The opinion
Filed 11/26/25 P. v. Stewart 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sacramento)
----
THE PEOPLE, C100640
Plaintiff and Respondent, (Super. Ct. No. 07F08378)
v.
TOUSAUN STEWART,
Defendant and Appellant.
In 2008, a jury found defendant Tousaun Stewart1 guilty of one count of first
degree murder and three counts of attempted murder. In 2023, defendant petitioned the
1 In this appeal following the denial of a resentencing petition, defendant’s name on
the abstract of judgment is “Tousaun Davonn Stewart.” Defendant’s petition, the order
denying his petition, and the notice of appeal identify him as “Tousaun Stewart.” We use
the latter name in this opinion.
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trial court for resentencing under Penal Code2 section 1172.6,3 and the trial court denied
the petition because, in part, defendant did not qualify for resentencing as a matter of law.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, a jury found defendant guilty of one count of first degree murder and
three counts of attempted murder. The jury also found defendant committed the crimes
for the benefit of a criminal street gang and that a principal was either armed with or
discharged a firearm during the commission of the offenses.
Defendant’s jury was instructed on aiding and abetting generally, as follows: “A
person may be guilty of a crime in two ways. One, he or she may have directly
committed the crime. I will call that person the perpetrator. Two, he or she may have
aided and abetted a perpetrator, who directly committed the crime. A person is equally
guilty of the crime whether he or she committed it personally or aided and abetted the
perpetrator who committed it. [¶] Under some specific circumstances, if the evidence
establishes aiding and abetting of one crime, a person may also be found guilty of other
crimes that occurred during the commission of the first crime.”
The jury was then instructed on aiding and abetting of intended crimes, in relevant
part, as follows: “To prove that the defendant is guilty of a crime based on aiding and
abetting that crime, the [prosecution] must prove that: [¶] 1. The perpetrator committed
the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime;
[¶] 3. Before or during the commission of the crime, the defendant intended to aid and
2 Further undesignated section references are to the Penal Code.
3 Effective June 30, 2022, former section 1170.95 was recodified without
substantive change to section 1172.6. (Stats. 2022, ch. 58, § 10.) Defendant filed his
petition under former section 1170.95, but we refer to the current section 1172.6
throughout this opinion.
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abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant’s words or
conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone
aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or
she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or
instigate the perpetrator’s commission of that crime.”
The jury was then instructed that murder was a type of homicide and about murder
with malice aforethought, where the jury was charged that, to find defendant guilty of
murder, it had to find defendant aided and abetted an act causing death and held the
mental state of either express or implied malice. To find defendant guilty of first degree
murder, the jury was instructed it must find defendant acted with the intent to kill and
with premeditation and deliberation.
As for attempted murder, the jury was instructed that it had to find defendant aided
or abetted in the direct, but ineffectual step, toward killing another person and that
defendant held the intent to kill. The jury was also instructed with the “kill zone” theory
that permitted the jury to find defendant held the intent to kill the attempted murder
victims if it found defendant intended to kill the intended victim and intended to kill
either the attempted murder victims or anyone within the kill zone.
In February 2023, defendant petitioned for resentencing under section 1172.6.
The trial court denied the petition, finding the petition was successive and procedurally
barred by a 2020 denial of defendant’s prior section 1172.6 petition. The court further
found defendant was ineligible for relief as a matter of law.
Defendant appeals.
DISCUSSION
Defendant raises multiple claims regarding the denial of his petition for
resentencing, including that the trial court erred by finding his petition successive and by
improperly weighing factual assertions from our opinion in defendant’s direct appeal.
We do not need to address these claims because defendant is not entitled to an
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evidentiary hearing under section 1172.6 as a matter of law, rendering his other claims
irrelevant.
I
Applicable Law
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, §§ 1-4)
(Senate Bill 1437) eliminated the natural and probable consequences doctrine as a basis
for finding a defendant guilty of murder and limited the scope of the felony-murder rule.
(People v. Strong (2022) 13 Cal.5th 698, 707-708; People v. Lewis (2021) 11 Cal.5th
952, 957.) The bill amended section 188, requiring that 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 [or their] participation in a crime.” (§ 188, subd. (a)(3),
as amended by Stats. 2018, ch. 1015, § 2.) Senate Bill 1437 also amended section 189,
subdivision (e) so that a person may now be convicted of felony murder only under
limited circumstances. A principal in a murder may still be criminally liable, even as an
aider and abettor, if he, she, or they personally possesses malice aforethought, whether
express or implied. (People v. Silva (2023) 87 Cal.App.5th 632, 639-640; People v.
Offley (2020) 48 Cal.App.5th 588, 595-596 [Sen. Bill 1437 did not “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’ ”].)
Senate Bill 1437 also created “a procedural mechanism for those previously
convicted of murder under a theory amended in [Senate Bill 1437] to petition for
resentencing.” (People v. Emanuel (2025) 17 Cal.5th 867, 880; see People v. Lewis,
supra, 11 Cal.5th at p. 959.) “The process begins with the filing of a petition that
declares, among other things, that ‘[t]he petitioner could not presently be convicted of
murder . . . because of changes to [s]ection 188 or 189 made effective January 1, 2019,’
the effective date of Senate Bill No. 1437. (§ 1172.6, subd. (a)(3); see id.,
subd. (b)(1)(A).)” (Emanuel, at p. 880.) Senate Bill No. 775 (2021-2022 Reg. Sess.)
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subsequently extended resentencing relief to any person convicted of murder based on
any “other theory under which malice is imputed to a person based solely on that
person’s participation in a crime” and “attempted murder under the natural and probable
consequences doctrine.” (§ 1172.6, subd. (a); see Stats. 2021, ch. 551, §§ 1-2.)
