The opinion
Filed 11/25/24 P. v. Brown CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F087728
Plaintiff and Respondent,
(Super. Ct. No. CR-23-010292)
v.
ROBERT SCOTT BROWN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Stanislaus County. Carrie M.
Stephens, Judge.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Hill, P. J., Meehan, J. and DeSantos, J.
INTRODUCTION
In 1992, appellant and defendant Robert Scott Brown (appellant) was convicted
after a jury trial of first degree murder with a special circumstance, and robbery. He was
sentenced to life in prison without possibility of parole.
In 2024, the trial court denied appellant’s petition for resentencing filed pursuant
to Penal Code1 section 1172.6, for failing to state a prima facie case for relief.
On appeal, appellate counsel filed a brief which summarized the facts and
procedural history with citations to the record, raised no issues, and asked this court to
independently review the record pursuant to People v. Delgadillo (2022) 14 Cal.5th 216.
Appellant filed a supplemental brief. We address his contentions, independently review
the record, find the trial court’s conclusions are supported by substantial evidence, and
affirm the denial of his petition.
PROCEDURAL BACKGROUND2
As will be explained, appellant had three jury trials. His convictions from the
first and second trials were reversed for legal errors. After his third trial, he was
convicted of murder with a special circumstance, and robbery, and sentenced to life
without parole.
1 All further statutory citations are to the Penal Code.
2 In support of the opposition to appellant’s petition for resentencing, the People filed this
court’s prior opinions in appellant’s appeals from his convictions in his first, second, and
third jury trials: People v. Brown (1991) 226 Cal.App.3d 1361 (Brown I); People v. Brown
(July 21, 1991, F013833) [nonpub. opn.] (Brown II); and People v. Brown (June 14, 1993,
F017595) [nonpub. opn.] (Brown III). The following procedural summary is from these prior
opinions and the appellate record in the instant case.
In reviewing a section 1172.6 petition, the court may rely on “the procedural history of
the case recited in any prior appellate opinion.” (§ 1172.6, subd. (d)(3); see People v. Clements
(2002) 75 Cal.App.5th 276, 292; People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9.) The
role of the appellate opinion is limited, however, and the court may not rely on factual
summaries contained in prior appellate decisions or engage in fact finding at the prima facie
stage. (Clements, at p. 292; People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis).) To the extent
we have quoted the facts from appellant’s trials, we have done so to place his current arguments
in context, and not to make any factual findings or resolve factual disputes.
2.
Appellant’s First Jury Trial
On April 4, 1989, an information was filed in the Superior Court of Stanislaus
County case No. 241613, charging appellant with committing the following offenses on
November 8, 1988:
Count 1, murder with malice aforethought of Thomas Owen (§ 187, subd. (a)),
with the special circumstance that the murder was committed while appellant, with the
intent to kill, was in engaged in and an accomplice in the commission, and the flight
thereafter, of robbery (§ 190.2, former subd. (a)(17)(i)).3
Count 2, conspiracy to commit robbery (§§ 182, 211) with three overt acts:
Pamela Anderson drove appellant and George Salter to the victim’s location for the
purpose of robbing him, Salter obtained the bat normally kept at the 11th Street Lounge
and took it with him to the scene of the crime; and appellant shared in the proceeds of the
robbery; and
Count 3, robbery (§ 211).4
3 At the time that appellant was charged, section 190.2 defined the robbery special
circumstance in former subdivision (a)(17)(i): “The murder was committed while the defendant
was engaged in or was an accomplice in the commission of, attempted commission of, or the
immediate flight after committing or attempting to commit the following felonies. [¶]
(i) Robbery in violation of Section 211.” (Added by Initiative Measure Prop. 7, § 6, approved
Nov. 7, 1978, eff. Nov. 8, 1978; amended by Stats. 1989, ch. 1165, § 16, p. 4468; amended by
Initiative Measure Prop. 114, § 17, approved June 5, 1990, eff. June 6, 1990; amended by
Initiative Measure Prop. 115, § 17, approved June 5, 1990, eff. June 6, 1990.)
Effective in 1996, section 190.2 was amended to redesignate the robbery special
circumstance as subdivision (a)(17)(A). (Stats. 1995, ch. 477, § 1, p. 3354, added by Prop. 195,
§ 1, approved Mar. 26, 1996, eff. Mar. 27, 1996; Stats. 1995, ch. 478, § 2, p. 3561; amended by
Initiative Measure Prop. 196, § 1, approved Mar. 26, 1996, eff. Mar. 27, 1996).) It currently
states: “The murder was committed while the defendant was engaged in, or was an accomplice
in, the commission of, attempted commission of, or the immediate flight after committing, or
attempting to commit, the following felonies: [¶] (A) Robbery in violation of Section 211 or
212.5.”
