People v. Harden

Filed 7/12/22; Opinion following rehearing

OPINION ON REHEARING

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078191

Plaintiff and Respondent,

v. (Super. Ct. No. SCN124346)

YOLANDA HARDEN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County,

Joan P. Weber, Judge. Affirmed.

David M. McKinney, under appointment by the Court of Appeal, for

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.

Swenson, Heather M. Clark and Alan L. Amann, Deputy Attorneys General,

for Plaintiff and Respondent.

Recent amendments to California’s homicide statutes significantly limit

the circumstances in which someone who did not actually kill the victim can

be convicted of murder. Penal Code section 1170.951 provides an avenue for

those convicted before these statutory changes became effective to receive the

benefits of the new legislation.

Invoking section 1170.95, Yolanda Harden seeks to vacate her

conviction of first degree murder. She claims now, some 20 years later, that

she was not the actual killer. But as we explain, the jury instructions and

verdicts conclusively establish—with no factfinding, weighing of evidence, or

credibility determinations—that in 2001 Harden was convicted as the actual

killer. That makes her ineligible for relief as a matter of law, despite her

contrary factual claim. Accordingly, we affirm the order summarily denying

her section 1170.95 petition. (Id., subd. (c).)

FACTUAL AND PROCEDURAL BACKGROUND

A. The Murder

In October 2000, Alfred and Marion P., then in their 80’s, lived in a

retirement community. (People v. Harden (2003) 110 Cal.App.4th 848

(Harden I).) Harden tricked her way inside on the pretext of needing to use

their telephone to call a taxi. Once inside and while Marion was asleep, she

stole jewelry and credit cards. After Harden left, Marion awakened to find

Alfred dead in the living room. He had been strangled. (Id. at pp. 851–852.)

Marion’s stolen credit card was used that day to place telephone calls to

Harden’s family members and boyfriend. (Harden I, supra, 110 Cal.App.4th

at pp. 852‒853.) Later the same day, Harden pawned Marion’s jewelry. (Id.

at p. 853.)

1 Undesignated statutory references are to the Penal Code.

2

At Harden’s trial in 2001, the People’s theory was that she entered the

home intending only to steal, but decided to kill once inside. In closing

argument, the prosecutor told the jury that the nature of Alfred’s injuries

evidenced a deliberate and premediated killing. Outside the jury’s presence,

he conceded that felony murder was the stronger of the two theories.

The court instructed the jury on murder (CALJIC No. 8.10 (6th ed.

1996)2), deliberate and premediated murder (CALJIC No. 8.20) as well as

felony murder (CALJIC No. 8.21). The court also gave a modified version of

CALJIC No. 8.80.1 (1997 rev.) on first degree murder with special

circumstances. The jury was also asked to find whether Harden “personally

inflicted great bodily injury” in committing the offenses.

The jury convicted Harden of first degree murder with special

circumstances and found that she personally inflicted great bodily injury.3

She was sentenced to life in prison without the possibility of parole, to be

served consecutively to an aggregate term of six years four months for other

convictions. (Harden I, supra, 110 Cal.App.4th at p. 855.)

B. The First 1170.95 Petition

In February 2019, Harden filed a petition to vacate her murder

conviction and for resentencing under section 1170.95.4 The trial court

denied the petition a month later without issuing an order to show cause.

Harden did not timely appeal that ruling.

2 Further references to CALJIC jury instructions are to the sixth edition

of California Jury Instructions, Criminal (1996) unless otherwise specified.

3 Other charges and convictions are stated in Harden I, supra, 110

Cal.App.4th at pages 853 to 854.

4 This petition is not in the record on appeal.

3

C. The Second 1170.95 Petition

In August 2019, Harden filed another section 1170.95 petition. Her

accompanying declaration states she “did not kill anyone in the commission

of any felony.” She claimed to have entered Alfred and Marion’s home

through an open door, saw “what looked like a man sleeping on the couch,”

and “crept in and stole various items of property.” She asked the court to

appoint counsel.