At the prima facie stage, “ ‘ “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 [or their] factual allegations were proved.” ’ ” (People v. Lewis, supra,
11 Cal.5th at p. 971.) A court may not reject the petitioner’s allegations “ ‘on credibility
grounds’ ” or “engage in ‘factfinding involving the weighing of evidence or the exercise
of discretion.’ ” (Id. at pp. 971, 972.)
“If the trial court determines that the petitioner has made a prima facie case for
relief, it ‘shall issue an order to show cause.’ (§ 1172.6, subd. (c).)” (People v. Emanuel,
supra, 17 Cal.5th at p. 880.) However, “ ‘[i]f the petition and record in the case establish
conclusively that the [petitioner] is ineligible for relief, the trial court may dismiss the
petition.’ ” (People v. Antonelli (2025) 17 Cal.5th 719, 724.) As our high court has
“repeatedly said, ‘[t]he record of conviction will necessarily inform the trial court’s prima
facie inquiry . . . , allowing the court to distinguish petitions with potential merit from
those that are clearly meritless.’ ” (Id. at p. 731.) “We independently review the trial
court’s determination that the petitioner failed to make a prima facie showing for relief.”
(People v. Ramos (2024) 103 Cal.App.5th 460, 465.)
II
Defendant Is Not Entitled To Resentencing As A Matter Of Law
As defendant acknowledges, the jury was not instructed on the felony-murder
doctrine. Thus, defendant is eligible for resentencing under section 1172.6 only if the
jury could have convicted pursuant to a theory under which malice was imputed to him
based solely on his participation in a crime. (§ 1172.6, subd. (a).) Defendant points to
the jury instructions detailed ante to argue the jury could have imputed implied malice to
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him under an aider and abettor theory of murder similar to that discussed in People v.
Langi (2022) 73 Cal.App.5th 972 and People v. Powell (2021) 63 Cal.App.5th 689. We
disagree because the jury found defendant guilty of first degree murder, meaning it found
he intended to kill the murder victim and acted with premeditation and deliberation.
Because the jury found defendant acted with express malice, i.e., held the intent to kill,
his intent was not imputed for the first degree murder conviction. (See People v. Silva,
supra, 87 Cal.App.5th at pp. 639-640; People v. Offley, supra, 48 Cal.App.5th at pp. 595-
596.)
As to the attempted murder convictions, defendant argues the instruction regarding
the kill zone theory of intent made it such that he could have been convicted under an
imputed malice theory. Defendant explains that, since his trial, the kill zone theory has
been judicially undermined by cases emphasizing the instruction’s permission to impute
malice from the intended victim to victims the defendant intends to merely harm.
Beyond quoting the jury instruction given in his case, defendant does not explain how it
was infirm or permitted the offensive inferences he argues case law warns against. Given
the lack of development, the issue is subject to appellate forfeiture. (Public Employment
Relations Bd. v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927, 939 [“ ‘ “We
are not bound to develop [the] appellants’ arguments for them” ’ ”].)
Regardless, the instruction given here did not contain ambiguous language
permitting the jury to impute malice from the intended victim to those within a zone of
harm. The kill zone instruction in defendant’s trial required the jury to find defendant
“intended to kill [the intended target], but also either intended to kill [the attempted
murder victims], or intended to kill anyone in the kill zone. If [the jury had] reasonable
doubt whether the defendant intended to kill [the attempted murder victims and intended
target] by harming everyone in the kill zone, then [it] must find the defendant not guilty
of the attempted murder.” (Italics added.) This language guarded against the
impermissible inferences that defendant’s intent to harm could equate to an intent to kill
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or be imputed from one victim to another. Accordingly, we conclude the kill zone
instruction did not permit the jury to convict defendant of attempted murder on a theory
of imputed malice.
Citing People v. Curiel (2023) 15 Cal.5th 433 to challenge the murder and
attempted murder convictions, defendant argues the record does not demonstrate a valid
theory of murder consisting of a mens rea and corresponding actus reus. (Id. at p. 463
[the record of conviction must establish the jury made all of the findings necessary to
support a conviction for murder or attempted murder under current law].) Not so.
As to the murder, the jury instructions required the jury to find, in addition to an
intent to kill, “[t]he perpetrator committed an act, that the defendant aided and abetted,
that caused the death of another person.” (See § 187; People v. Nunez (2023)
97 Cal.App.5th 362, 368 [“ ‘First degree murder is an unlawful killing with malice
aforethought, premeditation, and deliberation’ ”].) As to the attempted murder, the jury
was required to find, in addition to an intent to kill, “[t]he perpetrator took direct but
ineffective steps, that the defendant aided and abetted, toward killing another person.”
(See §§ 187, 664; see People v. Mejia (2012) 211 Cal.App.4th 586, 605 [“Attempted
murder requires (1) a specific intent to kill and (2) a direct but ineffectual act toward
accomplishing the intended killing”].) The jury’s findings fulfill the elements for still
valid theories for murder and attempted murder. (See People v. Silva, supra,
87 Cal.App.5th at pp. 639-640 [direct aiders and abettors are liable under current law for
murder and attempted murder if they personally possess malice aforethought]; accord,
People v. Offley, supra, 48 Cal.App.5th at pp. 595-596.) Accordingly, defendant is not
entitled to resentencing under section 1172.6 as a matter of law.
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DISPOSITION
The order denying defendant’s petition for resentencing is affirmed.
/s/
ROBIE, J.
We concur:
/s/
HULL, Acting P. J.
/s/
FEINBERG, J.
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