People v. McGowen CA1/4

Filed 10/10/24 P. v. McGowen CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

PEOPLE OF THE STATE OF CALIFORNIA, A170252 Plaintiff and Respondent, v. (Alameda County Super. Ct. No. 610425B) MYKOLAY JIMMY MCGOWEN, Defendant and Appellant.

Mykolay Jimmy McGowen appeals from his sentence of concurrently running terms of life with the possibility of parole for two premeditated and deliberate attempted murders and six years for assault with a firearm to run concurrently with the life sentence. McGowen’s appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, summarizing the facts and procedural history, asking this court to independently review the record to identify any issues warranting review. McGowen filed a supplemental letter raising the following issues: 1) the evidence was insufficient to convict him of attempted murder of Christian and Myzil Waters; 2) the trial court improperly admitted hearsay evidence; and 3) the kill zone instruction and the prosecutor’s argument misstated the law. As explained below, all the issues raised by McGowen’s supplemental letter were addressed in his first appeal in People v. McGowen, case No. A152294.

1

McGowen also appeals the denial of his Penal Code section 1172.6 petition pursuant to People v. Delgadillo (2022) 14 Cal.5th 216.1 McGowen was advised that this court is not required to review the record of a denial of a section 1172.6 petition where counsel has found no arguable issues, unless a supplemental letter or brief addressing eligibility for resentencing has been submitted. McGowen’s supplemental letter did not address his eligibility for section 1172.6 relief. Finding no arguable issues on appeal, we affirm. Additionally, we decline to exercise our discretion to address the denial of McGowen’s section 1172.6 petition. FACTUAL AND PROCEDURAL BACKGROUND We take the facts from our prior opinion in this matter as follows: Christian and Myzil Waters were standing in front of their house in East Oakland when shots were fired in their direction. Christian suffered serious gunshot injuries to his right wrist while a bullet shattered Myzil’s hip.2 At the time of the shooting, Dan Tran was working at his auto mechanic’s shop, located between the points from which the shots were fired and where Christian and Myzil were standing. Tran was shot as he stepped out of a car that was parked in the front lot of his shop. Surveillance video from Tran’s shop depicted the shooter and the SUV in which the shooter arrived at the scene. An Oakland Police Sergeant, who viewed the surveillance video, was able to locate the SUV. After police located the SUV, McGowen was arrested. McGowen’s fingerprints were found on the passenger’s side inside the SUV. In a search of McGowen’s