The opinion
Filed 1/12/24 P. v. Mason CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B326497
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A391401)
v.
AUGUSTA MASON,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Michael Garcia, Judge. Affirmed.
Lenore O. De Vita, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Marc A. Kohm, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________________
Augusta Mason appeals the denial of his petition for
resentencing under Penal Code1 section 1172.6 (former
§ 1170.95)2 at the prima facie stage. We conclude the superior
court correctly determined appellant is ineligible for resentencing
as a matter of law because the jury specifically found he intended
to kill or intended to aid and abet the killing. Accordingly, we
affirm.
Appellant was convicted by jury in 1984 of one count of first
degree murder (§ 187), one count of attempted murder
(§§ 664/187), and two counts of robbery (§ 211). The jury found
true the special-circumstance allegation that the murder was
committed during the commission of a robbery, which required
the jury to find appellant intended to kill or intended to aid and
abet the killing. (§ 190.2, subd. (a)(17).) The trial court
sentenced appellant to state prison for life without the possibility
of parole. (People v. Mason (May 29, 1986, B007493) [nonpub.
opn.] (Mason).)
FACTUAL3 AND PROCEDURAL BACKGROUND
In April 1983, Julius Jefferson and his next door neighbor
hired appellant to construct a wrought iron fence along their
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.)
3 The factual background is drawn from the statement of
facts in this court’s decision in the direct appeal of the judgment
of conviction. (Mason, supra, B007493.) We set forth this
background to give context to our analysis of whether the jury
instructions foreclose the existence of a prima facie case.
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property line. (Mason, supra, B007493.) Appellant appeared at
the Jefferson residence on June 5, 1983, around 10:00 p.m., and
the two men went outside to examine the location for the fence.
While they were talking, Julius heard someone approach.
Appellant assured him it was just his cousin, and the
conversation resumed. As Julius was bending over to clear some
debris from the area, he was suddenly unable to see and
experienced a “ringing” sensation. Julius heard someone say,
“We’d better hit him again.” Julius reached into his back pocket
and discovered that his wallet was missing. A second blow struck
the back of his head. (Mason, supra, B007493.)
A neighbor discovered Thelma Jefferson’s body on the back
porch. She had died as a result of massive injuries caused by a
minimum of four to five blows inflicted with a blunt instrument
to the head. Julius was hospitalized after sustaining multiple
injuries to his face and skull, including a depressed skull
fracture, fractures to both the upper and lower jaws, nose, the
bones surrounding his right eye, and the loss of most of his teeth.
(Mason, supra, B007493.)
Upon returning home from the hospital, Julius discovered
that a stereo turntable and his wife’s purse were both missing.
(Mason, supra, B007493.)
Appellant was convicted as charged, and the judgment was
affirmed on appeal. (Mason, supra, B007493.)
Appellant filed his petition for resentencing pursuant to
section 1172.6 in March 2021. The superior court appointed
(Cf. § 1172.6, subd. (d)(3) [facts set forth in appellate opinions
may not be considered during the evidentiary hearing occurring
after a prima facie case has been found to exist].)
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counsel and initially issued an order to show cause. But after
further briefing, the superior court reconsidered its ruling, and
denied the petition for failure to make a prima facie showing for
relief.
DISCUSSION
Appellant Is Ineligible for Relief as a Matter of Law
Because the Jury Found He Personally Acted
With the Intent to Kill
A. Applicable legal principles
The Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) in 2018, effectively abolishing the natural and
probable consequences doctrine in cases of murder and limiting
the application of the felony-murder doctrine. (Stats. 2018,
ch. 1015, § 1, subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis).) With one narrow exception (§ 189, subd. (f)), the
legislation effectively eliminated murder convictions premised on
any theory of imputed malice—that is, any theory by which a
person can be convicted of murder for a killing committed by
someone else, such as felony murder or the natural and probable
consequences doctrine—unless the People also prove that the
nonkiller defendant personally acted with the intent to kill or
was a major participant who acted with reckless disregard to
human life. (§§ 188, subd. (a)(3) & 189, subd. (e).)