4 As to the other named parties, “Anderson … was charged and testified pursuant to an
agreement with the prosecution under which she was permitted to plead guilty to robbery and
voluntary manslaughter. Salter was charged and tried separately. His convictions for conspiracy
to commit robbery, robbery and murder were affirmed on appeal; the murder conviction was
3.
As to all counts, it was further alleged that appellant personally used a deadly
weapon, a knife, in the commission of the offenses (§ 12022, subd. (b)). (Brown I, supra,
226 Cal.App.3d at p. 1363; Brown II, supra, F013833, p. 2.)
In July 1989, appellant was convicted of count 2, conspiracy to commit robbery,
and count 3, robbery. The jury was unable to reach a verdict on count 1, murder.
(Brown I, supra, 226 Cal.App.3d at p. 1363; Brown II, supra, F013833, p. 2.)
As to his conviction in count 2, conspiracy, the jury found only one overt act was
true—that appellant shared in the proceeds of the robbery. (Brown I, supra, 226
Cal.App.3d at p. 1367 & fn. 2.)
As to his convictions in counts 2 and 3, the jury found the allegation that he
personally used a deadly weapon, a knife, not true. (Brown I, supra, 226 Cal.App.3d at
p. 1363; Brown II, supra, F013833, p. 2.)
The court sentenced appellant to five years for count 3, robbery, and stayed the
term for count 2, conspiracy, pursuant to section 654.
Appellant filed an appeal from the conspiracy and robbery convictions in his
first jury trial. (Brown I, supra, 226 Cal.App.3d 1361.)
Appellant’s Second Jury Trial
On December 5, 1989, while his appeal from the first trial was pending before this
court, appellant’s second jury trial began for count 1, murder with the robbery special
circumstance, and the enhancement that he personally used a deadly weapon, a knife.
(Brown II, supra, F013833, pp. 2, 14; Brown III, supra, F017595, p. 2.)
As explained above, the jury in appellant’s first trial found he did not personally
use a deadly weapon, a knife, in the commission of the conspiracy and robbery. “As a
result of the first jury’s findings, the jury in the second trial was specifically instructed
that it had to find [appellant] conspired to rob and did rob [the victim], but that
reduced to second degree and the case remanded for resentencing.” (Brown II, supra, F013833,
p. 10.)
4.
[appellant] did not use the knife in either the conspiracy or the robbery. The court also
instructed the jury to disregard any testimony or argument suggesting that [appellant]
murdered the victim with a knife during the robbery or the conspiracy. The court told the
jury it could find [appellant] guilty of murder during the robbery on the theory that he
aided or abetted the actual killer or guilty of personally murdering the victim after the
robbery had been completed.” (Brown II, supra, F013833, pp. 2–3, 11.)
On January 11, 1990, the jury found appellant guilty of count 1, “murder in the
first degree (as an aider and abettor)” with the robbery special circumstance found true.
“Consistent with the court’s instruction, and the first jury’s finding that [appellant] did not
personally use the knife in the course of the robbery, the jury found [appellant] did not
personally use a deadly or dangerous weapon in the commission of the murder.” (Brown
II, supra, F013833, p. 3.)
On April 11, 1990, the trial court sentenced appellant to life without possibility of
parole for first degree murder with the special circumstance, to be served consecutively to
the determinate term of five years already imposed at his first trial for robbery.
Appellant filed an appeal from the judgment in his second jury trial. (Brown II,
supra, F013833.)
APPELLANT’S FIRST APPEAL (BROWN I)
On January 16, 1991, this court filed the opinion in appellant’s appeal from his
first jury trial for his convictions for count 2, conspiracy, and count 3, robbery. (Brown I,
supra, 226 Cal.App.3d 1361.)
We reversed appellant’s conviction in count 2 for conspiracy to commit robbery,
“because the sole overt act found by the jury occurred after completion of the
conspiracy’s objective, robbery.” (Brown I, supra, 226 Cal.App.3d at p. 1363.)
We also reversed his conviction in count 3 for robbery, and agreed with appellant
that the robbery conviction “was predicated solely on membership in the conspiracy, and
5.
that invalidity of the conspiracy finding infect[ed] the robbery verdict requiring reversal.”
(Brown I, supra, 226 Cal.App.3d at pp. 1370–1371.)
