P. v. McLaughlin

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Filed 5/5/21 P. v. McLaughlin CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
v.
MARTIN MAJOR MCLAUGHLIN,
Defendant and Appellant.
E075089
(Super.Ct.No. CR42433)
OPINION
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Brett Harding Duxbury, under appointment by the Court of Appeal, for Defendant
and Appellant.

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Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney 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
degree murder (Pen. Code,1 § 187), with findings that he personally used a firearm
(§ 12022.5), and a special circumstance finding that the murder was committed during a
robbery (former § 190.2, subd. (a)(17)(i), currently numbered § 190.2, subd. (a)(17)(A)).
He was sentenced to life without possibility of parole (LWOP) plus a consecutive term of
4 years for the gun use enhancement. In 2019, following enactment of Senate Bill No.
1437 (Senate Bill 1437) and section 1170.95, defendant petitioned for resentencing, but
the petition was denied. He appeals the denial of that petition.
On appeal, defendant argues that the trial court improperly denied the petition
where the People failed to establish that defendant was not convicted as an aider/abettor
to the felony-murder or that he was not convicted under the natural and probable
consequences theory. We affirm.
BACKGROUND
We take the background facts relating to the offense from our unpublished opinion
filed in the direct appeal, case No. E013276, People v. McLaughlin, filed on September 2,
1994:
1 All further statutory references are to the Penal Code, unless otherwise
indicated.

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Banning Police Officer Robert Stafford was patrolling the area around Blanchard
and George Street in Banning at 9:47 p.m. on November 10, 1991. Drug dealers openly
sold drugs in the area to buyers who would drive up and buy drugs while sitting in their
vehicles. Sometimes buyers would be robbed by the dealers.
That evening, Stafford saw a body lying on the ground next to a truck parked on
George Street. The driver’s door was closed with the window partially open, the truck
engine was running, the transmission was in drive and the passenger door was open.
Earlier that evening the victim, Joel Youngs, was driving around the area in his
truck with two women. They returned to Blanchard and George Street to buy some
drugs. Youngs gave one of the women some money from his wallet to buy drugs. As the
woman entered a house to buy the drugs, she remarked to a group of people, which
included defendant, that Youngs had a lot of money on him. The people in the group
then engaged in a brief conversation.
Defendant, carrying a gun, walked up to the driver’s door of Youngs’s truck and
demanded that Youngs open the door. When Youngs refused, defendant pounded on the
window with his gun and demanded Youngs open the door. Defendant then fired the gun
twice at very close range killing Youngs. Defendant then ran from the scene.
Youngs’s wallet was never recovered. Officers found defendant’s fingerprints on
the driver’s side window of Youngs’s truck.

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Defendant was charged and convicted by a jury of first degree murder.2 (§ 187.)
The jury also made true findings as to the special circumstance allegation that the murder
was committed during the commission of a robbery (§§ 190.2, subd. (a)(17), 211), and
that defendant personally used a firearm (§ 12022.5). He was sentenced to LWOP for the
special circumstances murder, plus a consecutive 4-year term for the personal use of the
firearm. Defendant appealed that conviction, and we affirmed in full. (People v.
McLaughlin, supra, E013276, [nonpub. opn.].)
On August 6, 2019, defendant filed a petition for resentencing pursuant to section
1170.95. His petition alleged that he was convicted of first or second degree murder
under the felony-murder theory or natural and probable consequences theory, that he
could not now be convicted of first or second degree murder because of changes to
sections 188 or 189, and that he was not the actual killer.
On February 21, 2020, the court denied the petition. Defendant appealed.
DISCUSSION
Defendant argues that his section 1170.95 petition should have been granted
because the People never established that the jury did not convict him on a felony-murder
or a natural and probable consequences theory. As we will explain, defendant was,
indeed, convicted under a felony-murder theory, but he was not charged or convicted as
an aider/abettor or under a natural and probable consequences theory. Instead, the record
2 On October 28, 2020, we granted the People’s unopposed request to take
judicial notice of the appellate record in case No. E013276, including our unpublished
opinion in that case.

