[1] All further statutory references will be to the Penal Code.
[1] Thomas is apparently also known as Marquise Thompson, and was charged under both names. Our prior opinion identified him as Thompson because that was the name used in the original trial court proceedings. The trial court proceedings we review here used the name Thomas, and we follow suit.
[1] Bhushan and Jones were tried together; Thomas’s case was severed and tried separately, but the cases were consolidated for appeal. We affirmed Thomas’s convictions, as well as Bhushan’s. We conditionally reversed Jones’s convictions due to a change in law requiring the juvenile court to determine Jones’s fitness for treatment within the juvenile justice system. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303, 305.) Jones was 17 years old when the offenses were committed.
[1] The section 12022.53, subdivision (d), allegation was subsequently withdrawn by the prosecution as to Jones.
[1] Jones was additionally charged with and convicted of unlawful firearm activity (§ 29820, subd. (b)).
[1] In this brief, Bhushan joined in the arguments made by Thomas in a separately filed supplemental brief regarding Thomas’s section 1170.95 petition to vacate. The trial court heard Thomas’s and Bhushan’s petitions together.
[1] As Drayton described, most Courts of Appeal have interpreted section 1170.95, subdivision (c), as requiring two separate inquiries to be made by a trial court: one, prior to appointing counsel for the petitioner and receiving briefing, to determine whether the petitioner has made a prima facie showing of eligibility for relief and a second, after appointment of counsel and briefing from the parties, to determine whether the petitioner has made a prima facie showing of entitlement to relief. (Drayton, supra, 47 Cal.App.5th at pp. 975–976; People v. Verdugo (2020) 44 Cal.App.5th 320, 328 (Verdugo), review granted Mar. 18, 2020 (S260493).) Division One of this court, to the contrary, has held a single prima facie review is required, with counsel appointed for the petitioner and briefing from the parties if the petition is facially sufficient. (People v. Cooper (2020) 54 Cal.App.5th 106,118–123, review granted Nov. 10, 2020, S264684; People v. Daniel (2020) 57 Cal.App.5th 666, 673–674, review granted Feb. 24, 2021, S266336.)
[1] As we described in Bhushan, immediately following the portion of CALCRIM No. 400 quoted in the text, the jury instructions went on to explain the requirements for proof of aiding and abetting and proof of withdrawal prior to commission of the offense but did not further explain the “specific circumstances” that might result in liability for unintended crimes. The instructions then moved on to liability under a conspiracy theory.
After noting that the quoted instruction is a portion of the introductory “general principles” of aiding and abetting set forth in CALCRIM No. 400, which is to be given “ ‘f the prosecution is also relying on the natural and probable consequences doctrine’ ” (CALCRIM No. 400, Bench notes, Instructional Duty), we stated that the instruction was superfluous and should not have been given at Bhushan’s trial because the prosecutor did not rely upon the natural and probable consequences doctrine with respect to aiding and abetting liability and the court did not instruct on the doctrine with respect to aiding and abetting. ([i]Bhushan, supra, A145855.)
[1] As we have said, in this case, guilt based on natural and probable consequences under a conspiracy theory would necessarily establish intent to kill on the part of each conspirator because a conspiracy to commit murder is necessarily a conspiracy to commit first degree murder. (People v. Cortez (1998) 18 Cal.4th 1223, 1232.) Accordingly, the changes to sections 188 and 189 made by Senate Bill No. 1437 would not alter this basis of liability.
[1] As other courts have noted, consideration of the record of conviction is permissible in analogous contexts, such as petitions under section 1170.18 (recall of sentence and reclassification of felony as misdemeanor) or 1170.126, subdivision (e) (resentencing where third strike was not a serious or violent felony). (Law, supra, 48 Cal.App.5th at pp. 820–821; Lewis, supra, 43 Cal.App.5th at p. 1138.)
[1] Bhushan also mentions the rules that “f the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history” ([i]People v. Knowles (1950) 35 Cal.2d 175, 183) and that “the expression of certain things in a statute necessarily involves exclusion of other things not expressed” (People v. Brun (1989) 212 Cal.App.3d 951, 954). To the extent these principles might apply here, suffice to say the “canons of construction are mere guides and will not be applied so as to defeat the underlying legislative intent otherwise determined.” (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391.)