APPELLANT’S SECOND APPEAL (BROWN II)
On July 21, 1991, this court filed the nonpublished opinion in Brown II,
appellant’s appeal from his conviction after the second jury trial for first degree murder
with the special circumstance. (Brown II, supra, F013833.)
We noted that our opinion in Brown I, that reversed his convictions from his
first trial for conspiracy and robbery, was filed two days before appellant’s reply brief in
the second appeal was filed with this court. (Brown II, supra, F013833, p. 3.)
“Shortly thereafter, the Attorney General moved for a summary reversal (in light
of the reversal of the underlying findings the second jury was instructed to abide by) so
that the murder, conspiracy and robbery counts could be retried in the same proceeding.
[¶] [Appellant] agreed to summary reversal of all issues raised in the instant appeal with
the exception of his contention there was insufficient evidence to support the only theory
of murder (aiding and abetting) and of special circumstance (murder in the course of the
robbery). [Appellant] maintains that if successful on these points, under the double
jeopardy clauses of the federal and state Constitutions, he cannot be retried after reversal.
[Citations.] Thus, the challenge to the sufficiency of the evidence on those points is all
that remains to be resolved here.” (Brown II, supra, F013833, pp. 3–4.)
Brown II held there was substantial evidence to support the prosecution theory that
appellant was guilty as an aider and abettor who acted with the intent to rob and the intent
to kill, for both murder and the special circumstance. (Brown II, supra, F013833, pp. 17–
19.) We reversed the judgment and remanded for further proceedings.
APPELLANT’S THIRD TRIAL
Appellant’s petition for resentencing is from the murder conviction that resulted
from his third jury trial.
6.
On February 18, 1992, as a result of Brown II, a second amended information was
filed that charged appellant with count 1, murder, with the special circumstance that the
murder was committed while appellant, with the intent to kill, was engaged in and was an
accomplice in the commission, and flight thereafter, of robbery (§ 190.2, former
subd. (a)(17)(i)); and count 2, robbery.
The conspiracy charge was not alleged in the second amended information.
(Brown III, supra, F017595, p. 3.)
As to count 1, murder, the second amended information alleged appellant
personally used a deadly weapon, a knife. (§ 12022, subd. (b).) Prior to appellant’s
third jury trial, however, on appellant’s motion and after reviewing the decisions in
Brown I and Brown II, the trial court dismissed the personal use enhancement. (Brown
III, supra, F017595, p. 3.)
Instructions
At appellant’s third trial, the jury was instructed with CALJIC No. 3.00, defining
principals and aiders and abettors.
CALJIC No. 3.01 defined direct aiding and abetting: “A person aids and abets the
commission or attempted commission of a crime when he or she [¶] with knowledge of
the unlawful purpose of the perpetrator [¶] with the intent or purpose of committing,
encouraging, or facilitating the commission of the crime, by act or advice, aids, promotes,
encourages or instigates the commission of the crime.…”
CALJIC No. 3.10 stated that an accomplice is a person subject to prosecution for
the identical offense charged in counts 1 and 2 against the defendant on trial by reason of
aiding and abetting or being a member of a criminal conspiracy.
CALJIC No. 3.14 stated: “Merely assenting to or aiding or assisting in the
commission of a crime without knowledge of the unlawful purpose of the perpetrator and
without the intent or purpose of committing, encouraging or facilitating the commission
of the crime is not criminal. Thus a person who assents to, or aids, or assists in, the
7.
commission of a crime without such knowledge and without such intent or purpose is not
an accomplice in the commission of such crime.”
CALJIC No. 8.10 stated: “Every person who unlawfully kills a human being with
malice aforethought or during the commission or attempted commission of Robbery is
guilty of the crime of murder .…” The elements were that a human being was killed, the
killing was unlawful, and the killing occurred during the commission or attempted
commission of robbery.
CALJIC No. 8.11 defined express and implied malice. CALJIC No. 8.20 defined
willful, deliberate, and premeditated murder as first degree murder.
CALJIC No. 8.81.17 defined the elements of the special circumstance, murder in
the commission of a robbery: “[t]he murder was committed while the defendant was
engaged in the commission or attempted commission of a Robbery,” and “[t]he murder
was committed in order to carry out or advance the commission of the crime of Robbery
or to facilitate the escape therefrom or to avoid detection. In other words, the special
circumstance referred to in these instructions is not established if the Robbery was merely
incidental to the commission of the murder.”
The jury was not instructed on the natural and probable consequences doctrine,
conspiracy, or any other theory of imputed malice.
Verdict and Sentence
On February 27, 1992, the jury found appellant guilty of count 1, murder, and the
offense was first degree murder, “to wit: The intentional, unintentional or accidental
killing of a human being during the commission or attempted commission of a Robbery.”
