People v. McFadden CA1/3

Filed 9/2/22 P. v. McFadden CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, A162697 v. DARREN JERRELL McFADDEN, (Solano County Super. Ct. Defendant and Appellant. No. FCR306923)

MEMORANDUM OPINION1 Darren Jerrell McFadden appeals from the trial court’s summary denial of his petition for resentencing. (Former § 1170.95.) We affirm.

We resolve this case by memorandum opinion pursuant to California 1

Standards of Judicial Administration, section 8.1, reciting only those facts necessary to resolve the issue raised. Undesignated statutory references are to the Penal Code. Our brief factual summary is drawn from our unpublished opinion in McFadden’s prior appeal, People v. McFadden (Apr. 5, 2017, A146219), and we take judicial notice of the record in that appeal. (See People v. Lopez (2022) 78 Cal.App.5th 1, 13.) Effective June 30, 2022, section 1170.95 was renumbered section 1172.6. (See Stats. 2022, ch. 58, § 10.)

1

The prosecution charged McFadden and several other defendants — including Danny Jeffreys, Timothy Mitchell, and Trayvon Wayfer — with first degree murder and attempted murder arising out of a shooting at an apartment complex in Fairfield. The operative information alleged Jeffreys personally discharged a firearm in the commission of both offenses. (§ 12022.53, subd. (c).) At a joint trial with Jeffreys, the prosecution presented evidence that McFadden drove his car to the apartment complex, and that he was present when the shooting occurred. After the shooting, McFadden conferred with Wayfer, then drove away from the apartment complex with Mitchell. The trial court instructed the jury on direct aiding and abetting and on aiding and abetting intended crimes (CALCRIM Nos. 400, 401). It also instructed the jury on murder and attempted premeditated murder (CALCRIM Nos. 520, 521, 600, 601). The jury was not instructed on felony murder or on the natural and probable consequences doctrine. In 2014, the jury convicted McFadden of first degree murder and attempted premeditated murder. In 2017, this court affirmed the convictions but ordered a limited remand under People v. Franklin (2016) 63 Cal.4th 261. In late 2019, McFadden petitioned for resentencing under former section 1170.95. The prosecution opposed the petition. At an August 2020 hearing — where McFadden was represented by counsel — the parties submitted on their briefing. The trial court summarily denied the petition, finding McFadden “was convicted as an aider or abettor” and that he was neither prosecuted nor convicted under “a theory of felony murder or murder under [the] natural and probable consequences doctrine; rather the evidence established [McFadden] acted with requisite intent upon which a murder conviction could stand.”