Senate Bill No. 1437 also enacted former section 1170.95
(now § 1172.6), which established a procedure for vacating the
murder convictions of defendants who could no longer be
convicted of murder because of the amendments to sections 188
and 189. (Stats. 2018, ch. 1015, § 4; Lewis, supra, 11 Cal.5th at
pp. 957, 959, 971; People v. Gentile (2020) 10 Cal.5th 830, 843.)
Section 1172.6, subdivision (c) requires the court to appoint
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counsel when requested upon the filing of a properly pleaded
petition for resentencing. (Lewis, at pp. 963, 966.)
The superior court must then conduct a prima facie
analysis with briefing “to determine whether the petitioner has
made a prima facie case for relief.” (§ 1172.6, subd. (c); Lewis,
supra, 11 Cal.5th at p. 971; People v. Nieber (2022) 82
Cal.App.5th 458, 469–470.) In conducting this review, our
Supreme Court has held that the superior court can and should
look to the record of conviction. (Lewis, supra, 11 Cal.5th at
pp. 970–971 [“The record of conviction will necessarily inform the
trial court’s prima facie inquiry under section 1170.95, allowing
the court to distinguish petitions with potential merit from those
that are clearly meritless”].) And “[i]f the petition and record in
the case establish conclusively that the defendant is ineligible for
relief, the [superior] court may dismiss the petition.” (People v.
Strong (2022) 13 Cal.5th 698, 708 (Strong).)
We review de novo the superior court’s prima facie
determination that a petitioner is ineligible for section 1172.6
relief as a matter of law. (People v. Coley (2022) 77 Cal.App.5th
539, 545 (Coley); People v. Williams (2022) 86 Cal.App.5th 1244,
1251.)
B. The instructions required the jury to find appellant
acted with the intent to kill in order to find the robbery-
murder special circumstance true, even if appellant was
not the actual killer
1. The jury instructions
As relevant to the instant appeal, the court instructed
appellant’s jury that “[t]he crime of murder is the unlawful
killing of a human being with malice aforethought or the
unlawful killing of a human being which occurs during the
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commission of a robbery.” (CALJIC No. 8.10 (1983 rev.) italics
added.) The court charged the jury that, if it found the defendant
guilty of murder, it must determine whether it was in the first or
second degree. (CALJIC No. 8.70.) A failure to reach unanimous
agreement on this question would compel a conviction for second
degree murder. (CALJIC Nos. 8.71 (1979 rev.) & 8.74 (1976
rev.).)
The instructions included two possible theories of first
degree murder: deliberate and premeditated murder, which
required the jury to find that in addition to an intent to kill, the
defendant carefully weighed the considerations for and against
the killing in advance and decided to kill (CALJIC No. 8.20 (1979
rev.)); and felony murder, defined as “the unlawful killing of a
human being, whether intentional, unintentional or accidental,
which occurs during the commission of the crime of robbery, and
where there was in the mind of the perpetrator the specific intent
to commit such crime” (CALJIC No. 8.21). The court also
instructed that the jury could convict appellant as an aider and
abettor to felony murder if it found he intended to commit the
robbery and an accomplice in the robbery killed the victim, even
if the killing was unintentional or accidental. (CALJIC No. 8.27
(1984 rev.).)
In the aider and abettor first degree felony-murder
instruction, the court further advised the jury: “With respect to a
killing which occurs during the commission of a robbery, you will
note that an aider and abettor must have the intent or purpose of
committing, encouraging, or facilitating the commission of the
robbery. He does not have to have the intent to kill. [But] [w]ith
respect to the special circumstance allegation, an aider and
abettor must also intend to aid in the killing of a human being.”
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(CALJIC No. 8.27 (1984 rev.) italics added.) In the event the jury
convicted appellant of first degree murder, the instructions
required the jury to unanimously determine beyond a reasonable
doubt whether the robbery-murder special-circumstance
allegation was true. (CALJIC No. 8.80 (1984 rev.).) Thus, if the
jury found that “defendant was an aider and abettor but not the
actual killer, it must be proved beyond a reasonable doubt that he
intended to aid in the killing of a human being before [the jury
was] permitted to find the alleged special circumstance of that
first degree murder to be true as to defendant.” (Ibid.)