The jury also found true the special circumstance in a special verdict form:
“[T]hat during the commission of said murder, [appellant], did have or form the intent to
kill, while he was engaged in and was an accomplice to the commission of a felony, to
wit, Robbery, in violation of Section 211 … as specified in … Section 190.2[,
subdivision] (a)(17)(i) and that he did aid and abet in the murder of [the victim].”
8.
Appellant was also convicted of count 2, robbery.
On March 26, 1992, the trial court sentenced appellant to life without possibility
of parole for murder with the special circumstance.
APPELLANT’S THIRD APPEAL (BROWN III)
On June 14, 1993, this court filed the nonpublished opinion in Brown III that
affirmed the judgment after his third jury trial. (Brown III, supra, F017595, p. 18.)
Appellant argued the third trial was barred by principles of double jeopardy based
on the procedural history of the case and the findings by the prior juries in his first and
second trials. We rejected this argument because we already rejected the same double
jeopardy claim in Brown II, where we found sufficient evidence to support the
prosecution theories and decided retrial on the murder and robbery charges with special
circumstance allegations was permissible. (Brown III, supra, F017595, p. 7.)
Appellant also argued the trial court should have instructed the jury on issue
preclusion, that it could not find appellant stabbed the victim given the jury’s findings in
the first trial, even though the evidence on the stabbing had been excluded from the trial.
We agreed the instruction should have been given but found the error was harmless
beyond a reasonable doubt. (Brown III, supra, F017595, pp. 8–9.)
“The trial court fully instructed on the aiding and abetting and
felony-murder theories. The jury was told the distinction between one who
actively commits a crime and one who assists in the crime. The jury was
also told that while the evidence showed someone else was involved in the
crimes, the jurors were not to consider the other person’s fate….
“The argument of counsel clearly informed the jury the prosecution
was proceeding on two theories, 1) that [the victim] was murdered during a
robbery of which [appellant] was a participant, and 2) that [appellant] aided
and abetted the actual killer. Nothing in the instructions or the arguments
could lead the jury to believe that they might find [appellant] guilty on
another, unstated, theory
“The jury’s verdict confirms that they understood that the
prosecution’s case rested on the felony-murder and aiding and abetting
9.
theories. The jury found [appellant] guilty of murder during the course of a
robbery and specifically found [appellant] aided and abetted in the murder
with a specific intent to do so. This last finding is enlightening because the
jury was erroneously given an unmodified version of CALJIC No. 8.80.
(Respondent concedes it was error to give CALJIC No. 8.80 without
striking the language which explains how the jury must act if they find
[appellant] was the actual killer rather than an aider and abettor .…) The
instruction asked the jury to make a specific finding of intent only if it
found [appellant] was an aider and abettor. This express finding by the
jury is inconsistent with the contention that the jury may have impliedly
found [appellant] was the actual perpetrator of the murder.
“The jury’s findings established beyond a reasonable doubt that
[appellant] participated in the robbery, that [the victim] was stabbed and
killed during the commission of the robbery, and that [appellant]
participated in the crime with the intent to rob and the intent to kill.
Therefore, given the jury’s findings, the overwhelming evidence, and the
instructions given, we can say beyond a reasonable doubt the failure to
instruct the jury that they could not find [appellant] personally stabbed [the
victim] was harmless. [Appellant] would have been convicted as an aider
and abettor and/or under the felony-murder doctrine even had the requested
instruction been given.” (Brown III, supra, F017595, pp. 10–11,
fn. omitted, first and second italics in original, third italics added.)
We also held there was substantial evidence to support the jury’s finding that he
aided and abetted the murder with the intent to kill, and rejected appellant’s other
contentions. (Brown III, supra, F017595, pp. 11–18.)
PETITION FOR RESENTENCING
On December 15, 2022, appellant filed, in propria persona, the instant petition for
resentencing of his first degree murder conviction pursuant to section 1172.6, and
requested appointment of counsel. Appellant filed a supporting declaration that consisted
of a preprinted form where he checked boxes that (1) he was eligible for resentencing
because a complaint, information, or indictment was filed that allowed the prosecution to
proceed under a theory of felony murder, 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, or attempted murder under the natural and
10.
probable consequences doctrine; (2) he was convicted of murder, attempted murder, or
manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could
have been convicted of murder or attempted murder; and (3) he could not presently be
convicted of murder or attempted murder because of changes made to sections 188 and
189, effective January 1, 2019.
