People v. McDermott CA2/3

California Court of Appeal Oct 27, 2022 No. B302013AUnpublished

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Holding. The court held that a defendant who filed a facially sufficient petition for resentencing under Penal Code section 1172.6 is entitled to the appointment of counsel and that pre-Banks and Clark special circumstance findings do not preclude a prima facie showing of eligibility for relief.

Issues

Whether a petitioner is entitled to the appointment of counsel upon the filing of a facially sufficient petition under section 1172.6.
Whether a pre-Banks and Clark special circumstance finding precludes a defendant from making a prima facie case for relief under section 1172.6.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition”

“a pre-Banks and Clark finding that the defendant was a major participant who acted with reckless indifference does not preclude the defendant from making a prima facie case for relief under section 1172.6”

Filed 10/26/22 P. v. McDermott CA2/3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B302013

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. SA052445) v.

ROHAN MCDERMOTT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Mark E. Windham, Judge. Reversed with direction. Robert D. Bacon, 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, Wyatt E. Bloomfield and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent. ________________________

A jury convicted Rohan McDermott of first degree murder with a true finding on a special circumstance. Years after he was convicted, McDermott petitioned the trial court in 2019 for vacation of his conviction and for resentencing under then recently-enacted Penal Code1 section 1172.6.2 The trial court summarily denied relief, and we affirmed that order on appeal. (People v. McDermott (Jan. 29, 2021, B302013 [nonpub. opn.].) Our California Supreme Court granted review and has now transferred the matter back to us with the direction to vacate our decision and to reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). Doing so, we conclude that the trial court’s order must be reversed and the matter remanded for further proceedings. BACKGROUND I. The murder and McDermott’s conviction In 2004, McDermott and Alcliff Daley planned to steal marijuana from Troy Lewis and Dwane Godoy. After luring the men into Daley’s apartment, Daley pointed a gun at Godoy and Lewis, and McDermott taped their hands behind their backs. Daley threatened to kill them and leave their bodies to rot in a closet. When Daley noticed that Godoy had managed to free his hands, he put the gun to Godoy’s head and again threatened to kill him. McDermott retaped Godoy’s hands and also taped his

People v. McDermott CA2/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B302013

ROHAN MCDERMOTT,

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