The opinion
Filed 11/6/24 P. v. Sistrunk CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B331842
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA033442-01)
v.
THADDEUS SISTRUNK,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Laura R. Walton, Judge. Affirmed.
Nancy Gaynor, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Heidi Salerno, Deputy Attorney General,
for Plaintiff and Respondent.
INTRODUCTION
In April 1996 a jury convicted Thaddeus Sistrunk on
three counts of attempted premeditated murder and found true
two firearm allegations. After we affirmed the convictions on
direct appeal and directed the trial court to resentence Sistrunk,
the court sentenced him to three concurrent life terms, each with
a minimum parole eligibility of 14 years, plus terms for various
enhancements.
In May 2022 Sistrunk petitioned the superior court to
resentence him under Penal Code section 1170.951 (now
section 1172.6). The superior court appointed counsel for
Sistrunk, ordered the parties to submit briefs, and held a
hearing. The court ruled Sistrunk was ineligible for resentencing
as a matter of law and denied the petition without issuing an
order to show cause.
The superior court did not err. Section 1172.6 authorizes
the court to resentence a defendant on a conviction for attempted
murder only when the defendant was convicted of “attempted
murder under the natural and probable consequences doctrine.”
(§ 1172.6, subd. (a).) The jury in Sistrunk’s trial did not convict
him of attempted murder under the natural and probable
consequences doctrine because the trial court did not instruct the
jury on that theory. In addition, the jury found true allegations
Sistrunk committed the attempted murders willfully,
deliberately, and with premeditation, findings that render
Sistrunk ineligible for resentencing under section 1172.6 as a
matter of law. Therefore, we affirm.
1 Statutory references are to the Penal Code.
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FACTUAL AND PROCEDURAL BACKGROUND
A. Sistrunk and a Codefendant Attempt To Kill
Three People
One afternoon in March 1995 Roy Parker and Michael
Johnson went to visit Nicole Stone at Stone’s apartment. As
Parker and Johnson entered the apartment, Stone’s mother
looked out the apartment window and saw Sistrunk in a park
across the street. Parker, Johnson, Stone, and Stone’s one-and-a-
half-year-old daughter left the apartment 45 minutes later. As
they walked toward Parker’s car, 10 to 20 gunshots came from
two locations in the park. No one was injured in the attack.
Parker and Stone later identified Sistrunk as one of the shooters.
Stone saw codefendant Marvin Crosby on the sidewalk next to
the park during the attack, pointing a gun at her. (People v.
Sistrunk (Oct. 21, 1998, B103999) [nonpub. opn.].)
A jury convicted Sistrunk on three counts of attempted
willful, deliberate, and premeditated murder (§§ 187, subd. (a),
664, subd. (a)) and for each count found true allegations that
Sistrunk personally used a firearm (§ 12022.5, subd. (a)) and that
a principal was armed with a firearm (§ 12022, subd. (a)(1)).
Sistrunk appealed. We affirmed his conviction and directed the
trial court to resentence him. (People v. Sistrunk, supra,
B103999.) On remand the trial court sentenced Sistrunk on his
attempted murder convictions to three concurrent terms of life in
prison with a minimum parole eligibility of 14 years (seven years
doubled under the three strikes law), plus the upper term of
10 years for each firearm enhancement under section 12022.5,
subdivision (a). The court also imposed a term of five years for a
prior serious felony enhancement under section 667,
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subdivision (a). The court stayed under section 654 imposition of
the enhancements under section 12022, subdivision (a)(1).
B. Sistrunk Petitions for Resentencing Under
Section 1172.6
In May 2022 Sistrunk filed a petition for resentencing
under section 1172.6. The superior court appointed counsel for
Sistrunk, and the parties submitted briefs. The People argued
that Sistrunk was prosecuted as a principal on the attempted
murder counts, that the jury was not instructed on the natural
and probable consequences doctrine, and that the jury, by finding
the attempted murders were willful, deliberate and
premeditated, found Sistrunk acted with malice and had the
intent to kill. The People submitted the jury instructions given
at Sistrunk’s trial, the jury’s verdicts, and our unpublished
opinion in Sistrunk’s direct appeal. Sistrunk argued he had
demonstrated a prima facie case of eligibility for relief under
section 1172.6.