The trial court appointed counsel and set a hearing on the prima facie issue.
The People’s Opposition
The prosecution filed opposition and argued appellant was ineligible for
resentencing because the instructions and verdict showed he was convicted as an aider
and abettor who acted with the intent to kill.
The prosecution filed supporting exhibits consisting of the second amended
information, the verdicts from appellant’s third trial in February 1992, the instructions
given at appellant’s third trial, the abstract of judgment from his third trial, and this
court’s opinions in appellant’s first, second, and third appeals.
The prosecution argued the jury was not instructed on the natural and probable
consequences doctrine or imputed malice, the instructions showed appellant was
convicted as an aider and abettor who acted with the intent to kill, and he was ineligible
for resentencing.
Appellant’s Reply
Appellant’s reply argued his petition established a prima facie case because the
jury previously found the personal use enhancement was not true, that finding precluded
relitigation about appellant’s alleged use of the knife, and it also meant that the jury did
not find he was the actual perpetrator or acted with the intent to kill. Appellant argued
the trial court would have to make factual findings to reach that conclusion, and it should
instead issue an order to show cause and conduct an evidentiary hearing.
In support of his reply, appellant filed an instruction that was given at his third trial
that stated appellant was charged with count 1, murder, committed while appellant, “with
11.
the intent to kill was engaged in and was an accomplice in the commission, and the flight
thereafter of the felony, to wit, Robbery, in violation of Section 211 …; as specified in …
Section 190.2[, subdivision] (a)(17)(i). [¶] During the commission of said Murder,
[appellant] personally used a deadly and dangerous weapon, to wit, a knife, in violation
of Section 12022[, subdivision] (d)” and he pleaded not guilty to the charge.5
Appellant also filed the verdict form from his second jury trial, where the jury
found him guilty of first degree murder and that the personal use enhancement was not
true.
The Prima Facie Hearing
On March 8, 2024, the trial court held the prima facie hearing on appellant’s
petition.
Appellant’s counsel argued the petition presented a close case because the jury
previously found appellant did not personally use a deadly or dangerous weapon, and the
victim died of knife wounds, and the trial court could not make any factual findings for
the prima facie issue.
The prosecutor replied that appellant was tried several times, and the jury in his
first trial found appellant did not use a knife. The prosecutor argued the jury’s prior
finding only meant that appellant was not convicted as the actual killer. At the third trial,
the jury found appellant acted with the intent to kill, and that verdict precluded relief
under section 1172.6.
THE TRIAL COURT’S DENIAL OF THE PETITION
The trial court stated that it could not make any factual or credibility findings for
the prima facie determination from the prior appellate opinions, but it could consider the
5 As previously noted, the People filed a second amended information before appellant’s
third trial, and it alleged as to count 1, murder, that he personally used a deadly weapon, a knife.
Prior to the third jury trial, on appellant’s motion and after reviewing the decisions in Brown I
and Brown II, the trial court dismissed the personal use enhancement, and the allegation was
stricken by interlineation in the second amended information. (Brown III, supra, F017595, p. 3.)
12.
record of conviction which included the charging documents, abstract of judgment, jury
instructions, and verdict forms. The court relied on the prior opinions only for the
procedural summaries of the case. The court made lengthy findings and denied the
petition:
“From independent portions of the record of conviction, and as
outlined by the Court of Appeal’s decision, the Court understands that the
jury found [appellant] participated in the robbery; and that the victim was
stabbed and killed during the commission of the robbery. The jury found
[appellant] aided and abetted another in the murder of the victim. The jury
found [appellant] participated in the crime with the intent to rob and the
intent to kill.
“The argument of counsel on the instructions as a whole clearly
inform the jury the prosecution was proceeding on two theories. [F]irst,
that the victim was murdered during the course of a robbery of which
[appellant] was a participant. That’s the felony murder rule that’s no longer
allowed. And, second, that [appellant] aided and abetted the actual killing.
“The jury verdict confirms they understood that the prosecution’s
case rested on the felony murder and, separately, aiding and abetting theory.
The jury found [appellant] guilty of murder during the course of a robbery;
and specifically found [appellant] aided and abetted in the murder with a
specific intent to do so.
“The instructions asked the jury to make a specific finding of intent
only if it found [appellant] was an aider and abettor.
“In the Court’s record of proceedings, and as explained in the Court
of Appeal decision, the jury was not instructed on imputed malice or
vicarious liability.
“[Appellant] was convicted of first-degree murder. And the jury
made a specific finding that he acted with the intent to kill, and aided and
abetted in the murder of the victim .… There’s plenty of ways to aid and
abet without the use of a knife.