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of conviction shows he was the actual killer, and, under section 1170.95, is therefore not
entitled to relief.
Senate Bill 1437 was passed in 2018 and became effective in January 2019. The
Legislature passed the bill after determining that there was further “need for statutory
changes to more equitably sentence offenders in accordance with their involvement in
homicides.” (Stats. 2018, ch. 1015, § l, subd. (b).)
The legislation accomplished this, in part, by amending section 188 to require that,
when the felony-murder rule does not apply, a principal in the crime of murder shall act
with malice aforethought, and that “[m]alice shall not be imputed to a person based solely
on his or her participation in a crime.” (Stats. 2018, ch. 1015, § 2; In re R.G. (2019) 35
Cal.App.5th 141, 144.) Under these amendments, the natural and probable consequences
doctrine can no longer be used to support a murder conviction. (People v. Lopez (2019)
38 Cal.App.5th 1087, 1103 & fn. 9 [review granted November 13, 2019, S258175]; Stats.
2018, ch. 1015, § 1(f).)
The change did not, however, alter the law regarding the criminal liability of direct
aiders and abettors of murder because such persons necessarily “know and share the
murderous intent of the actual perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111,
1118; see People v. Chiu (2014) 59 Cal.4th 155, 167 [a direct aider and abettor “acts with
the mens rea required for first degree murder”].) One who directly aids and abets another
who commits murder is thus liable for murder under the new law just as he or she was
liable under the old law. Nor did the law affect persons convicted as the actual killer.

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Amended section 189 limits first degree murder liability based on a felony-murder
theory to a person who: (1) was the actual killer; or (2) although not the actual killer,
intended to kill and assisted the actual killer in the commission of first degree murder; or
(3) was a major participant in the underlying felony who acted with reckless indifference
to human life. (§ 189, subd. (e).) In so doing, Senate Bill 1437 ensures that murder
liability is not imposed on a person who did not act with implied or express malice, was
not the actual killer, did not act with the intent to kill, or was not a major participant in
the underlying felony who acted with reckless indifference to human life. (People v.
Munoz (2019) 39 Cal.App.5th 738, 749-750, review granted November 26, 2019,
S258234.)
Senate Bill 1437 also added section 1170.95, 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. (§ 1170.95,
subds. (a) & (e).) Section 1170.95 requires that the petition be filed in the sentencing
court, and must include the petitioner’s declaration showing eligibility, the case number,
the year of conviction, and any request for counsel. (§ 1170.95, subd. (b); People v
Verdugo (2020) 44 Cal.App.5th 320, 327 [review granted March 18, 2020, S260493]
(Verdugo).)
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

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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. (§ 1170.95, subd. (a), People v. Lewis
(2020) 43 Cal.App.5th 1128, 1135-1136 [review granted March 18, 2020, S260598]
(Lewis).) Subdivision (c) of section 1170.95 describes the next stage of the petition
process: “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 within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the
prosecutor[’s] response is served. These deadlines shall be extended for good cause. 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.”
In Verdugo, supra, the court interpreted this provision as providing for a multi-
step process in evaluating a section 1170.95 petition. An initial review is conducted to
determine the facial sufficiency of the petition. If the trial court determines a petitioner
has made a prima facie showing of eligibility for relief, the court proceeds to the
“second” inquiry into the prima facie showing under section 1170.95(c). (Verdugo,
supra, 44 Cal.App.5th at p. 330 [review granted March 18, 2020, S260493].) In this
second step, the trial considers whether the petitioner has made a prima facie showing of
entitlement to (rather than eligibility for) relief. (Id. at pp. 327–330, rev.gr.; People v.
Tarkington (2020) 49 Cal.App.5th 892, 897, citing People v. Torres (2020) 46

