People v. McDowell CA2/4

Filed 6/24/25 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B337050 (Los Angeles County Super. Ct. No. BA330955) Plaintiff and Respondent, v.

DAVIONE MCDOWELL,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Mildred Escobedo, Judge. Reversed and remanded. John Steinberg, 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 Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

In 2011, a jury convicted appellant Davione McDowell of one count of first degree murder, three counts of attempted murder, and four counts of attempted robbery. At the time of the crimes, McDowell was 17 years old. The superior court sentenced McDowell to a total term of 95 years to life, plus two life sentences. In 2023, McDowell petitioned for recall and resentencing pursuant to Penal Code section 1170, subdivision (d) (§ 1170(d)).1 The statute provides relief to juvenile offenders who were “sentenced to imprisonment for life without the possibility of parole” (LWOP). (§ 1170(d)(1)(A).) The superior court denied the petition to recall and resentence, finding that McDowell was ineligible because he did not receive an LWOP sentence. On appeal, McDowell argues that his sentence was the functional equivalent of LWOP and he was therefore eligible for relief under section 1170(d). Respondent Attorney General agrees, as do we. We therefore reverse the superior court’s order and remand the matter for further proceedings. BACKGROUND I. Conviction and Sentencing The underlying facts are detailed fully in this court’s prior opinion, People v. McDowell (Nov. 13, 2012, B235921) [nonpub. opn.] (McDowell). We summarize them briefly here. On September 1, 2005, seven men were playing a game of dice in the driveway of Johnny Stringer’s home. Approximately $1,000 in cash was visible on the driveway. McDowell approached the group, pulled a gun out of his pants pocket, and demanded the money. As the men turned and ran, McDowell began shooting, killing Stringer and wounding three other men. McDowell ran away without the money. In 2011, a jury convicted McDowell of one count of first degree murder (§ 187, subd. (a); count 1), three counts of premeditated attempted murder (§§ 664, 187, subd. (a); counts 2, 3, 7), and four counts of attempted second degree robbery (§§ 664, 211; counts 4, 5, 6, 8). The jury also found true criminal gang and gun use enhancement allegations for each count. (§§ 186.22, subd. (b)(1), 12022.53, subds. (b)-(d).)