“[Appellant] was convicted of first-degree murder as an aider and
abettor who acted with the intent to kill. This is still a viable theory of
murder. And [appellant], as a matter of law, contrary to his claims in the
petition, could still be convicted of murder under the present law.
13.
Therefore, [appellant] has not made a prima facie showing that he is
entitled to relief.”
On March 8, 2024, appellant filed a notice of appeal from the trial court’s order
that denied his petition for resentencing.
DISCUSSION
As noted above, appellate counsel filed a brief with this court pursuant to
Delgadillo. The brief also included counsel’s declaration that appellant was advised he
could file his own brief with this court. This court sent appellant an order that, pursuant
to Delgadillo, the appeal would be dismissed as abandoned if he failed to submit a letter
brief within 30 days. Appellant timely filed a letter brief with this court in response to
our Delgadillo order, challenging the trial court’s denial of his petition.
I. Section 1172.6
We begin with the relevant statutes and amendments. Senate Bill No. 1437 (2017–
2018 Reg. Sess.) (Senate Bill 1437) became effective in 2019, and “altered the
substantive law of murder in two areas. First, with certain exceptions, it narrowed the
application of the felony-murder rule by adding section 189, subdivision (e) .… Under
that provision, ‘A participant in the perpetration or attempted perpetration of a [specified
felony] in which a death occurs is liable for murder only if one of the following is
proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the commission of murder in the
first degree. [¶] (3) The person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in subdivision (d) of
Section 190.2.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 448 (Curiel), italics added.)
“Second, Senate Bill 1437 imposed a new requirement that, except in cases of
felony murder, ‘a principal in a crime shall act with malice aforethought’ to be convicted
of murder. [Citation.] ‘Malice shall not be imputed to a person based solely on his or her
14.
participation in a crime.’ [Citation.] One effect of this requirement was to eliminate
liability for murder as an aider and abettor under the natural and probable consequences
doctrine. [Citation.] ‘[U]nder the natural and probable consequences doctrine, an
accomplice is guilty not only of the offense he or she directly aided or abetted (i.e., the
target offense), but also of any other offense committed by the direct perpetrator that was
the “natural and probable consequence” of the crime the accomplice aided and abetted
(i.e., the nontarget offense). [Citation.] A nontarget offense is the natural and probable
consequence of a target offense “if, judged objectively, the [nontarget] offense was
reasonably foreseeable.” [Citation.] The accomplice need not actually foresee the
nontarget offense. “Rather, liability ‘ “is measured by whether a reasonable person in the
defendant’s position would have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and abetted.” ’ ” ’ [Citation.] Thus,
under prior law, a defendant who aided and abetted an intended assault could be liable for
murder, if the murder was the natural and probable consequence of the intended assault.
[Citation.] The defendant need not have intended the murder or even subjectively
appreciated the natural and probable consequences of the intended crime. [Citation.]
Senate Bill 1437 ended this form of liability for murder.” (Curiel, supra, 15 Cal.5th at
p. 449.)
“Senate Bill … 1437 also added … former section 1170.95, now renumbered as
section 1172.6. This created a procedural mechanism for those convicted under the
former law to seek retroactive relief.” (People v. Reyes (2023) 97 Cal.App.5th 292, 295;
Curiel, supra, 15 Cal.5th at p. 449.)
When a petition for resentencing is filed, the trial court shall appoint counsel if
requested by petitioner. (§ 1172.6, subd. (b)(3).) After counsel is appointed and the
parties have had an opportunity to submit briefing, “the court shall hold a hearing to
determine whether the petitioner has made a prima facie case for relief. If the petitioner
15.
makes a prima facie showing that the petitioner is entitled to relief, the court shall issue
an order to show cause.” (§ 1172.6, subd. (c).)
In making the prima facie determination, a petitioner is ineligible for resentencing
“as a matter of law if the record of conviction conclusively establishes, with no
factfinding, weighing of evidence, or credibility determinations,” that the petitioner could
still be convicted after the amendments to sections 188 and 189. (People v. Lopez (2022)
78 Cal.App.5th 1, 13–14.) “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, supra, 11 Cal.5th at
p. 972.) The record of conviction includes the charging documents, jury instructions,
closing arguments, and verdicts. (People v. Flores (2023) 96 Cal.App.5th 1164, 1170;
People v. Harden (2022) 81 Cal.App.5th 45, 50, 54–55; People v. Lopez, supra, 78
Cal.App.5th at pp. 13–14; People v. Jenkins (2021) 70 Cal.App.5th 924, 935.)