Finally, the court instructed the jury that “[t]o find that the
[robbery-murder] special circumstance, referred to in these
instructions as murder in the commission of robbery, is true, it
must be proved: [¶] 1. That the murder was committed while
the defendant was engaged in the commission of a robbery. [¶]
2. That the defendant intended to kill a human being, or
intended to aid another in the killing of a human being, and [¶]
3. That the 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.” (CALJIC No. 8.81.17
(1984 rev.).)
Appellant’s jury was not instructed on a natural and
probable consequences theory of liability.4
4 Appellant raises no claim of error based on the superior
court’s denial of relief as to his conviction for attempted murder.
Any challenge to the ruling in this regard has therefore been
forfeited. (See People v. Tran (2022) 13 Cal.5th 1169, 1214.) In
any event, the jury instruction on attempted murder required a
finding that appellant had an intent to kill in order to convict. A
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2. The jury necessarily found that appellant personally
harbored an intent to kill, and the preclusive effect of that finding
bars relief under section 1172.6 in this case
Appellant contends the superior court erred when it relied
on the special circumstance finding to deny the petition at the
prima facie stage. He asserts that the petition could properly be
denied only if the record of conviction unequivocally shows he
directly aided and abetted the murder or was a major participant
in the robbery who acted with reckless indifference to human life.
Appellant is mistaken.
Pursuant to the amendments to the felony-murder rule by
Senate Bill No. 1437, a participant in a robbery in which death
occurs is liable for murder, and thus ineligible for section 1172.6
relief, if one of the following is proved: (1) the participant was
the actual killer; (2) he or she was not the actual killer, but aided
the actual killer in the murder with the intent to kill; or (3) he or
she was a major participant in the underlying felony who acted
with reckless indifference to human life. (§ 189, subd. (e); Strong,
supra, 13 Cal.5th at p. 710.) Our Supreme Court has held that a
specific jury finding that the defendant had the intent to kill “is
petitioner is ineligible for relief if the jury instructions show that
jurors were not instructed on any theory of liability for murder
that allowed malice to be imputed to the defendant. (People v.
Cortes (2022) 75 Cal.App.5th 198, 205.) Moreover, because no
instruction allowed a conviction for attempted murder under the
natural and probable consequences doctrine or any other theory
of imputed malice, any challenge would fail. (Coley, supra, 77
Cal.App.5th at p. 548 [“Section [1172.6] applies by its terms only
to attempted murders based on the natural and probable
consequences doctrine”].)
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generally preclusive in section 1172.6 proceedings, i.e., it
‘ordinarily establish[es] a defendant’s ineligibility for
resentencing under Senate Bill [No.] 1437 and thus preclude[s]
the defendant from making a prima facie case for relief.’ ” (People
v. Curiel (2023) 15 Cal.5th 433, 453–454 (Curiel), quoting Strong,
supra, 13 Cal.5th at p. 710.) Indeed, as the high court has
observed, “it is difficult to foresee a situation in which a relevant
jury finding, embodied in a final criminal judgment, would not
meet the traditional elements of issue preclusion.” (Curiel, at
p. 454.)
A review of the complete charge to the jury in this case
reveals that before appellant’s jury could find the robbery-murder
special circumstance true, the instructions explicitly and
unambiguously required the jury to find that appellant intended
to kill a human being himself or intended to aid another in the
killing of a human being. We presume the jury understood and
followed the instructions given. (People v. Sanchez (2001) 26
Cal.4th 834, 852 [“Jurors are presumed able to understand and
correlate instructions and are further presumed to have followed
the court’s instructions”]; People v. Thomas (2023) 14 Cal.5th 327,
382.) Thus, even if appellant was not the actual killer, by finding
the special circumstance true, the jury necessarily found
appellant acted with the intent to kill. This jury finding on the
issue of appellant’s intent has preclusive effect and stands as a
bar to relief under section 1172.6 in this case. (Curiel, supra, 15
Cal.5th at pp. 453–454; Strong, supra, 13 Cal.5th at p. 710.)