The People filed an “initial response,” primarily asserting that having

been convicted of first degree murder with “found-true” special

circumstances, Harden could not establish a prima facie case. In the reply,

defense counsel maintained that Harden’s declaration established a prima

facie case, despite being contradicted by facts recited in Harden I.

The court denied the petition without issuing an order to show cause.

Quoting several paragraphs from the factual background in Harden I, the

judge concluded that Harden’s declaration was “completely inconsistent” with

trial testimony showing “[Harden] as the killer, not anyone else.”

D. The Initial Opinion Affirming on Law-of-the-Case Grounds and

Rehearing Granted

During the pendency of this appeal, in People v. Lewis (2021) 11 Cal.5th

952 (Lewis), the Supreme Court held that a trial court “may look at the

record of conviction . . . to determine whether a petitioner has made a prima

facie case for section 1170.95 relief.” (Lewis, at p. 971.) At Harden’s counsel’s

request, we granted leave to file a supplemental brief addressing Lewis and

Senate Bill No. 775, which amended section 1170.95 effective January 1,

2022.5 (Stats. 2021, ch. 551, § 2.)

5 Because Harden’s appeal was not final by this date, she is eligible to

benefit from this remedial legislation. (See People v. Montes (2021) 71

4

After oral argument was waived, we affirmed the order denying

Harden’s petition, albeit on grounds other than those relied on by the trial

court. We noted that in Harden I, this court determined there was

insufficient evidence to sustain a finding that Harden’s role was anything

other than that of Alfred’s actual killer. We concluded this ruling was law of

the case, and thus precluded Harden from asserting otherwise at any

subsequent hearing on her section 1170.95 petition.

Following that decision, we granted Harden’s petition for rehearing and

invited additional briefing on the law-of-the-case analysis. In response,

Harden argues that law of the case cannot be invoked where there is a

“ ‘substantial difference in the evidence’ ” on retrial of the particular issue.

(See People v. Barragan (2004) 32 Cal.4th 236, 246.) Harden acknowledges

that if at a hearing under subdivision (d) of section 1170.95, the evidence

material to her role in the murder were substantially the same, then law-of-

the-case principles would compel the same legal conclusion to be drawn, i.e.,

that she was the actual killer. But if the evidence were materially different

on that issue, Harden maintains that law of the case would not apply. This is

because law of the case “controls the outcome on retrial only to the extent the

evidence is substantially the same.” (People v. Boyer (2006) 38 Cal.4th 412,

442.) Where “ ‘there is a substantial difference in the evidence to which the

[announced] principle of law is applied, . . . the [doctrine] may not be

invoked.’ ” (Barragan, at p. 246.)

At the prima facie stage of an 1170.95 proceeding, it is of course

impossible to know what the evidence will ultimately be at an evidentiary

hearing that has not yet occurred. We thus agree with Harden that prior to a

Cal.App.5th 1001, 1006‒1007.) The Attorney General does not contend

otherwise.

5

hearing under section 1170.95, subdivision (d)(3), the law-of-the-case doctrine

cannot conclusively establish disentitlement. We therefore focus on whether

other portions of the record of conviction—specifically, jury instructions given

and the verdicts returned based on them—conclusively establish the jury

convicted Harden of murder based on a finding that she was Alfred’s actual

killer.

DISCUSSION

A. The Section 1170.95 Framework

Effective January 1, 2019, Senate Bill No. 1437 amended the felony-

murder rule by adding section 189, subdivision (e). (Stats. 2018, ch. 1015,

§ 3.) It provides that a participant in the qualifying felony is liable for felony

murder only if the person: (1) was the actual killer; (2) was not the actual

killer but, with the intent to kill, acted as a direct aider and abettor; or

(3) was a major participant in the underlying felony and acted with reckless

indifference to human life. (See People v. Gentile (2020) 10 Cal.5th 830, 842.)