“Appellate opinions … are generally considered to be part of the record of
conviction. [Citation.] However …, the probative value of an appellate opinion is case
specific, and ‘it is certainly correct that an appellate opinion might not supply all
answers.’ [Citation.] 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.’ [Citation.] … [T]he ‘prima facie bar was
intentionally and correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 972.)
“At the prima facie stage, a court must accept as true a petitioner’s allegation that
he or she could not currently be convicted of a homicide offense because of changes to
section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the
record. [Citation.] And this allegation is not refuted by the record unless the record
conclusively establishes every element of the offense. If only one element of the offense
is established by the record, the petitioner could still be correct that he or she could not
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currently be convicted of the relevant offense based on the absence of other elements.”
(Curiel, supra, 15 Cal.5th at p. 463.)
“ ‘If the petition and record in the case establish conclusively that the defendant is
ineligible for relief, the trial court may dismiss the petition. [Citations.] If, instead, the
defendant has made a prima facie showing of entitlement to relief, “the court shall issue
an order to show cause.” [Citation.]’ ” (Curiel, supra, 15 Cal.5th at p. 450.)
We independently review the trial court’s denial of a section 1172.6 petition for
failing to state a prima facie case. (People v. Bratton (2023) 95 Cal.App.5th 1100, 1113.)
II. Appellant’s Contentions
In his letter brief, appellant contends that the jury’s finding of intent to kill at his
third trial is insufficient under the Supreme Court’s decision in Curiel to conclude he was
ineligible for resentencing as a matter of law.
Appellant also argues that since Curiel was decided before the hearing on his
section 1172.6 petition, his attorney was prejudicially ineffective for failing to raise
Curiel and object to the trial court’s denial of his petition.6
III. Direct Aiding and Abetting
“In general, to establish liability for murder under the theory of direct aiding and
abetting, ‘the prosecution must show that the defendant aided or encouraged the
commission of the murder with knowledge of the unlawful purpose of the perpetrator and
with the intent or purpose of committing, encouraging, or facilitating its commission.’ ”
(Curiel, supra, 15 Cal.5th at pp. 466–467.) “[T]he requisite mens rea for direct aiding
and abetting [is] ‘knowledge of the direct perpetrator’s unlawful intent and an intent to
assist in achieving those unlawful ends.’ [Citation.] In other words, the aider and abettor
must have ‘knowledge of the unlawful purpose of the perpetrator’ and ‘the intent or
6 Curiel was filed on November 27, 2023. (Curiel, supra, 15 Cal.5th 433.) The trial
court’s hearing on appellant’s petition was held on March 8, 2024.
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purpose of committing, encouraging, or facilitating’ the commission of the offense.” (Id.
at p. 468.)
“It is well settled that Senate Bill 1437 ‘does not eliminate direct aiding and
abetting liability for murder because a direct aider and abettor to murder must possess
malice aforethought.’ ” (People v. Williams (2022) 86 Cal.App.5th 1244, 1252.) “After
the enactment of Senate Bill 1437, a defendant cannot be convicted of murder based on
the doctrine of natural and probable consequences, even with a showing of malice
aforethought. [Citation.] It is an invalid theory. Murder liability requires a different,
valid theory, such as direct aiding and abetting.” (Curiel, supra, 15 Cal.5th at p. 462.)
IV. Curiel
In Curiel, the defendant was convicted in 2006 of first degree murder, and the jury
found the gang-murder special circumstance true. The jury instructions identified
defendant’s accomplice as the alleged actual perpetrator of the murder. The gang-murder
special circumstance instruction required the jury to find the defendant had the specific
intent to kill the victim. (Curiel, supra, 15 Cal.5th at pp. 440–441, 445–446.)
The defendant in Curiel was not prosecuted under the felony-murder rule, and the
jury was not instructed on that theory. (Curiel, supra, 15 Cal.5th at p. 464.) It was
instructed on direct aiding and abetting. It was also instructed on aiding and abetting
based on the natural and probable consequences doctrine; the target offenses were
identified as disturbing the peace and carrying a concealed firearm by a gang member,
and the jury was instructed on the elements of those offenses. The jury was also
instructed on conspiracy liability for murder based on those target crimes. (Id. at
pp. 445–447.)
The trial court denied defendant’s section 1172.6 petition for resentencing because
the jury was required to find he had the intent to kill for the gang-murder special
circumstance. (Curiel, supra, 15 Cal.5th at pp. 440, 447.)
