P. v. McCavitt

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Filed 4/26/21 P. v. McCavitt CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(El Dorado)
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THE PEOPLE,
Plaintiff and Respondent,
v.
JOSHUA BRANDON MCCAVITT,
Defendant and Appellant.
C090860
(Super. Ct. No. P13CRF0303)
Defendant Joshua Brandon McCavitt appeals from the trial court’s order denying
his petition for resentencing pursuant to Penal Code section 1170.951 and Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). Defendant argues the trial court
incorrectly concluded he was ineligible for relief under section 1170.95. We agree with
the trial court and affirm the order.
1 Undesignated statutory references are to the Penal Code.

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FACTUAL AND PROCEDURAL HISTORY
A.
The Murder
A jury found defendant guilty of second degree murder (§ 187, subd. (a)) and
gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)). (People v. McCavitt
(Dec. 2, 2016, C076173) [nonpub. opn.] (McCavitt).) The trial court sentenced defendant
to an indeterminate term of 15 years to life in prison for the murder, plus a consecutive
determinate term of two years for the on-bail enhancement. We affirmed the judgment in
an unpublished opinion.2 (McCavitt, supra, C076173.) We summarize the facts from
our unpublished opinion:
In September 2012, defendant, while intoxicated on alcohol and various drugs,
sped his vehicle into oncoming traffic. As the victim slowly drove her car around a curve
in the road, defendant crashed his car head-on into the victim’s car. The impact propelled
defendant’s vehicle over the victim’s hood and into the cab of the car. Both cars flipped
over, and the victim died instantly. Witnesses described the sound of their impact as an
explosion.
B.
The Jury Instructions and the Verdict
The jury was instructed that to find defendant guilty of murder, it must find
defendant acted with implied malice. The instructions explained that defendant acted
2 It is clear that the trial court relied upon defendant’s record of conviction, which
includes our prior opinion McCavitt, supra, C076173, in ruling on defendant’s petition.
We therefore incorporate this opinion by reference as part of defendant’s record of
conviction (People v. Woodell (1998) 17 Cal.4th 448, 456), which may be properly
considered in the trial court’s prima facie review. (People v. Lewis (2020)
43 Cal.App.5th 1128, 1136, fn. 7, review granted Mar. 18, 2020, S260598; People v.
Verdugo (2020) 44 Cal.App.5th 320, 333, review granted Mar. 18, 2020, S260493
(Verdugo)).

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with implied malice if he intentionally committed an act, the natural and probable
consequence of the act was dangerous to human life, he knew his act was dangerous to
human life, and he deliberately acted with conscious disregard for human life. To prove
the malice element of the murder charge, the prosecution presented evidence of a prior
driving under the influence (DUI) conviction defendant sustained in Hawaii in 2006,
along with a video from a DUI course he took in connection with that conviction.
(McCavitt, supra, C076173.)
The jury found defendant guilty of murder and gross vehicular manslaughter while
intoxicated, which we affirmed on appeal. (McCavitt, supra, C076173.)
C.
The Petition
Defendant, representing himself, filed a form petition for resentencing under
section 1170.95. In the petition, defendant declared he met the requirements for relief,
specifically, that (1) the complaint, information, or indictment filed against him allowed
the prosecution to proceed under a theory of felony murder or the natural and probable
consequences doctrine; (2) he was convicted of first or second degree murder under the
felony-murder rule or the natural and probable consequences doctrine; and (3) he could
not now be convicted of first or second degree murder because of changes to sections 188
and 189, effective January 1, 2019. Defendant also requested the court appoint him
counsel. In support of his petition, defendant included the first ten pages of the opening
brief from his prior appeal and a partial transcript of the trial court reading his jury
instructions aloud to the jury. The partial transcript included the complete jury
instructions on the second degree murder charge.
The trial court appointed counsel and set a briefing schedule for the petition. With
the court’s permission, defendant filed an amended petition. The prosecution filed a
response, which argued defendant was not eligible for resentencing. Thereafter, the
public defender’s office sent a letter to defendant informing him that he did not qualify

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for relief under section 1170.95, and thus it would not file a reply on defendant’s behalf.
The court then granted defendant’s motion to proceed in propria persona, and defendant
filed a reply.
In a written ruling, the trial court denied defendant’s petition. It concluded that
defendant could still be prosecuted and convicted for murder pursuant to section 188,
following the enactment of Senate Bill 1437, because “[d]efendant was the actual killer,
there were no other participants in the offense and . . . defendant was found by the jury to
have acted with implied malice (i.e., with an abandoned and malignant heart).”
DISCUSSION
A.
Senate Bill No. 1437 and Section 1170.95
Senate Bill 1437, which became effective on January 1, 2019, was enacted to
amend the felony-murder rule and the natural and probable consequences doctrine “to
ensure that murder liability is not imposed on a person who [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.” (Stats. 2018, ch. 1015, § 1, subd.
(f).) To accomplish this, the bill amended section 188 to require that a principal act with
express or implied malice and amended section 189 to state that a person can only be
liable for felony murder if (1) the “person was the actual killer”; (2) the person was an
aider or abettor in the commission of murder in the first degree; or (3) the “person was a
major participant in the underlying felony and acted with reckless indifference to human
life.” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, §§ 2, 3.)
Senate Bill 1437 also created section 1170.95, which “allows a ‘person convicted
of felony murder or murder under a natural and probable consequences theory [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts.’ (§ 1170.95,
subd. (a).) To file the petition, all three of the following conditions must be met: ‘(1) A

