P. v. McGowan

Filed 9/24/20 P. v. McGowan CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
GEORGE WILSON McGOWAN,
Defendant and Appellant.
B300245
(Los Angeles County
Super. Ct. No. BA025262)
APPEAL from an order of the Superior Court of the County
of Los Angeles, Henry J. Hall, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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I. INTRODUCTION
Twenty-seven years after his conviction for first-degree
murder, defendant George McGowan filed a petition for
resentencing under Penal Code section 1170.951 which the trial
court denied. On appeal, defendant contends that the court erred
by denying the petition without first issuing an order to show
cause. According to defendant, because his petition contained all
the information necessary under section 1170.95, subdivision (b)
and there was nothing in the record of the conviction before the
court that contradicted his allegations, the court was required to
hold an evidentiary hearing before ruling on his petition. We
affirm.
II. FACTUAL BACKGROUND2
On the evening of August 22, 1990, the victim, Derrick
Smith, drove his car to the Los Angeles home of A.K., who then
accompanied the victim to the liquor store to buy a bottle of wine.
When they returned from the store, they sat on the hood of the
victim’s car and talked as the victim drank wine. A group of
young people—including A.K.’s then 12-year-old sister, R.R.—was
dancing in the common driveway between A.K.’s home and her
next door neighbor’s. Defendant, his codefendant Curtis Holiday,
1 All further statutory references are to the Penal Code.
2 The facts are taken from the opinion in case number
B072661 affirming the underlying judgment of conviction.

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and another man3 approached A.K. and defendant asked if the
victim was her boyfriend. When A.K. replied no, the three men
walked to the residence next door. A.K. continued to talk with
the victim and they then entered the victim’s car where they
remained for five to ten minutes. The victim thereafter stepped
out of his car, leaving A.K. inside.
Approximately 20 minutes after defendant first approached
A.K., the three men returned to the victim’s car. They encircled
the victim and appeared to engage him in conversation. R.R.
observed a “‘shine’” being passed among defendant and his two
companions.4 A few minutes later, R.R. saw the victim raise his
right hand holding a wine bottle. A shot was fired and
“[e]veryone ran off, leaving the victim on the sidewalk.” R.R.
returned to the scene after a few minutes, covered the victim,
“and took his jewelry for safekeeping.”
The victim died of a gunshot wound to the chest. According
to the deputy medical examiner, the absence of soot or gun
powder stippling on the body indicated that the gun was fired
from a distance of at least two feet away.
III. PROCEDURAL BACKGROUND
On August 12, 1992, a jury found defendant guilty of first
degree murder and found true the allegations under sections 667,
3 Two eyewitnesses had seen defendant and Holiday, among
others, in the vicinity of the shooting earlier that evening.
4 R.R. testified that she saw a shiny object being passed
among the men and then heard a gunshot. She therefore
assumed the object was a gun.

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subdivision (a) and 667.5, subdivision (b). On December 29, 1992,
the trial court sentenced defendant to an aggregate prison term
of 31 years to life.
On February 6, 2019, defendant filed a petition for
resentencing under section 1170.95. On March 11, 2019, the trial
court appointed counsel to represent defendant.
On May 14, 2019, the trial court conducted a hearing
during which it noted that “[t]his matter is a [section] 1170.95
petition on a case from 1991 which is a little bit difficult to put
together . . . . [¶] . . . [¶] [The court has] very little information
in the court file. They [have] been able to call up some minute
orders, but those don’t seem to deal with what the fundamental
issue is here.” After a discussion with defendant’s counsel and
the prosecutor concerning the limited information available from
the record of conviction, the court continued the matter to
July 24, 2019, to allow the parties to develop more information.
On July 23, 2019, the prosecution filed an opposition to the
petition asserting that defendant was ineligible for resentencing
“because he [did] not fit into [a] category of [s]ection 1170.95 to be
resentenced[.]”
At the July 24, 2019, continued hearing on the petition, the
trial court and counsel engaged in the following colloquy:
“The Court: [ ] I reviewed what the petitioner filed here
and I see nothing to indicate that he’s entitled to relief. [¶] It’s
not a felony murder case as far as I can tell. He’s alleged no facts
indicating to me that he’s entitled to relief.
“[Prosecutor]: That’s the People’s position, Your Honor. [¶]
We would argue that this was, in fact, a murder that was aided
and abetted by [defendant]. And if that’s the case there’s an
intent to kill.

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“The Court: I don’t even know that. There’s nothing—he’s
alleged zero facts to support any entitlement to relief. All he said
is he wants relief.
“[Prosecutor]: Right. Unfortunately, I was the district
attorney that tried it. That was my recollection of the case. But,
again, that’s the People’s position, Your Honor. [¶] I don’t know
how the court and counsel want[] to proceed.
“The Court: Do you have anything to the contrary, counsel?
“[Defense Counsel]: Your Honor, the only paperwork I
have on this matter is the petition. I have nothing further. [¶]
I’ve contacted the [Attorney General’s] office. I contacted the
[public defender’s] office. I contacted [defendant]. [¶] [The
prosecutor] indicated he does have a copy of the preliminary
hearing transcript and some documentation from the murder
book which he indicated he was going to provide to me, but I’m in
the dark as to any of the other facts in this case.”
Following the colloquy, the trial court denied the petition
without prejudice, noting that “if [defendant] come[s] up with
some facts that might support relief he [is] free to refile.”
Defendant appealed from the denial of the petition.5
5 On appeal, the Attorney General lodged a copy of the record
in the direct appeal from defendant’s judgment of conviction and
requested that we take judicial notice of it. We grant the request.