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Curiel explained that while the jury found the defendant guilty of first degree
murder with the special circumstance, “it was not required to identify which theory it
found persuasive.” (Curiel, supra, 15 Cal.5th at p. 467, italics added.) Curiel held the
trial court’s ruling on the petition for resentencing was erroneous because the instructions
showed the jury “could have relied on the natural and probable consequences doctrine to
convict [the defendant] of murder, and the findings required under that theory—even
when combined with the finding of intent to kill required by the gang-murder special
circumstance—do not encompass all of the elements of any theory of murder under
current law.” (Id. at p. 471.)
Curiel further held the amendments to section 188 enacted by Senate Bill 1437
“did not simply ‘add the element of malice aforethought’ to existing theories of murder
liability. [Citation.] It eliminated the doctrine of natural and probable consequences in
its entirety: ‘By limiting murder liability to those principals who personally acted with
malice aforethought, section 188[, subdivision] (a)(3) eliminates what was the core
feature of natural and probable consequences murder liability: the absence of a
requirement that the defendant personally possess malice aforethought….’ ” (Curiel,
supra, 15 Cal.5th at p. 462.) As a result, “a defendant cannot be convicted of murder
based on the doctrine of natural and probable consequences, even with a showing of
malice aforethought. [Citation.] It is an invalid theory. Murder liability requires a
different, valid theory, such as direct aiding and abetting.” (Ibid.)
“Because the jury was instructed on the natural and probable consequences
doctrine, the jury was required to find only that [the defendant] knew that
[the direct perpetrator] intended to commit one of the underlying target
offenses [disturbing the peace or carrying a concealed firearm by a gang
member] and that [the defendant] intended to aid him in that offense, not
murder. Nor was the jury required to find that the underlying target
offenses, themselves, were dangerous to human life. While the jury
separately found [the defendant] intended to kill, such an intent standing
alone is insufficient to establish the requisite mens rea for aiding and
abetting murder…. Although intent to kill is certainly blameworthy, it is
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insufficient standing alone to render a person culpable for another’s acts.
The aider and abettor must know the direct perpetrator intends to commit
the murder or life-endangering act and intend to aid the direct perpetrator in
its commission. It is this mental relationship to the perpetrator’s acts that
confers liability on the aider and abettor.” (Curiel, supra, 15 Cal.5th at
p. 468.)
Curiel concluded that since the jury was instructed on the natural and probable
consequences doctrine, the finding that defendant had the intent to kill for the special
circumstance “ ‘shed[s] no light on whether [the defendant] actually encouraged or
assisted the perpetrator in carrying out the murder,’ ” as required for direct aiding and
abetting. (Curiel, supra, 15 Cal.5th at p. 468.) Curiel reversed and remanded for an
evidentiary hearing, but cautioned that its holding was limited to the jury instructions
given in that specific case and did not “necessarily apply to other cases where the jury
found intent to kill, or even other cases where the jury found true the gang-murder special
circumstance.” (Id. at p. 471.)
V. Analysis
Curiel does not support appellant’s arguments that he was entitled to an
evidentiary hearing on his petition for resentencing. Curiel involved a different special
circumstance finding under different theories of murder under current law. As Curiel
explained, the presence of the natural and probable consequences instructions in that case
showed that the jury may have convicted defendant under that now-invalid theory of
imputed malice, for the intent to kill findings did not mean that his petition for
resentencing was invalid as a matter of law. (Curiel, supra, 15 Cal.5th at p. 462.)
As explained above, Senate Bill 1437 did not eliminate the felony-murder rule, as
it did with the natural and probable consequences doctrine, but instead amended
section 189, subdivision (e) to provide that a participant in the perpetration or attempted
perpetration of an enumerated felony was liable for murder if “[t]he person was not the
actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced,
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solicited, requested, or assisted the actual killer in the commission of murder in the
first degree.” (§ 189, subd. (e)(2), italics added.)
As anticipated in Curiel, the jury in this case made precisely the same findings it
would have been required to make in order to convict appellant of felony murder under
the current law. The record conclusively establishes the jury was not instructed on the
natural and probable consequences doctrine. The jury was instructed on direct aiding and
abetting, and returned the special verdict finding that appellant was guilty of first degree
murder in the commission of the robbery because he had both the intent to rob and the
intent to kill.
We thus find the trial court correctly concluded appellant was ineligible for
resentencing as a matter of law. We further reject appellant’s ineffective assistance claim
because an attorney is not ineffective for failing to raise meritless objections or motions.
(People v. Lucero (2000) 23 Cal.4th 692, 732.)
DISPOSITION
The court’s order of March 8, 2024, denying appellant’s petition for resentencing,
is affirmed.
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