At the hearing, the superior court stated it had reviewed
the entire file, including the information, the jury instructions,
and our opinion in Sistrunk’s direct appeal. The court stated that
the jury instructions reflected the People argued Sistrunk was
the actual shooter or an aider and abettor and that the verdict
forms reflected the jury found Sistrunk acted with malice and
personally used a firearm in the commission of the attempted
murders. The court ruled Sistrunk was ineligible for relief under
section 1172.6 as a matter of law and denied the petition.
Sistrunk timely appealed.
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DISCUSSION
A. Applicable Law and Standard of Review
Effective 2019, the Legislature substantially modified the
law governing accomplice liability for murder by eliminating the
natural and probable consequences doctrine as a basis for finding
a person guilty of murder and significantly narrowing the
felony-murder exception to the malice requirement for murder.
(People v. Arellano (2024) 16 Cal.5th 457, 467-468 (Arellano);
People v. Curiel (2023) 15 Cal.5th 433, 449 (Curiel); see People v.
Strong (2022) 13 Cal.5th 698, 707-708 [felony murder]; People v.
Gentile (2020) 10 Cal.5th 830, 842-843 [natural and probable
consequences].) Section 188, subdivision (a)(3), now prohibits
imputing malice based solely on a person’s participation in a
crime and requires proof of malice to convict a principal of
murder, except under the revised felony-murder rule. (§§ 188,
subd. (a)(3), 189, subd. (e); Arellano, at pp. 467-468; Curiel, at
p. 449.) Effective 2022, the Legislature amended section 1172.6
to apply to persons convicted of “attempted murder under the
natural and probable consequences doctrine.” (§ 1172.6,
subd. (a); see People v. Delgadillo (2022) 14 Cal.5th 216, 223,
fn. 3; People v. Rodriguez (2024) 103 Cal.App.5th 451, 457.)
Section 1172.6 authorizes a person convicted of felony
murder, murder based on the natural and probable consequences
doctrine, or (as Sistrunk alleges here) attempted murder under
the natural and probable consequences doctrine, to petition the
superior court to vacate the defendant’s conviction and to
resentence the defendant on any remaining counts if he or she
could not now be convicted of murder or attempted murder
because of the legislative changes to the definitions of murder.
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(See Arellano, supra, 16 Cal.5th at pp. 468-469; Curiel, supra,
15 Cal.5th at pp. 449-450.) If a section 1172.6 petition contains
all the required information, the court must appoint counsel to
represent the petitioner if requested. (§ 1172.6, subd. (b)(1)(A),
(b)(3); People v. Lewis (2021) 11 Cal.5th 952, 962-963 (Lewis);
People v. Foley (2023) 97 Cal.App.5th 653, 659.) The People must
then file a response to the petition, the petitioner may file a
reply, and the court must hold a hearing to determine whether
the petitioner has made a prima facie showing he or she is
entitled to relief. (§ 1172.6, subd. (c).)
In deciding whether a petitioner has made a prima facie
showing for relief under section 1172.6, “‘“the court takes
petitioner’s factual allegations as true and makes a preliminary
assessment regarding whether the petitioner would be entitled to
relief if his or her factual allegations were proved. If so, the court
must issue an order to show cause.”’” (Lewis, supra, 11 Cal.5th at
p. 971; see Curiel, supra, 15 Cal.5th at pp. 463-464.) The court
may consider the record of conviction, which will “necessarily
inform the trial court’s prima facie inquiry under section [1172.6],
allowing the court to distinguish petitions with potential merit
from those that are clearly meritless.” (Lewis, at p. 971; see
Curiel, at pp. 463-464.) “In reviewing any part of the record of
conviction at this preliminary juncture, a trial court should not
engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’” (Lewis, at p. 972; see People v. Gallardo
(2024 105 Cal.App.5th 296, 301.) “‘If the petition and record in
the case establish conclusively that the defendant is ineligible for
relief, the trial court may dismiss the petition. [Citation.] If,
instead, the defendant has made a prima facie showing of
entitlement to relief, “the court shall issue an order to show
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cause.” (§ 1172.6, subd. (c).)’” (Arellano, supra, 16 Cal.5th at
p. 469.) We review de novo an order denying a petition under
section 1172.6 without issuing an order to show cause. (People v.