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IV. DISCUSSION
A. Senate Bill 1437’s6 Amendments to Sections 188 and 189
and Addition of Section 1170.95
“[Senate Bill 1437], effective January 1, 2019, amended the
felony-murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder. Senate Bill 1437
also permits, through new [] section 1170.95, an individual
convicted of felony murder or murder under a natural and
probable consequences theory to petition the sentencing court to
vacate the conviction and be resentenced on any remaining
counts if he or she could not have been convicted of murder
because of Senate Bill 1437’s changes to the definition of the
crime.” (People v. Verdugo (2020) 44 Cal.App.5th 320, 323, fn.
omitted, review granted Mar. 18, 2020, S260493 (Verdugo).)
Section 1170.95, subdivision (b) specifies the information
that must be set forth in a petition for resentencing, including a
declaration by the petitioner “that he or she is eligible for relief
under this section, based on all the requirements of
subdivision (a).” (§ 1170.95, subd. (b)(1)(A).) Subdivision (b) also
provides that, if the petitioner fails to set forth the required
information and it cannot be readily ascertained by the court, the
court may deny the petition without prejudice. (§ 1170.95,
subd. (b)(2).) “This initial review thus determines the facial
sufficiency of the petition.” (Verdugo, supra, 44 Cal.App.5th at
p. 328.)
6 Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
1437).

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Section 1170.95, subdivision (c) “prescribes a two-step
process for the court to determine if an order to show cause
should issue: ‘The court shall review the petition and determine
if the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section. If the
petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner. The prosecutor shall file and serve a
response . . . and the petitioner may file and serve a reply . . . . If
the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.’”
(Verdugo, supra, 44 Cal.App.5th at p. 327.)
“Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) If the prosecutor
does not stipulate to vacating the conviction and resentencing the
petitioner (§ 1170.95, subd. (d)(2)), the People have the
opportunity to present new and additional evidence at the
hearing to demonstrate the petitioner is not entitled to
resentencing. (§ 1170.95, subd. (d)(3).) The petitioner also has
the opportunity to present new or additional evidence in support
of the resentencing request. [Citation.]” (Verdugo, supra, 44
Cal.App.5th at p. 327.)
B. Analysis
Defendant contends that the trial court erred by denying
his petition without issuing an order to show cause. According to
defendant, his petition contained all the necessary information
required by section 1170.95, subdivision (b) and was thus facially

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sufficient. Defendant therefore concludes that the trial court was
required under section 1170.95, subdivision (c) to issue an order
to show cause and hold an evidentiary hearing on whether
defendant had made a prima facie showing of his entitlement to
relief. We disagree.
Based on our review of the appellate record in case number
B072661 and the opinion affirming defendant’s first degree
murder conviction, we conclude that defendant’s conviction was
not based on either a felony-murder or natural and probable
consequences theory. The prosecution proceeded on a theory that
defendant aided and abetted the first-degree murder of the
victim. The court instructed the jury that “[a] person aids and
abets the commission of a crime when he (1) with knowledge of
the unlawful purpose of the perpetrator, and (2) with the intent
or purpose of committing, encouraging, or facilitating the
commission of the crime by act or advi[c]e aids, promotes, advises
and encourages, or instigates the commission of the crime.” The
prosecutor did not argue that defendant was guilty under either a
felony murder or natural and probable consequences theory and
the court did not instruct the jury on either theory.7 Thus,
defendant did not—indeed, could not—make a prima facie
showing that he was entitled to relief and the court was not
required to issue an order to show cause. (Verdugo, supra, 44
Cal.App.5th at p. 330 [the record of conviction may establish that
defendant “is ineligible for relief as a matter of law because he or
she was convicted on a ground that remains valid
7 Although the prosecution earlier requested that the trial
court instruct the jury on the natural and probable consequences
doctrine, it withdrew that request during the jury instruction
conference.

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notwithstanding [Senate Bill] 1437’s amendments to section 188
and 189”].)
Moreover, even assuming the trial court improperly based
its ruling on defendant’s failure to support his petition with
documents establishing his entitlement to relief, the denial of the
petition was nevertheless correct based on the record of his direct
appeal. (People v. Zapien (1993) 4 Cal.4th 929, 976 [“‘“[A] ruling
or decision, itself correct in law, will not be disturbed on appeal
merely because given for a wrong reason”’”].)

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V. DISPOSITION
The order denying the petition for resentencing under
section 1170.95 is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.

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