The Legislature also amended the natural and probable consequences

doctrine by adding subdivision (a)(3) to section 188, which states that

“[m]alice shall not be imputed to a person based solely on his or her

participation in a crime.” (§ 188, subd. (a)(3), added by Stats. 2018, ch. 1015,

§ 2.)

Under section 1170.95, a person convicted of felony murder or murder

based on the natural and probable consequences doctrine may petition the

sentencing court to vacate the conviction and be resentenced on any

remaining counts if she could not have been convicted of murder because of

these statutory changes. (See Lewis, supra, 11 Cal.5th at pp. 959–960.)

A section 1170.95 petition must show that: “(1) A complaint, information, or

indictment was filed against the petitioner that allowed the prosecution to

6

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 . . . . [,] [and] (2) The petitioner was convicted of murder . . . following a

trial . . . . [,] [and] (3) The petitioner could not presently be convicted

of murder . . . because of changes to Section 188 or 189 made effective

January 1, 2019.” (§ 1170.95, subd. (a)(1)‒(3).)

If the section 1170.95 petition contains all the required information,

including a declaration by the petitioner that she was convicted of murder

and is eligible for relief, section 1170.95, subdivision (c) requires the court to

appoint counsel to represent the petitioner, if requested; to direct the

prosecutor to file a response to the petition and permit the petitioner to file a

reply; and to determine if the petitioner has made a prima facie showing that

she is entitled to relief. (Lewis, supra, 11 Cal.5th at p. 961.) If the petitioner

has made such a showing, the trial court “shall issue an order to show cause”

and conduct an evidentiary hearing. (§ 1170.95, subds. (c) & (d).)

The prima facie inquiry under section 1170.95 is “limited.” (Lewis,

supra, 11 Cal.5th at p. 971.) 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.” ’ ” (Ibid.) “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.’ ” (Id. at p. 972.) “[T]he trial court

should not decide unresolved factual issues[ ] that involve credibility

determinations or weighing of evidence. Rather, it should decide such issues

only after issuing an order to show cause and holding an evidentiary

7

hearing.” (People v. Duchine (2021) 60 Cal.App.5th 798, 811‒812, fn.

omitted.)

Nevertheless, the court may appropriately deny a petition at the prima

facie stage if the petitioner is ineligible for relief as a matter of law. “ ‘[I]f the

record, including the court’s own documents, “contain[s] facts refuting the

allegations made in the petition,” then “the court is justified in making a

credibility determination adverse to the petitioner,” ’ ” thereby deeming the

petitioner ineligible. (Lewis, supra, 11 Cal.5th at p. 971.) For example, if the

record shows that the jury was not instructed on either the natural and

probable consequences or felony-murder doctrines, then the petitioner is

ineligible for relief as a matter of law. (People v. Daniel (2020) 57

Cal.App.5th 666, 677, review granted Feb. 24, 2021, S266336 and dism. Dec.

1, 2021.)

We independently review a trial court’s determination on whether a

petitioner has made a prima facie showing. (People v. Arias (2021) 66

Cal.App.5th 987, 999, review granted Sep. 29, 2021, S270555.) But before

doing that here, we address a procedural argument raised by the Attorney

General which if correct would dispose of the appeal.

B. The People Forfeited the Argument That Harden’s Second Petition Is

Barred by Collateral Estoppel

The Attorney General contends Harden was barred by collateral

estoppel from filing a second petition because her first one was denied on the

merits and the second raised the same claims. However, the prosecution did

not raise the issue of collateral estoppel in the trial court and has therefore

forfeited that issue. (See People v. Morales (2003) 112 Cal.App.4th 1176,

1185 [“collateral estoppel is waived if not raised in the trial court”].)

