People v. McCoy CA3

Filed 8/17/20 P. v. McCoy CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C089978

Plaintiff and Respondent, (Super. Ct. No. 78299)

v.

AARON DESHAWN MCCOY,

Defendant and Appellant.

Appointed counsel for defendant Aaron Deshawn McCoy filed an opening brief setting forth the facts of the case and asking this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we affirm the trial court’s postjudgment order. BACKGROUND We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

1

Following a jury trial, defendant was found guilty of several crimes including second degree murder (Pen. Code, § 187)1 with a gun enhancement (§ 12022.5). The facts underlying defendant’s convictions are described in People v. McCoy (June 20, 1989, C002612) [nonpub. opn.], and we need not recount them in detail here. Suffice it to say that following an exchange of words at an intersection, defendant shot his victim in the neck, killing him. The trial court sentenced defendant to an aggregate term of 24 years to life in state prison. On appeal, this court affirmed the judgment. (People v. McCoy, supra, C002612.) On January 9, 2019, defendant filed a petition for resentencing under newly enacted section 1170.95. The Legislature enacted and the Governor signed Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019 (Stats. 2018, ch. 1015, § 4), determining that the change in law was “ ‘necessary 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.’ ” (People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275.) As pertinent here, Senate Bill No. 1437 added section 1170.95, which permits a person convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the murder conviction and resentence the person on any remaining counts if, among other things, the petitioner could not be convicted of first or second degree murder due to the change in the law. (§ 1170.95, subd. (a).) In the form petition, defendant asserted he was prosecuted and convicted of murder on a theory of felony murder or murder under the natural and probable