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complaint, information, or indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder or murder under the natural and
probable consequences doctrine. [¶] (2) The petitioner was convicted of first or second
degree murder following a trial . . . . [¶] (3) The petitioner could not be convicted of first
or second degree murder because of changes to [s]ection 188 or 189.’ (Ibid.)” (People v.
Cornelius (2020) 44 Cal.App.5th 54, 57, review granted Mar. 18, 2020, S260410.)
Section 1170.95, subdivisions (b) and (c) create a three-step process for evaluating
a petitioner’s eligibility for relief. (Verdugo, supra, 44 Cal.App.5th at pp. 327-330,
review granted; accord People v. Torres (2020) 46 Cal.App.5th 1168, 1177, review
granted June 24, 2020, S262011.) First, the trial court determines whether the petition is
facially sufficient under section 1170.95, subdivision (b)(2), and may rely on the record
of conviction to do so. (Verdugo, at pp. 327-330.) If the petition is facially sufficient,
then, in the second step, the trial court determines under section 1170.95, subdivision (c)
whether the petitioner has made “a prima facie showing that the petitioner falls within the
provisions of this section.” (§ 1170.95, subd. (c).) “The court’s role at this stage is
simply to decide whether the petitioner is ineligible for relief as a matter of law, making
all factual inferences in favor of the petitioner.” (Verdugo, at p. 329.) In making this
inquiry, the trial court may again examine “readily available portions of the record of
conviction,” including the “complaint, information or indictment filed against the
petitioner; the verdict form or factual basis documentation for a negotiated plea; and the
abstract of judgment,” as well as the jury instructions and any appellate opinion in the
case. (Id. at pp. 323, 329-330, 333.)
If the trial court determines that the petitioner is not ineligible for relief as a matter
of law, the evaluation of the petition proceeds to the third step, a “second prima facie
review,” in which “the court must direct the prosecutor to file a response to the petition,
permit the petitioner (through appointed counsel if requested) to file a reply and then
determine, with the benefit of the parties’ briefing and analysis, whether the petitioner

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has made a prima facie showing he or she is entitled to relief.” (Verdugo, supra,
44 Cal.App.5th at pp. 328, 330, review granted.) In this second prima facie review, the
trial court must take the petitioner’s factual allegations as true and make a preliminary
assessment whether he or she would be entitled to relief if they were proved. (Id. at
p. 328; see also People v. Drayton (2020) 47 Cal.App.5th 965, 976.)
“If, accepting the facts asserted in the petition as true, the petitioner would be
entitled to relief because he or she has met the requirements of section 1170.95
[subdivision] (a), then the trial court should issue an order to show cause . . . [and]
conduct a hearing pursuant to the procedures and burden of proof set out in section
1170.95, subd[ivision] (d).” (People v. Drayton, supra, 47 Cal.App.5th at pp. 980-981.)
B.
Defendant’s Eligibility for Relief
Defendant argues the trial court erroneously denied his petition because the jury
could not have found he acted with implied malice based on an “abandoned and
malignant heart” given that the jury was not instructed with that particular language.
Instead, citing to the phrase “natural and probable consequences” in the jury instructions,
he argues the jury was instructed on the natural and probable consequences doctrine.
Defendant further contends the trial court erred when it concluded without any additional
evidence that defendant could still be prosecuted and convicted of murder after Senate
Bill 1437. Defendant’s arguments are not persuasive.
By its terms, only “[a] person convicted of felony murder or murder under a
natural and probable consequences theory” is eligible for relief under section 1170.95.
(§ 1170.95, subd. (a).) Here, the record of conviction, and specifically the jury
instructions, show that the jury was not instructed on the felony-murder or natural and
probable consequences theory. Rather, the jury instructions and verdict show that
defendant was prosecuted and convicted of second degree murder based on a theory of

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implied malice. And because defendant was convicted on a theory of implied malice, the
amendments made by Senate Bill 1437 have no effect on defendant’s conviction.
Senate Bill 1437’s amendments to section 188 did not repeal the law imposing
criminal liability for implied malice murder. As amended, section 188 now provides:
“Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a
principal in a crime shall act with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Here,
the jury instructions stated that the jury could find defendant guilty of murder only if it
found he acted with malice aforethought. By finding defendant guilty of murder, the jury
necessarily found he acted with implied malice. Therefore, the amendments made by
Senate Bill 1437 had no effect on defendant’s conviction, and as a matter of law he is not
entitled to resentencing under section 1170.95.
Defendant argues the “natural and probable consequences” language in the jury
instructions show that he was prosecuted under a natural and probable consequences
theory. Defendant is mistaken. A person acts with implied malice “when a person
willfully does an act, the natural and probable consequences of which are dangerous to
human life, and the person knowingly acts with conscious disregard for the danger to life
that the act poses.” (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) Mirroring this
language from caselaw, defendant’s jury instruction on implied malice included the
phrase “natural and probable consequences.” However, the instructions’ use of this
phrase is separate and distinct from the natural and probable consequences doctrine.
Indeed, there would be no basis to instruct the jury on the natural and probable
consequences doctrine because that doctrine is clearly inapplicable to the facts of this
case. The natural and probable consequences doctrine makes “ ‘a person who aids and
abets a confederate in the commission of a criminal act . . . liable not only for that crime
(the target crime), but also for any other offense (nontarget crime) [including murder]
committed by the confederate as a “natural and probable consequence” of the crime

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originally aided and abetted.’ [Citation.]” (People v. Johns (2020) 50 Cal.App.5th 46,
58.) Defendant was the killer. He did not aid and abet another person in the commission
of a separate, target crime. Thus, defendant could not have been prosecuted or convicted
under a natural and probable consequences theory.
DISPOSITION
The order is affirmed.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
RENNER, J.

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