101 Cal.App.5th 860
Cal. Ct. App.2024Background
- Diana Lovejoy was convicted in 2017 of conspiring with Weldon McDavid to murder her ex-husband, Greg Mulvihill, and of premeditated attempted murder.
- The attack involved Lovejoy assisting McDavid, a former Marine firearms instructor, who shot and wounded Mulvihill with a sniper rifle.
- After her conviction, California enacted Senate Bill 1437 and Senate Bill 775, narrowing criminal liability for murder and attempted murder based on the natural and probable consequences doctrine.
- Lovejoy petitioned for resentencing under Penal Code section 1172.6, arguing her convictions might have been based on now-invalid imputed malice theories.
- The Superior Court denied her petition without an evidentiary hearing, finding she failed to make a prima facie case for relief.
- Lovejoy appealed, arguing she was entitled to relief in light of changes to the law.
Issues
| Issue | Lovejoy’s Argument | State’s Argument | Held |
|---|---|---|---|
| Eligibility for resentencing on attempted murder | Lovejoy could not be convicted under current law because jury may have relied on a natural and probable consequences theory | The record shows the jury necessarily found intent to kill due to the conspiracy conviction | Denied; the jury’s conspiracy to murder conviction required intent to kill, foreclosing §1172.6 relief |
| Eligibility for resentencing on conspiracy to commit murder | Jury may have convicted based on McDavid’s imputed malice, not her own intent | Statute does not cover conspiracy to commit murder and the conviction necessarily required her own intent to kill | Denied; §1172.6 does not apply to conspiracy to commit murder |
| Applicability of natural and probable consequences instruction | Conspiracy instructions allowed conviction without finding personal intent to kill | Jury was correctly instructed and convicted on direct intent to kill | No possibility of conviction based on impermissible theory when object was murder |
| Timing of intent finding necessary for conviction | Jury may not have found intent at time of the shooting | Conspiracy liability under California law continues until object achieved or withdrawn; no evidence Lovejoy withdrew | Intent at time of conspiracy’s formation suffices; no withdrawal instructed or shown |
Key Cases Cited
- People v. Beck and Cruz, 8 Cal.5th 548 (conspiracy to commit murder conviction necessarily includes intent to kill, making reliance on natural and probable consequences doctrine irrelevant)
- People v. Swain, 12 Cal.4th 593 (conviction of conspiracy to commit murder requires intent to kill)
- People v. Croy, 41 Cal.3d 1 (conspiracy conviction alone does not always establish necessary intent for substantive offense, but does not apply when intent is express as in murder conspiracy)