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Cal.App.5th 1168, 1177–1178; People v. Drayton (2020) 47 Cal.App.5th 965, 975–976
[§ 1170.95 provides for two separate prima facie reviews, with the first focused on
eligibility for relief and the second on entitlement to relief].)
At this level of evaluation, the trial court’s authority to make factual
determinations at the prima facie stage “‘is limited to readily ascertainable facts from the
record (such as the crime of conviction).’ [Citation.]” (People v. Duchine (2021) 60
Cal.App.5th 798, 812.) Thus, “[i]f a defendant asserts he lacked the requisite intent or
did not act in a manner that would make him liable under still-valid murder theories,
unless the record of conviction refutes those assertions as a matter of law, the defendant
has met his prima facie burden.” (Id. at p 813, citing Drayton, supra, 47 Cal.App.5th at
p. 980.)
In Lewis, the reviewing court held that, in determining whether the petitioner has
stated a prima facie basis for relief, a trial court may consider the record of conviction, a
question currently pending in the California Supreme Court. (Lewis, supra, 43
Cal.App.5th at p. 1137.) The court reached this conclusion by considering analogous
situations where trial courts are permitted to consider their own files and the record of
conviction in evaluating a petitioner’s prima facie showing of eligibility for relief. (Ibid.,
[referring to § 1170.18, enacted by Proposition 47, where a person convicted of certain
felonies that have been legislatively redefined as misdemeanors], citing People v. Page
(2017) 3 Cal.5th 1175, 1179.) The Lewis court observed that in such petitions, a trial
“court undertakes an “‘initial screening’” of the petition to determine whether it states “‘a

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prima facie basis for relief.’”” (Lewis, supra, 43 Cal.App.5th at p. 1137, citing People v.
Washington (2018) 23 Cal.App.5th 948, 953, 955 [noting that in evaluating the petition at
that stage, the court is permitted to examine the petition “‘as well as the record of
conviction.’”].)
In Drayton, the reviewing court also considered the record of conviction,
comparing this second level of “prima facie eligibility review” as akin to the review
conducted by courts in determining whether a defendant in a habeas proceedings has
made a prima facie showing of entitlement to an order to show cause. (Drayton, supra,
47 Cal.App.5th at pp. 977-978.) There, court observed 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.’” (Drayton, supra, 47 Cal.App.5th at p. 979, citing In re Serrano (1995) 10
Cal.4th 447, 456.) However, in that case, the reviewing court reversed the denial of a
petition because the trial court denied the petition after making credibility determinations
where there were “no facts in the trial court record that, as a matter of law, refuted
Drayton’s assertion that he had been convicted of first degree murder on a theory of
felony murder.” (Drayton, supra, 47 Cal.App.5th at p. 981.)
Here, the defendant’s petition alleged he was convicted under the felony-murder
doctrine but that he was not the actual killer. This assertion is directly refuted by the
record of conviction which demonstrates the jury found he personally used a firearm and
made a true finding on the felony-murder special circumstance. It would result in an

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unnecessary expenditure of judicial time and resources to require a trial court to issue an
order to show cause and conduct an evidentiary hearing in a case such as this, based
solely on the defendant’s check mark in a box stating, “I was not the actual killer,” where
the record of conviction demonstrates otherwise.
A defendant who was convicted based on a record demonstrating that he was the
actual killer is ineligible for resentencing under section 1170.95. (People v. Cornelius
(2020) 44 Cal.App.5th 54, 58 [review granted March 18, 2020, S260410].) In Cornelius,
the reviewing court concluded the jury implicitly found the defendant was the actual
killer because it found he personally and intentionally used a firearm to commit the
crime, rendering the statutory changes inapplicable to him. (Ibid.) Here, the jury’s true
finding he personally used the firearm reveals he was the actual killer, and there is no
indication that anyone else present at the commission of the robbery-murder had a
firearm or fired a shot, much less killed the victim.
The bare allegations by defendant that he is eligible for relief were directly refuted
by the record of conviction demonstrating he was the actual killer. Because the amended
provisions of sections 188 and 189 do not affect persons who were convicted as being the
actual killer, defendant is not entitled to relief.

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
MILLER
J.
SLOUGH
J.

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