Flores (2023) 96 Cal.App.5th 1164, 1170; People v. Bodely (2023)
95 Cal.App.5th 1193, 1200.)
B. The Superior Court Did Not Err in Denying
Sistrunk’s Petition Under Section 1172.6 Because He
Is Ineligible for Relief as a Matter of Law
A defendant convicted of attempted murder is eligible for
relief under section 1172.6 only if he or she is convicted “under
the natural and probable consequences doctrine.” (§ 1172.6,
subd. (a); see People v. Rodriguez, supra, 103 Cal.App.5th at
p. 457 [section 1172.6 “applies ‘only to attempted murders based
on the natural and probable consequences doctrine’”]; People v.
Lovejoy (2024) 101 Cal.App.5th 860, 865 [same]; People v. Coley
(2022) 77 Cal.App.5th 539, 548 [same].) The record of conviction,
which includes the jury instructions and jury verdicts from
Sistrunk’s trial, conclusively established the jury did not convict
Sistrunk under the natural and probable consequences doctrine.
(See Curiel, supra, 15 Cal.5th at p. 465 [“we may look to the
jury’s verdicts, and the factual findings they necessarily reflect,
to determine whether the record of conviction refutes the factual
allegations in [the defendant’s] petition”]; People v. Gallardo,
supra, 105 Cal.App.5th at p. 301 [record of conviction includes
the jury instructions and verdict forms from the defendant’s jury
trial]; People v. Nguyen (2024) 103 Cal.App.5th 668, 677
[“In making the prima facie determination, the court may rely on
the record of conviction, including the jury instructions and
verdict forms.”].)
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The trial court did not instruct the jury on the natural and
probable consequences doctrine. The court instructed the jury
with CALJIC No. 8.66, which told the jury the People had to
prove two elements to convict Sistrunk attempted murder:
(1) a “direct but ineffectual act was done by one person towards
killing another human being” and (2) the “person committing
such act harbored express malice aforethought, namely, a specific
intent to kill unlawfully another human being.” The court also
instructed the jury that “acts of a person who intends to kill
another person will constitute an attempt where those acts
clearly indicate a certain, unambiguous intent to kill.” And the
court instructed the jury with CALJIC No. 3.00 that the “persons
concerned in the [commission] of a crime who are regarded by law
as principals in the crime thus [committed] and equally guilty
thereof include: [¶] 1. Those who directly and actively [commit]
the act constituting the crime, or [¶] 2. Those who aid and abet
the [commission] of the crime.” These instructions told the jury
that it could convict Sistrunk as the direct perpetrator of the
attempted murders or as an aider and abettor. Neither theory
qualifies for relief under section 1172.6. (See, e.g., People v.
Coley, supra, 77 Cal.App.5th at p. 548 [defendant was ineligible
for relief under section 1172.6 as a matter of law where he was
convicted of attempted murder, the trial court instructed the jury
on direct perpetrator and aider and abettor liability, and the trial
court did not instruct the jury on the natural and probable
consequences doctrine].)
Similarly, the verdict forms asked the jury to decide
whether the attempted murders were willful, deliberate, and
premeditated. The jury found the allegation true for all
three counts. Taken together with the instructions on attempted
8
murder, the verdicts establish that the jury found Sistrunk acted
with the specific intent to kill each of the three victims. (See
People v. Mumin (2023) 15 Cal.5th 176, 190 [“To elevate that
offense to murder in the first degree on a malice theory, the
defendant must act with a specific intent to kill that is formed
willfully, deliberately, and with premeditation.”]; People v.
Jurado (2006) 38 Cal.4th 72, 123 [a finding of premeditation and
deliberation necessarily includes a finding the defendant had the
specific intent to kill]; see also People v. Gaines (2023)
93 Cal.App.5th 91, 131 [“‘“[a]ttempted murder requires the
specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing”’”].)
Recognizing he is not entitled to relief under the language
of section 1172.6, Sistrunk asks us to rewrite the statute to apply
to additional categories of attempted murder. That we cannot do.
