California Court of Appeal Nov 29, 2022 No. E075089AUnpublished
Filed 11/29/22 P. v. McLaughlin CA4/2 Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075089
v. (Super.Ct.No. CR42433)
MARTIN MAJOR MCLAUGHLIN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys
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General, A. Natasha Cortina, Lynne G. McGinnis and Melissa Mandel, Deputy Attorneys
General, for Plaintiff and Respondent.
INTRODUCTION
In 1993, defendant Martin Major McLaughlin was tried and convicted of first
Senate Bill 1437 also added section 1170.95 (currently renumbered as section
1172.6), which permits a person convicted of murder under a felony-murder or natural
and probable consequences theory to petition the court to have the murder conviction
vacated and to be resentenced. (Former § 1170.95, subds. (a) & (e).) Former section
1170.95 requires that the petition be filed in the sentencing court, and must include the
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petitioner’s declaration showing eligibility, the case number, the year of conviction, and
any request for counsel. (Former § 1170.95, subd. (b); People v Verdugo (2020) 44
Cal.App.5th 320, 327, review granted March 18, 2020, S260493 (Verdugo).)
Former section 1170.95, subdivision (a) provides that a person convicted of
felony-murder or murder under a natural and probable consequences theory may petition
the trial court to have his or her murder conviction vacated or be resentenced , asserting
the petitioner could “not be convicted of first or second degree murder because of
changes to Section[s] 188 or 189” made by Senate Bill 1437. (Former § 1170.95, subd.
(a), Lewis, supra, 11 Cal.5th at p. 959.)
Lewis clarified the procedure by which a trial court determines if the petitioner has
made a prima facie showing and instructs us that to make the determination, courts may
review the entire record of conviction, including the opinion in the direct appeal, and that
“‘[a] court should not reject the petitioner’s factual allegations on credibility grounds
without first conducting an evidentiary hearing.’” (Lewis, supra, 11 Cal.5th at p. 971,
citing People v. Drayton (2020) 47 Cal.App.5th 965, 978 [fn. omitted]; In re Serrano
(1995) 10 Cal.4th 447, 456].) The Supreme Court, however, cautioned that “‘if the
record, including the court’s own documents, “contain[s] facts refuting the allegations
made in the petition,” then “the court is justified in making a credibility determination
adverse to the petitioner.”’[Citations.]” (Lewis, supra, 11 Cal.5th at p. 971.)
Subsequently, the Supreme Court issued another decision resolving an issue of
great concern in Strong, supra, 13 Cal.5th 698, where it held that the fact a defendant’s
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conviction includes a true finding on a special circumstance allegation, issued by a jury
prior to the holdings of People v. Banks (2015) 61 Cal.4th 788, and People v. Clark
(2016) 63 Cal.4th 522, does not, ipso facto, render the defendant ineligible for relief at
the prima facie stage. (Strong, supra, 13 Cal.5th at pp. 710, 718.)
We now turn to the defendant’s petition, as it has been impacted by these recent
cases.
2. Defendant’s Eligibility for Resentencing Under These Precedents.
a. Effect of the Holding of Lewis.
In the present case, defendant’s petition was denied at the prima facie stage based
on the People’s motion to dismiss, arguing that defendant was the actual killer, as
evidenced by the jury’s gun use enhancement finding and the special circumstances. The
only documentation presented to the court for consideration was, apparently, the
probation report, which is not a part of the record of conviction. (People v. Dunn (2022)
81 Cal.App.5th 394, 403; see also, People v. Reed (1996) 13 Cal.4th 217, 230-231.)
The trial court did not have the benefit of the holding in Lewis to guide its review
of defendant’s petition and thus made a determination that defendant failed to make a
prima facie showing of entitlement to resentencing without considering the entire record
of conviction. For this reason, remand is necessary pursuant to the holding of Lewis, for
a proper consideration of the record of conviction to determine the precise nature of
defendant’s conviction, including the nature of the findings as to special circumstances
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and gun use, in determining if defendant is entitled to an order to show cause and
resentencing.
b. Effect of the Holding of Strong.
The People urge us to affirm anew because the “record of conviction” shows
defendant was convicted of murder as the actual shooter, as evidenced by the gun use
allegation and the felony-murder special circumstances finding. {SRB 4} However, as
we have noted, the trial court’s conclusion that defendant had failed to make a prima
facie showing was reached without the benefit of the recent Supreme Court precedents.
In Strong, which was decided while this case was pending on appeal and review in
the Supreme Court, the Supreme Court concluded that where a jury made findings on
special circumstances allegation prior to the holdings of Banks and Clark, the fact of the
findings on the allegation do not automatically render a defendant ineligible for
resentencing relief under former section 1170.95, renumbered as section 1172.6.
Under section 1172.6, the trial court must vacate a first-degree murder conviction
that was based on a felony-murder theory, unless the petitioner either (1) was the actual
killer, (2) had the intent to kill and aided and abetted the commission of first-degree
murder, or (3) was a major participant in the underlying felony and acted with reckless
indifference to human life. (§ 1172.6, subd. (d)(3), incorporating § 189, subd. (e).)
A felony-murder special circumstance, however, requires that the defendant either
(1) was the actual killer, (2) had the intent to kill and aided and abetted the commission of
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first-degree murder, or (3) was a major participant in the underlying felony and acted
with reckless indifference to human life. (§ 190.2, subds. (a)(17), (b)-(d).)
When we conducted our initial review of the trial court’s denial of defendant’s
petition for resentencing, we concluded that the record showed defendant was the actual
killer based upon the findings that he personally used a firearm and the jury’s finding on
the felony-murder special circumstances. (People v. McLaughlin (May 5, 2021, E075089
[nonpub. opn.], p. 9.) In his supplemental brief, defendant argues our initial conclusion
was incorrect and that there was not sufficient evidence to support the conclusion that
defendant was the killer because there were inconsistent statements made by witnesses
for the prosecution. {SAOB pp. 4-5} These arguments miss the mark, although, as we
have already noted, remand is necessary to allow the court to consider whether the
petition set forth a prima facie showing in light of the actual record of conviction.
Because we based our conclusion that defendant was the actual killer on the facts
the jury found he personally used a firearm, and that it found true the special
circumstances allegation (People v. McLaughlin, supra, E075089), prior to the Supreme
Court’s opinion in Strong, remand is necessary. Strong holds that a defendant is not
automatically rendered ineligible for relief under section 1170.95 or 1172.6 where the
special circumstances findings predate the holdings of Banks and Clark. Because this
court, as well as the trial court, did not have the benefit of the Supreme Court’s guidance
on these matters, remand is required to allow the trial court to reconsider defendant’s
petition in light of its decision in Strong.
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DISPOSITION
The judgment is reversed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
MILLER J.
SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court reversed the denial of the defendant's resentencing petition and remanded for further proceedings, as the trial court lacked the benefit of recent Supreme Court precedents regarding the prima facie review process and the impact of pre-Banks/Clark special circumstance findings.
Issues
Whether the trial court erred in denying the defendant's section 1172.6 petition at the prima facie stage without the benefit of the standards set forth in People v. Lewis and People v. Strong.
Whether a pre-Banks/Clark special circumstance finding automatically renders a defendant ineligible for resentencing relief under section 1172.6.
Disposition. reversed
Quotations verified verbatim against the opinion
“remand is necessary pursuant to the holding of Lewis, for a proper consideration of the record of conviction”
“Strong holds that a defendant is not automatically rendered ineligible for relief under section 1170.95 or 1172.6 where the special circumstances findings predate the holdings of Banks and Clark.”