In this regard, appellant’s reliance on People v. Ervin
(2021) 72 Cal.App.5th 90 (Ervin) is misplaced.
In Ervin, a jury convicted defendant of burglary, robbery,
and murder, with true findings on two felony-murder special-
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circumstance allegations. (Ervin, supra, 72 Cal.App.5th at p. 94.)
As to the murder charge, the jury rejected the allegation that
defendant personally used a firearm. (Ibid.) On appeal from the
denial of defendant’s section 1172.6 petition at the prima facie
stage, the court determined that the true finding on the special-
circumstance allegations did not make defendant ineligible for
relief as a matter of law. (Id. at p. 104.)
The jury received instructions on the pre-Senate Bill
No. 1437 felony-murder rule and felony-murder special
circumstances. (Ervin, supra, 72 Cal.App.5th at p. 107.)
However, the special-circumstance instructions contained
conditional language that was also ambiguous: “ ‘[If you find
beyond a reasonable doubt that the defendant was [either the
actual killer or an aider or abettor, but you are unable to decide
which], then you must also find beyond a reasonable doubt that
the defendant intended either to kill a human being or to aid
another in the killing of a human being in order to find the
special circumstance to be true.]’ ” (Ibid., italics omitted.) The
appellate court found the conditional wording of this instruction
permitted the jury to find the special circumstance true without
having to determine the defendant’s intent to kill as long as the
jury unanimously agreed beyond a reasonable doubt that the
defendant was an aider and abettor. (Id. at p. 108.) Moreover,
the felony-murder instruction allowed the jury to find defendant
guilty of murder based solely on his participation in the
qualifying felony without the intent or major participant findings
now required under subdivision (e) of section 189. (Ibid.) These
flaws in the instructions and resulting ambiguities in the verdict
left the appellate court in Ervin unable to conclude that the
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defendant was ineligible for relief under section 1172.6 as a
matter of law. (Ibid.)
Here, by contrast, the special-circumstance instruction was
not conditioned on the jury being unable to decide whether
appellant was the actual killer or an aider and abettor. Rather,
before the jury could find the special circumstance true, it was
required to find appellant intended to kill or intended to aid
another in the killing. Ervin is thus distinguishable and has no
application to the instant case.
C. Appellant is ineligible for resentencing as a matter of
law because aiding and abetting a robbery with the intent
to kill constitutes felony murder under section 189,
subdivision (e)(2)
Despite the jury’s finding of intent to kill, appellant
contends that he is nevertheless entitled to section 1172.6 relief
because the jury could have found that appellant aided and
abetted the robbery without finding that he committed the
requisite actus reus⎯an act that directly aided and abetted the
murder. To the contrary, the instructions and verdict reflect that
the jury found the requisite actus reus and mens rea that make
appellant ineligible for relief under section 1172.6 as a matter of
law.
Senate Bill No. 1437 “significantly limited the scope of the
felony-murder rule to effectuate the Legislature’s declared intent
‘to ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was not
a major participant in the underlying felony who acted with
reckless indifference to human life.’ ” (Strong, supra, 13 Cal.5th
at pp. 707–708.) However, the amendments to the felony-murder
rule made no change to the actus reus element of felony murder.
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In the context of aider and abettor liability for first degree felony
murder, the commission of a robbery is the actus reus for the
murder conviction. (§ 189, subd. (a) [“All murder that is . . .
committed in the perpetration of, or attempt to perpetrate, . . . ,
robbery, . . . is murder of the first degree”]; People v. Clark (2016)
63 Cal.4th 522, 615 (Clark) [“The actus reus requirement for an
aider and abettor to first degree felony murder is aiding and
abetting the underlying felony or attempted felony that results in
the murder”].) The jury’s finding that appellant aided and
abetted a robbery which resulted in a murder was sufficient to
satisfy the actus reus element of aiding and abetting a felony
murder.