(Michael G. v. Superior Court (2023) 14 Cal.5th 609, 635; see
People v. Harris (2006) 145 Cal.App.4th 1456, 1465 [“‘We are not
authorized to insert qualifying provisions not included, and may
not rewrite the statute to conform to an assumed intention which
does not appear from its language.’”]; People v. Arendtsz (2016)
247 Cal.App.4th 613, 619 [we cannot rewrite a statute “to
conform to defendant’s notion of what the Legislature would want
it to say”].)
“The proper interpretation of a statute is a question of law
we review de novo. [Citations.] ‘‘“As in any case involving
statutory interpretation, our fundamental task here is to
determine the Legislature’s intent so as to effectuate the law’s
purpose. [Citation.] We begin by examining the statute’s words,
giving them a plain and commonsense meaning.”’”’ [Citation.]
‘“[W]e look to ‘the entire substance of the statute . . . in order to
9
determine the scope and purpose of the provision . . . . [Citation.]’
[Citation.] That is, we construe the words in question “‘in
context, keeping in mind the nature and obvious purpose of the
statute . . . .”’” (Lewis, supra, 11 Cal.5th at p. 961.) “‘“‘“‘If the
statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.’”’”’”
(People v. Walker (2024) 16 Cal.5th 1024, 1032.)
As originally enacted, the predecessor to section 1172.6
applied to any “person convicted of felony murder or murder
under a natural and probable consequences theory . . . .”
(Former § 1170.95, added by Stats. 2018, ch. 1015, § 4.) The
Legislature amended the statute to apply to any “person
convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural and
probable consequences doctrine, or manslaughter . . . .” (Former
§ 1170.95, as amended by Stats. 2021, ch. 551, § 2, italics added.)
Relying on selected excerpts of legislative history, Sistrunk
argues that, contrary to the language of the statute, the
Legislature did not intend to limit section 1172.6 to “attempted
murder under the natural and probable consequences doctrine,”
but instead intended the amended statute to apply to “attempted
murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based
solely on their participation in a crime.” Sistrunk characterizes
the omission as a “scrivener’s error.”
The plain language of section 1172.6 states that only a
defendant convicted of attempted murder under the natural and
10
probable consequences doctrine is eligible for resentencing. That
is what and all the statute says: “attempted murder under the
natural and probable consequences doctrine.” The statutory
language is not ambiguous, nor is it reasonably susceptible to
Sistrunk’s proposed construction. (See People v. Canty (2004)
32 Cal.4th 1266, 1276 [“If the language is clear and
unambiguous, we follow the plain meaning of the measure.”];
People v. Johnson (2002) 28 Cal.4th 240, 244 [“If the plain
language of the statute is clear and unambiguous, our inquiry
ends, and we need not embark on judicial construction.”]; People
v. Burke (2023) 89 Cal.App.5th 237, 243 [where “the statutory
language is clear and unambiguous, we follow its plain meaning
and do not consider the legislative history”].) The Legislature’s
decision to include the language “or any other theory under which
malice is imputed to a person” for murder, but not for attempted
murder, confirms that, for defendants convicted of attempted
murder, eligibility for resentencing under section 1172.6 is
limited to defendants convicted of attempted murder under the
natural and probable consequences doctrine. (See People v.
Bland (2002) 28 Cal.4th 313, 337 [“‘“‘when the Legislature has
carefully employed a term in one place and has excluded it in
another, it should not be implied where excluded’”’”]; People v.
Trevino (2001) 26 Cal.4th 237, 242 [“When the Legislature uses
materially different language in statutory provisions addressing
the same subject or related subjects, the normal inference is that
the Legislature intended a difference in meaning.”]; People v.
Kelly (2024) 105 Cal.App.5th 162, 172 [Legislature’s use of
different wording to describe actus reus in section 189,
subdivision (e)(2) and (3), is “significant”].)
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Finally, even under Sistrunk’s proposed interpretation of
section 1172.6, he is ineligible for relief. The jury found Sistrunk
acted with express malice and had the intent to kill, making him
ineligible for resentencing under any interpretation of “attempted
murder” in section 1172.6, subdivision (a).
DISPOSITION
The order denying the petition for resentencing is affirmed.
SEGAL, J.
We concur:
MARTINEZ, P. J.
STONE, J.
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