People v. McKnight CA2/2

Filed 11/23/21 P. v. McKnight CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B311474

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA388294) v.

LAMAR MCKNIGHT,

Defendant and Appellant.

THE COURT: A jury convicted defendant and appellant Lamar McKnight of murder (Pen. Code, § 187, subd. (a); count 1) and attempted murder (Pen. Code, §§ 664 & 187, subd. (a); count 2). Special circumstances (Pen. Code, §§ 190.2, subd. (a)(22), 12022.53, subds. (b), (c), (d), & (e)(1)) were also found true. He was sentenced to life imprisonment without parole, plus 25 years to life pursuant to Penal Code section 12022.53, subdivisions (d) and (e)(1), on count 1 and to a consecutive term of life plus 20 years pursuant to Penal Code section 12022.53, subdivisions (c) and (e)(1) on count 2. He was also

ordered to pay a parole revocation fine and a victim restitution fine. Defendant appealed his conviction, and we affirmed the judgment, but remanded the matter for a hearing on the amount of restitution. (People v. Houston (May 15, 2018), B267503 [nonpub. opn.], at p. 46.) In affirming, we agreed with defendant that the trial court erroneously instructed the jury that it could find defendant guilty of murder pursuant to the natural and probable consequences doctrine. (Id. at p. 39.) However, we found that error to be harmless, concluding “beyond a reasonable doubt that the jury convicted [defendant] on a direct aiding and abetting theory.” (Id. at p. 40.) Regarding restitution, we reversed the restitution fines and remanded the matter for a hearing. (Id. at p. 46.) On November 12, 2019, defendant filed a petition for resentencing pursuant to Penal Code section 1170.95, subdivision (a). He alleged that an information had been filed against him “that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine;” he was convicted of first degree murder under one of those theories; and he could not now be convicted due to changes to Penal Code sections 188 and 189 because he was not the actual killer, did not aid or abet the actual killer, and was not a major participant or act with reckless indifference to human life.