8

In any event, Harden makes claims in this second petition based on

new law (e.g., Lewis, supra, 11 Cal.5th 952 and Stats. 2021, ch. 551 (Sen. Bill

No. 775)) that did not exist when she filed her first petition. Accordingly, the

second petition would not be barred by issue preclusion. (See People v. Ruiz

(2020) 49 Cal.App.5th 1061, 1069 [collateral estoppel not applied if there has

been an intervening change in the law].)

C. Harden Cannot Establish a Prima Facie Case Because the Record of

Conviction Conclusively Establishes She Was Convicted as the Actual

Killer

We begin with the jury instructions on murder, felony murder, special

circumstances, and personal infliction of great bodily injury to determine if

they chart a path where even one juror could have convicted Harden on a

theory other than as Alfred’s actual killer.

On murder, the court instructed on malice aforethought and felony

murder with CALJIC No. 8.10, which states in part:

“Every person who unlawfully kills a human being with

malice aforethought or during the commission or attempted

commission of a robbery or burglary, is guilty of the crime

of murder . . . .”

The jury found Harden guilty of first degree murder, but was not asked

to indicate whether the basis was malice aforethought or felony murder. If

the jury found her guilty on a malice theory, Harden would be ineligible for

resentencing because section 1170.95 applies only where the murder

conviction is based on felony murder, or the natural and probable

consequences doctrine, or any other theory under which malice is imputed

based on a person’s participation in a crime. (§ 1170.95, subd. (a).) Moreover,

defendants convicted of felony murder are not eligible for relief if they were

the actual killer. Here, Harden’s jury was instructed on felony murder, but

9

not on the natural and probable consequences doctrine or any “other theory”

of imputed malice. Accordingly, the only possible basis for section 1170.95

relief is if at least one juror convicted her of felony murder on a theory other

than being the actual killer. (§ 1170.95, subd. (a)(3).) In determining if the

instructions left open that possibility, it may be helpful, although certainly

not dispositive, to start with instructions the jury was not given.

Interestingly, the prosecutor initially contemplated asking for aiding

and abetting instructions. But once all the evidence was in he decided

otherwise, noting “there’s no evidence that there was anyone in the house

other than this one intruder [Harden], not two people. There’s no evidence

there was a man in the house.”6 Thus, the jury was not instructed that it

could convict Harden as an aider and abettor, accomplice, or as a major

participant in the burglary and robbery who acted with reckless indifference

to human life.

Turning to instructions that were given to the jury—on first degree

felony murder, the court gave CALJIC No. 8.21 as follows:

“The unlawful killing of a human being, whether

intentional, unintentional or accidental, which occurs

during the commission or attempted commission of the

crimes of Robbery [sic] or burglary, is murder of the first

degree when the perpetrator had the specific intent to

commit that crime.”

For the special circumstances allegations, the court gave only a portion

of CALJIC No. 8.80.1, stating:

6 The trial court commented, “the only possible piece of evidence that

would point to more than one intruder” was testimony that near the scene “a

guy in a truck” was seen driving “with the woman [Harden]” after it

happened.”

10

“If you find the defendant in this case guilty of murder of

the first degree, you must then determine if one or more of

the following special circumstances are true or not true: [¶]

“1. That Alfred [P.] was murdered during the commission

of a robbery. [¶]

“2. That Alfred [P.] was murdered during the commission

of a burglary. [¶] . . . [¶]

“If you are satisfied beyond a reasonable doubt that the

defendant actually killed a human being, you need not find

that the defendant intended to kill in order to find the

special circumstance to be true.” (Italics added.)

With respect to the personal infliction of great bodily injury

enhancements, the court instructed with CALJIC No. 17.20 (1999 rev.):

“It is alleged in Counts 2 [robbery] 3 [burglary] and 4

[willful cruelty to elder], that in the commission or

attempted commission of the crimes therein described the

defendant [Harden] personally inflicted great bodily injury

on [Alfred P.], a person 70 years of age or older at the time

of the crime.”

