Filed 4/7/22 P. v. Carson CA5

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 COURT*

APPEAL from a judgment of the Superior Court of Kings County. Valerie R. Chrissakis, Judge.

Sylvia W. Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Christina Hitomi Simpson and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In 1989, a jury convicted petitioner Derrick Carson of first degree murder (Pen. Code,[1] § 187, subd. (a)), with the special circumstances the murder was committed during the commission or attempted commission of a robbery and burglary (§ 190.2, former subd. (a)(17)(i), (a)(17)(vii)). (People v. Carson (July 26, 1991, F013403) [nonpub. opn.] (Carson).) Petitioner was sentenced to a term of life without the possibility of parole.

In 2020, petitioner filed a petition for resentencing on his murder conviction pursuant to section 1170.95. The court summarily denied the petition at the prima facie stage on the ground the special circumstance findings established he was ineligible for resentencing as a matter of law.

On appeal, petitioner contends the trial court erred in failing to appoint counsel to represent petitioner and engaged in improper factfinding at the prima facie stage. Petitioner further contends these errors were not harmless because the jury instructions do not establish petitioner is ineligible for resentencing as a matter of law. Specifically, he contends the instructions permitted the jury to convict him of first degree murder under a felony-murder theory or the natural and probable consequences doctrine.

In the original opinion, we held: (1) the trial court erred in failing to appoint counsel at petitioner’s resentencing hearing; (2) the trial court did not engage in improper factfinding; and (3) although the trial court erred in failing to appoint counsel, petitioner was not prejudiced by this error because the special circumstance findings establish petitioner is ineligible for section 1170.95 resentencing relief as a matter of law. Accordingly, we affirmed the order denying the petition.

We subsequently granted rehearing to address petitioner’s argument that the special circumstance jury instruction (CALJIC No. 8.80) permitted the jury to find the special circumstance true without finding petitioner aided and abetted in the murder with a specific intent to kill. Specifically, petitioner now directs this court’s attention to the holding of People v. Letner and Tobin (2010) 50 Cal.4th 99 (Letner and Tobin), which held the instruction (CALJIC No. 8.80) read to the jury was ambiguous because “it failed to instruct the jury explicitly that, under then existing law, an aider and abettor must have had the intent that the victim be killed in order for the special circumstance allegation to be true.” (Letner and Tobin, at p. 181.)

We once again conclude the special circumstance finding is dispositive, thereby making petitioner ineligible for section 1170.95 relief as a matter of law. Additionally, to the extent the instruction given in this case was ambiguous, the record nonetheless establishes the jury made the necessary finding petitioner had the intent to kill. Accordingly, we again affirm the trial court’s order denying resentencing relief pursuant to section 1170.95.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the facts as stated in our nonpublished opinion in petitioner’s direct appeal.[2]

On October 1, 1988, Kevin P.[3] was found dead in his apartment, face down on the floor next to an easy chair. Two television sets, two telephones, a videorecorder, and a stereo unit were missing from the apartment. It was later determined Kevin’s death was the result of a skull fracture caused by three blows to the back of the head by a shovel that was found leaning against the easy chair. No fingerprints were found on the shovel, but the thumbprint of petitioner’s counterpart Willie Wills was found on a trophy in the living room. (Carson, supra, F013403.)

Subsequently, officers received information petitioner was in Kevin’s apartment a week prior to the murder. Based on this information, officers contacted petitioner and proceeded to interview him on seven separate occasions. Petitioner provided officers with seven different stories as to what occurred at the time of the incident. Petitioner acknowledged visiting Kevin’s apartment with Wills on a Friday, approximately one week before the body was discovered. In one of his statements, petitioner told officers he only wanted to “ ‘rip off the place,’ ” and did not intend for Kevin to be killed. In some of the interviews, petitioner told officers Wills hit Kevin on the head with the shovel. In another, petitioner “mentioned that he told someone named ‘Raymond’ about the incident in the following manner: ‘ “I robbed his house – and hit the guy with the shovel and knocked him out.” ’ ” However, in his final interview, petitioner told officers he was confused when he made this statement and meant to say that Wills hit Kevin. He also told officers he knew more about the murder, but was afraid he would be killed if he talked. Petitioner did tell officers the murder occurred on a Sunday morning. (Carson, supra, F013403.)

During the trial, the prosecution introduced testimony of two prison inmates who were in cells next to petitioner after his arrest. One inmate testified petitioner told him the victim was hit on the head three times with a shovel, but that petitioner did not specify who hit the victim. The other inmate testified petitioner told him “ ‘they’ ” went to a house to rob it and ended up hitting someone and killing him. Petitioner also told both inmates he was not worried about his fingerprints being found on the shovel because he used gloves. Another inmate testified that petitioner was reluctant to talk and never mentioned his case. (Carson, supra, F013403.)

Petitioner testified and acknowledged going to Kevin’s house with Wills. He testified he did not see the fatal blow, but saw Kevin fall out of the easy chair and saw Wills standing behind him with the shovel. He testified that he lied in his previous statements because he was scared and was trying to protect people. (Carson, supra, F013403.)

On March 30, 1989, the Kings County District Attorney filed an information charging petitioner with first degree murder (§ 187, subd. (a)), with the special circumstances the murder was committed during the commission of a robbery (§ 190.2, former subd. (a)(17)(i)) and burglary (§ 190.2, former subd. (a)(17)(vii)). (Carson, supra, F013403.)

On December 8, 1989, a jury convicted petitioner of first degree murder and found both special circumstance allegations true. On January 9, 1990, the trial court sentenced petitioner to life without the possibility of parole. On appeal, this court affirmed. (Carson, supra, F013403.)