Appellant’s argument was rejected in People v. Lopez (2023)
88 Cal.App.5th 566 (Lopez). There, the court found “no reason to
interpret the actus reus requirement as anything different than
what the felony-murder actus reus requirement was before
Senate Bill [No.] 1437—‘aiding and abetting the underlying
felony or attempted felony that results in the murder.’ ” (Id. at
p. 578, quoting Clark, supra, 63 Cal.4th at p. 615.) Indeed,
because the purpose of the new law was to restore
“ ‘ “proportional responsibility in the application of California’s
murder statute . . .” ’ [d]efendants who aid a qualifying felony
with an intentional plan to kill (i.e., an intent to kill) are the
exact type of offender . . . who can still be convicted of first degree
murder under the recent changes to murder liability.” (Lopez, at
p. 579.)
In People v. Pacheco (2022) 76 Cal.App.5th 118, review
granted May 18, 2022, S274102 (Pacheco), the Court of Appeal
held that a true finding on a gang murder special circumstance
12
did not necessarily preclude relief under section 1172.6. (Id. at
p. 127.) Pacheco is clearly distinguishable and thus inapposite.
The trial court in Pacheco instructed the jury it could find
the defendant guilty of murder under the natural and probable
consequences doctrine if he aided and abetted one of three target
crimes (assault with a deadly weapon, assault, or disturbing the
peace). (Pacheco, supra, 76 Cal.App.5th at p. 128, rev.gr.) As to
the gang special circumstance, the court instructed: “ ‘The
defendant is charged with the special circumstance of committing
murder while an active participant in a criminal street gang . . . .
[¶] To prove that this special circumstance is true, the People
must prove that: [¶] 1. A perpetrator intentionally killed [the
victim]; [¶] 2. At the time of the killing, the defendant was an
active participant in a criminal street gang; [¶] 3. The defendant
knew that members of the gang engage in or have engaged in a
pattern of criminal gang activity; [¶] 4. The murder was carried
out to further the activities of the criminal street gang; [¶] AND
[¶] 5. The defendant had the intent to kill at the time of the
killing.’ ” (Id. at pp. 127–128.)
Based on these instructions, the Court of Appeal
determined that “the jury could have potentially found Pacheco
intended to kill [the victim] under the gang special circumstance
enhancement (the mens rea), but under the natural and probable
consequence theory, Pacheco only actually aided and abetted the
nontarget crime of disturbing the peace (the actus reus).”
(Pacheco, supra, 76 Cal.App.5th at p. 128, rev.gr.) The court
went on to conclude, “at least at the prima facie stage, Pacheco’s
gang special circumstance enhancement does not establish as a
matter of law that Pacheco . . . both ‘had the requisite intent’ (the
mens rea), and he ‘engaged in the requisite acts’ (the actus reus),
13
to prove he directly aided and abetted the target crime of
murder.” (Ibid.)
Pacheco has no application to the instant case for the
simple reason that appellant’s jury was not instructed on the
natural and probable consequences doctrine. (See Lopez, supra,
88 Cal.App.5th at p. 577, fn. 8 [“Because this case does not turn
on the trial court’s use of the natural and probable consequences
instruction, Lopez’s reliance on [Pacheco] is misplaced”].) As the
Lopez court explained, because “[s]ection 189, subdivision (a)
defines ‘murder in the first degree’ as any murder that is
‘committed in the perpetration of, or attempt to perpetrate [a
qualifying felony],’ ” under the terms of the statute, “assisting a
qualifying felony in which a death occurs is the same as assisting
the actual killer in committing first degree murder, and vice
versa.” (Id. at p. 578.) Unlike Pacheco, by finding appellant was
engaged in the commission or attempted commission of a
qualifying felony in which a death occurred with an intent to kill,
appellant’s jury plainly found the elements⎯actus reus and mens
rea⎯necessary to establish guilt under the current felony-murder
rule. The jury’s specific findings in this case thus establish
appellant’s ineligibility for relief under section 1172.6 as a matter
of law.
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DISPOSITION
The order denying appellant’s petition for resentencing
under Penal Code section 1172.6 is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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