In closing, the prosecutor argued that Harden alone killed the victim,

stating, “The killer of Alfred [P.] is here in court . . . and that’s the

defendant . . . . That’s the person who murdered Mr. [P].” Conversely,

defense counsel argued, “whoever that was” who strangled Alfred, it “was not

Yolanda Harden . . . . [S]he did not do it.”

The jury convicted Harden of first degree murder with special

circumstances—that is, murder “while engaged in the commission” of robbery

and burglary. It also found that “in the commission” of burglary, robbery,

and willful cruelty to an elder, she “personally inflicted great bodily injury.”

The key question in determining whether the trial court properly

denied Harden’s petition is whether it was possible for a juror to have

(1) found her guilty of felony murder, and (2) found to be true the

11

robbery/burglary special circumstances allegations, as well as the personal

infliction of great bodily injury allegations, without also finding she

personally killed the victim? (See People v. Lopez (2022) 78 Cal.App.5th 1, 14

(Lopez).) We conclude the answer is “no” and that, as instructed, no juror

could have voted to convict Harden as anything other than being the actual

killer.7

First and foremost, the jury was instructed that “every person who

unlawfully kills a human being with malice aforethought or during the

commission” of certain felonies is guilty of “murder.” (CALJIC No. 8.10,

italics added in first quote.) “This language on its face tells the jury that ‘the

person who unlawfully kills’ is guilty of murder. In common understanding,

this would refer to the person who inflicted the fatal injury.” (People v. Bell

(2020) 48 Cal.App.5th 1, 16.) The jury was instructed on no alternative

definition of murder. Thus, Harden’s murder conviction necessarily means

the jury determined she actually killed Alfred P.

Moreover, the instruction on murder was followed by CALJIC No.

8.80.1, which defines the requisite mental state for a true finding of special

circumstances. That instruction begins by stating: “If you find the defendant

in this case guilty of murder of the first degree, you must then determine if

one or more of the following special circumstances are true or not true[.]”

7 In supplemental briefing and again at oral argument, Harden’s counsel

referred to a juror declaration submitted with the motion for new trial, which

was quoted in the People’s opposition, as support for the proposition that

“[d]uring jury deliberations jurors discussed the possibility of the man in the

truck being involved in the killing.” Assuming this evidence is properly

before us on appeal, it does not assist Harden. The issue is not whether a

juror could reasonably believe someone else might also be involved or

responsible. The question at the prima facie stage of the section 1170.95

analysis is whether, as instructed, it was possible for a juror to convict

Harden of first degree felony murder as other than the actual killer.

12

Thus, the jury would not even reach the issue of special circumstances unless

it first convicted Harden of murder. And as just explained, under CALJIC

No. 8.10 a murder conviction required a finding that Harden “unlawfully

killed”—that is, she was the actual killer. A hypothetical juror who was not

persuaded that Harden actually killed Alfred P. could not have voted that the

special circumstance was true. Thus, the unanimous true finding necessarily

means the jury convicted Harden as the actual killer.8

Further, the jury found true that Harden “personally inflicted great

bodily injury” on Alfred P. The natural meaning of “personally inflicted” is

that the defendant herself inflicted the injury. (See People v. Cole (1982) 31

Cal.3d 568, 578–579 [under section 12022.7, “personally inflict” means those

who “directly perform” the act causing physical injury].) At oral argument,

Harden’s attorney noted that in addition to being strangled, Alfred also

suffered fractured ribs. Counsel asserted it was therefore possible for a juror

to find this enhancement true on a theory that Harden only fractured Alfred’s

ribs and someone else strangled him. But Harden was not charged with

assault or battery. She was tried for murder, and to find Harden guilty of

murder (as instructed under CALJIC No. 8.10), each juror must have found

that she was the actual killer. Thus, when viewing the verdicts as a whole,

the jury’s true finding that Harden personally inflicted great bodily injury

necessarily means it determined she strangled Alfred. (See People v.

