a willingness to kill (or to assist in another killing) to achieve a distinct aim.” It provided a nonexhaustive list of factors to consider in making this determination, including use or awareness of the presence of a weapon or weapons, physical presence at the scene and opportunity to restrain confederates or aid victims, duration of the cr ime, knowledge of any threat the con federates might represent, and efforts taken to minimize risks. ( Id . at p p. 618

- 623.)
In Strong , the Supreme Court addressed the impact of Banks and Clark on section 1172.6 petitions for defendants with special

- circumstance findings. The Court7

found “ Banks and Clark both substantially clarified the law governing findings under Penal Code section 190.2, subdivision (d)” as they “represent the sort of significant change that has traditionally been thought to warra nt reexamination of an earlier

- litigated issue.” ( People v. Strong , supra , 13 Cal. 5th at p p. 706, 717.) Thus, prior special

circumstance findings made before Banks and Clark “do not preclude a defendant from making out a prima facie case for relief under Senate Bill [No.] 1437. This is true even if the trial evidence would have been sufficient to support the findings under Banks and
Clark .” ( Strong , at p. 710.) A defendant with a special circumstance who files a section 1172.6 petition may ultimately b e found to be ineligible for relie f, but it must be determined beyond a reasonable doubt the defendant was a major participant who acted
with reckless indifference to human life under the Banks / Clark analyses. ( Strong , at
p. 720.) Though a special

- circum stance finding may be challenged through a habeas corpus petition, “nothing in section 1172.6 says that a defendant must always do so before seeking resentencing.” ( Strong , at p. 713

. )
II I Defendant Is Entitled T

o Relief
Defendant contends the trial court erred in denying his petition because he was convicted prior to Banks and Clark . He argues he should be allowed to litigate the elements of special circumstances felony murder under the “new” standard, and that the law allows him to do so purs uant to a section 117 2

. 6 petition. Given our Supreme Court’s holding in Strong , we agree. Although the requirements for the felony

- murder special circumstance did not change as a part of Senate Bill No. 1437, defendant is not barred from making a prima f acie case for relief based on the pre

- Banks / Clark special

circumstance finding and was not required to first challenge the finding via habeas corpus proceedings. ( People v. Strong , supra , 13 Cal.5th at p p

. 710, 713 .) The trial court’s statements to the contrary are inconsistent with section 1172.6 as clarified by Strong , and
it was thus e rror to deny the petition on that ground

.8

Accordingly, we reverse the trial court’s order denying the petition and remand for

t he trial court to issue an order to show cause and hold a n evidentiary hearing

. DISPOSITION
The order denying defendant’s petition for resentencing is reversed and the matter is remanded for further proceedin g s consisten t with section 1172.6, subdivisio n (c)

.

/s/ Robie, Acting P. J.

We concur:

/s/ Mauro , J.

/s/ Duarte , J.