8 The fourth paragraph of the CALJIC No. 8.80.1 further supports this

interpretation, telling the jury that “if you are satisfied beyond a reasonable

doubt that the defendant actually killed a human being, you need not find

that the defendant intended to kill in order to find the special circumstance to

be true.” (Id., italics added.) By negative inference, a defendant who was not

the actual killer could not be guilty of the felony murder special circumstance

unless the jury also found a specific intent to kill. In either case, Harden

would be ineligible for relief under section 1170.95.

13

Jones (2002) 30 Cal.4th 1084, 1120 [express finding that defendant

personally used firearm supports implied finding defendant was actual

killer].)9

Without weighing conflicting evidence or making credibility

determinations, the record of conviction irrefutably establishes as a matter of

law that the jury determined Harden was the actual killer. The instructions

and verdicts show the only path to convicting Harden of first degree felony

murder with special circumstances and a personal-infliction-of-great-bodily-

injury enhancement was based on a finding she actually killed Alfred P.

In urging the opposite conclusion, Harden maintains that no inferences

can be drawn from the jury’s true finding on special circumstances because

under CALJIC No. 8.80.1 as given, “the jury was not instructed as to the

felony murder theory.” We disagree. CALJIC No. 8.80.1 as given clearly

applied to felony murder because it instructed the jury regarding the

situations in which it could find the felony murder special circumstance true.

9 Citing People v. Offley (2020) 48 Cal.App.5th 588, Harden contends the

finding that she personally inflicted great bodily injury does not mean the

jury found she actually killed Alfred P. But that case involved a different

enhancement—section 12022.53, subdivision (d), for intentionally discharging

a firearm and causing the victim’s death. (Offley, at p. 592.) On appeal, the

court held that a true finding on that enhancement does not preclude relief

under section 1170.95 because it did not require that the defendant acted

with either the intent to kill or with conscious disregard for life. (Offley, at

p. 598.) Moreover, the defendant in Offley was one of five people who

participated in a gang-related shooting into an occupied vehicle. (Id. at p.

592.) Although the jury found that Offley had personally used a gun, they

might have concluded he intended only to commit an assault and if so may

have convicted of murder under the natural and probable consequences

doctrine. (Id. at p. 599.) In contrast here, the jury found Harden “personally

inflicted great bodily injury on Alfred” within the meaning of section 12022.7,

subdivision (c). As explained in the text, this necessarily means it found

Harden was the actual killer, making her ineligible for resentencing as a

matter of law.

14

And while the statute would theoretically permit a true finding in any of

three factual settings, the jury was only instructed on one—where the

defendant was the actual killer.10

After we granted rehearing, Division Three of the Fourth Appellate

District considered similar issues in Lopez, supra, 78 Cal.App.5th 1. On its

record, the Lopez court reversed an order denying an 1170.95 petition at the

prima facie stage. Before oral argument, we notified the parties to be

prepared to address the case.

Although the underlying facts in Lopez are quite different from those

here,11 the procedural history is remarkably close. As here, the defendant in

Lopez was convicted of first degree murder with special circumstances that

the murder had occurred during the commission of a robbery. (Lopez, supra,

78 Cal.App.5th at p. 4.) Moreover, like Harden, the defendant in Lopez was

prosecuted solely on the theory he was the actual killer and committed the

robbery alone. The jury in Lopez was not instructed on aiding and abetting

or any other vicarious liability theories. (Id. at p. 15.) And just as here, the

Lopez jury was not instructed on liability by virtue of being a major

participant in the underlying felony. (Ibid.) Like Harden’s case, the special

circumstances instruction was modified to eliminate all theories of liability

other than defendant having committed the underlying felony. (Id. at

pp. 15‒16.)

10 As Harden concedes, “[w]hile the jury was instructed as to the first

[actual killer] component, they were not instructed as to the other two.”

11 In Lopez, the victim was found naked, bludgeoned to death in his bed.

(Lopez, supra, 78 Cal.App.5th at p. 6.) The defendant testified that he had

been to the victim’s apartment with his “friend and drug dealer,” who he

implied was the actual killer. (Id. at p. 8.)

15

The Lopez trial was in 2011 and the court instructed using CALCRIM

instructions on murder and special circumstances. For instance, on murder

the Lopez court instructed with CALCRIM No. 520, which states as the first

element: “The defendant committed an act that caused the death of another

person.” It also instructed with CALCRIM No. 540A that to find the

defendant guilty of felony murder, the jury had to conclude that while

committing robbery, he “caused the death of another person.” (Lopez, supra,

78 Cal.App.5th at p. 25.) On the special circumstance allegation, the jury

was instructed that to find it to be true, jurors had to conclude the defendant

“did an act that caused the death of another person.” (Id. at p. 25.)

The defendant in Lopez appealed an order denying his 1170.95 petition

at the prima facie stage. In light of the jury instructions, the appellate court

concluded that by returning guilty verdicts and a true finding on the robbery-

murder special circumstance, “the jury necessarily found that the victim’s

death” was a consequence of the defendant’s act. (Lopez, supra, 78

Cal.App.5th at p. 16.) However, the court noted that a person who commits

an act causing death is not necessarily the actual killer. (Ibid.) Indeed, at

trial the defendant testified that he accompanied another person to the

victim’s apartment and never went into the bedroom where the killing

occurred. Accordingly, the Lopez court concluded that the record did not

conclusively establish that the jury found the defendant personally killed the

victim. (Id. at p. 17.)

16

We agree with that analysis, but applying the same methodology we

reach the opposite result here because at Harden’s 2001 trial, the court gave

CALJIC instructions that were materially different from the CALCRIM

instructions given in Lopez, supra, 78 Cal.App.5th 1.12 The table below

highlights these differences:

Instruction Lopez Harden

Murder The People must prove “Every person who

that: “The defendant unlawfully kills a

committed an act that human being with

caused the death of malice aforethought or

another person.” during the commission

(CALCRIM No. 520, . . . of a robbery or

boldface added; Lopez, at burglary, is guilty of

p. 17.) murder . . . .” (CALJIC

No. 8.10, boldface added.)

Felony Murder “While committing [the “The unlawful killing of a

felony], the defendant human being . . . which

caused the death of occurs during the

another person.” commission of . . . robbery

(CALCRIM No. 540A, or burglary, is murder of

boldface added; Lopez, at the first degree when the

p. 16.) perpetrator had the

specific intent to commit

that crime.” (CALJIC

No. 8.21.)

12 The California Judicial Council adopted the new CALCRIM

instructions effective January 1, 2006. (See People v. Thomas (2007) 150 Cal.

App.4th 461, 465.) Thus, the jury in Harden’s case was given the older

CALJIC instructions, while the jury in Lopez received the newer CALCRIM

version.

17

Special “To prove that this “If you are satisfied

Circumstances special circumstance is beyond a reasonable

true, the People must doubt that the defendant

prove that: [¶] . . . [¶] actually killed a

The defendant did an act human being, you need

that caused the death not find that the

of another person.” defendant intended to kill

(CALCRIM No. 730, in order to find the special

boldface added; Lopez, at circumstance to be true.”

p. 16.) (CALJIC No. 8.80.1 (1997

rev.), boldface added.)

Unlike the Lopez jury, by returning guilty verdicts on murder with

special circumstances, the jury here necessarily found that Harden “kill[ed] a

human being” (CALJIC No. 8.10) and “actually killed a human being”

(CALJIC No. 8.80.1). Unlike Lopez, the jury in this case was not asked

whether the defendant merely “committed an act that caused the death.”

(CALCRIM No. 520, italics added.) Moreover, there is no mention in Lopez of

any instructions regarding the defendant’s personal infliction of great bodily

injury. In contrast here, Harden’s jury also found that she “personally

inflicted great bodily injury.”

At oral argument, Harden’s attorney asserted there were two

instructions given here that—as in Lopez—would have allowed a juror to

convict on the grounds that she caused Alfred’s death without being the

actual killer: CALJIC Nos. 8.58 and 2.11.5. We disagree.

At trial in Harden I, there was evidence that the 80-year-old victim had

a “heart condition,” “aneurysms,” and “the family talked about how ill he

was.” Over defense objection, the court instructed with CALJIC No. 8.58 that

“If a person unlawfully inflicts a physical injury upon another person and

that injury is a cause of the latter’s death, that conduct constitutes an

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unlawful homicide . . . even if: [¶] 1. The person injured had been already

weakened by disease, injury, physical condition or other cause; or [¶] 2. It is

probable that a person in sound physical condition injured in the same way

would not have died from the injury; or [¶] 3. It is probable that the injury

only hastened the death of the injured person; or [¶] 4. The injured person

would have died soon thereafter from another cause or other causes.” Thus,

CALJIC No. 8.58 instructs that if Alfred’s preexisting medical conditions

contributed to his death, that would not relieve Harden’s culpability. The

instruction would not have permitted a juror to convict Harden on a theory

that she committed an act that contributed to causing his death, but someone

else was the actual killer.

Turning to CALJIC No. 2.11.5, it merely tells the jury not to speculate

whether someone else might or might not be prosecuted for the same crime:

“There has been evidence in this case indicating that a

person other than defendant was or may have been

involved in the crime for which the defendant is on trial.

[¶] There may be many reasons why that person is not

here on trial. Therefore, do not discuss of give any

consideration as to why the other person is not being

prosecuted in this trial or whether she has been or will be

prosecuted. Your sole duty is to decide whether the People

have proved the guild of the defendant on trial.”

The purpose of this instruction is to discourage improper conjecture.

Contrary to Harden’s contention, it does not provide the jury with a path to

convict her of felony murder on a theory other than her being the actual

killer.

In sum, although the question presented here and in Lopez is the same,

the result is different because the jury instructions were materially

dissimilar. Harden’s record of conviction conclusively establishes, with no

factfinding, weighing of evidence, or credibility determinations, that she was

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the actual killer. Harden complains that because the jury was not asked to

“expressly” find that she was the actual killer, the record of conviction does

not refute her petition as a matter of law. But given the “kills” language in

CALJIC No. 8.10, along with “actually killed” in CALJIC No. 8.80.1, and

“personally inflicted great bodily injury on Alfred [P.]” in CALJIC No. 17.20,

in returning guilty verdicts and true findings, the jury necessarily found she

actually killed Alfred P.13 The trial court, therefore, correctly denied her

petition at the prima facie stage.

13 Because the superior court’s denial of Harden’s petition was based on

large part on its reading of our Harden I decision, much of the parties’ initial

briefing focused on the appropriate use of an earlier appellate opinion in

determining whether a section 1170.95 petition states a prima facie case for

relief. In concluding that Harden’s petition was properly denied, we have

focused not on Harden I, but rather on the jury instructions and verdict.

That said, we agree with Harden that Lewis does not permit the

superior court to weigh evidence at the prima facie stage. (Lewis, supra, 11

Cal.5th at p. 972.) Without the benefit of Lewis, the trial court erred in

summarily denying Harden’s petition on the grounds there was an

irreconcilable conflict between the facts stated in Harden I and those in the

section 1170.95 petition. But although the trial court employed reasoning we

now know was faulty, its ultimate conclusion was correct. (D’Amico v. Board

of Medical Examiners (1974) 11 Cal.3d 1, 19 [“ ‘[A] ruling or decision, itself

correct in law, will not be disturbed on appeal merely because given for a

wrong reason.’ ”]; see also People v. Brooks (2017) 3 Cal.5th 1, 39 [“if the

ruling was correct on any ground, we affirm”].)

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DISPOSITION

The order is affirmed.

DATO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

IRION, J.

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