On September 30, 2020, petitioner, in propria persona, filed a petition for resentencing pursuant to section 1170.95. In the form petition, petitioner stated a complaint, information, or indictment was filed against him that allowed him to be prosecuted under a theory of felony murder or murder under the natural and probable consequences doctrine; he was convicted of first or second degree murder at trial; and he could not now be convicted of first or second degree murder because of changes made to sections 188 and 189, effective January 1, 2019. He requested the court appoint counsel for him during the resentencing process. Petitioner further declared he was not the actual killer; he did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree; he was not a major participant in the felony or did not act with reckless indifference to human life during the course of the crime or felony; and the victim of the murder was not a peace officer in the performance of his or her duties.

On October 6, 2020, the trial court, without appointing counsel or allowing counsel an opportunity to file responsive briefing, issued an order denying the petition. The trial court noted that this court had stated in its prior opinion that the jury found both special circumstances true and thus specifically found petitioner was either the actual killer or intended to aid another in the killing. The court thus concluded “the special circumstance admission shows as a matter of law that [p]etitioner could still be convicted of felony murder even under the newly amended version of section 189, and prevents [p]etitioner from making a prima facie case that he is eligible for resentencing.” A timely appeal followed.

DISCUSSION

I. Applicable Law

Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) “to amend the felony murder rule and the natural and probable consequences doctrine . . . 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The bill accomplished this task by adding three separate provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).) First, to amend the natural and probable consequences doctrine, the bill added section 188, subdivision (a)(3), which requires a principal to act with malice aforethought before he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-843.) Second, to amend the felony-murder rule, the bill added section 189, subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying felonies] 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.”[4] (§ 189, subd. (e); accord, Gentile, at p. 842.)

Finally, the bill added section 1170.95 to provide a procedure for those convicted of a qualifying offense “to seek relief under the two ameliorative provisions above.” (Gentile, at p. 843.) This procedure is available to persons convicted of “felony murder or 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, attempted murder under the natural and probable consequences doctrine, or manslaughter.” (§ 1170.95, subd. (a).)

“Section 1170.95 lays out a process” for a person convicted of one of the aforementioned offenses “to seek vacatur of his or her conviction and resentencing.” (Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the sentencing court averring that:

“(1) A complaint, information, or indictment was filed against the petitioner 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 probable consequences doctrine[;]

“(2) The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder[; and]

“(3) The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3); see § 1170.95, subd. (b)(1)(A); accord, People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)

Additionally, the petition shall state “[w]hether the petitioner requests the appointment of counsel.” (§ 1170.95, subd. (b)(1)(C).)

If a petition fails to contain the required information and the information cannot be “readily ascertained” by the court, the petition may be denied without prejudice to the filing of another petition. (§ 1170.95, subd. (b)(2).) Otherwise, counsel must be appointed, if requested. (§ 1170.95, subd. (b)(3).) The prosecutor must file a response and the petitioner may file a reply. The trial court must then hold a hearing to determine if the petitioner has made a prima facie showing that he or she is entitled to relief. (§ 1170.95, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-971.) The record of conviction includes, but is not limited to, jury instructions and verdict forms. (See generally id. at p. 972.) However, the prima facie inquiry is limited and, at this stage of the proceedings, the court “should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ” (Id. at pp. 971-972.)

If the court determines the petitioner has met his or her prima facie burden, “the trial court must issue an order to show cause and hold a hearing to determine whether to vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord, § 1170.95, subds. (c), (d)(1).) At the hearing, the prosecution must “prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet their respective burdens. The admission of evidence at the hearing is governed by the Evidence Code. However, the court also “may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed,” as well as the “procedural history of the case recited in any prior appellate opinion.” (§ 1170.95, subd. (d)(3).) Hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made admissible by another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)

To demonstrate prejudice from the denial of a section 1170.95 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent error, his or her petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson (1956) 46 Cal.2d 818, 836.)

II. Analysis

Petitioner contends the trial court erred in failing to appoint counsel and engaged in improper factfinding at the prima facie stage. Petitioner further contends these errors were not harmless because the jury instructions do not establish petitioner is ineligible for resentencing as a matter of law. We conclude the trial court erred in disposing of the petition without following the procedures required by section 1170.95, subdivisions (b)(3) and (c), specifically by failing to appoint counsel. However, as we explain, petitioner was not prejudiced by this error because the record of conviction establishes, as a matter of law, he is ineligible for resentencing relief pursuant to section 1170.95.

A. Standard of Review.

“Because we are tasked with applying the section 1170.95, subdivision (c) standard governing prima facie entitlement to relief [citation], our review is de novo. [Citation.] As with any case involving statutory interpretation, our primary goal is to ascertain and effectuate the lawmakers’ intent. [Citation.] [¶] In applying the de novo standard, we accept the pleaded facts as true [citation], but evaluate those facts in light of facts readily ascertainable from the record of conviction . . . . A petition’s allegations fail to show entitlement to relief at the section 1170.95, subdivision (c) stage if ‘readily ascertainable facts’ in the record of conviction ‘conclusively refute them as a matter of law.’ ” (People v. Secrease (2021) 63 Cal.App.5th 231, 244, review granted June 30, 2021, S268862.)

B. The Trial Court Erred in Failing to Appoint Counsel.

In supplemental briefing filed after our Supreme Court’s decision in Lewis, supra, 11 Cal.5th 952, the parties agree the trial court erred in failing to appoint counsel to represent petitioner on the petition. At the time the trial court ruled on the petition, our Supreme Court had not resolved whether section 1170.95 requires the appointment of counsel or further briefing immediately upon the filing of a facially sufficient petition. (See Lewis, supra, 11 Cal.5th at pp. 961-967.) However, our Supreme Court recently clarified that counsel must be appointed if requested, and briefing must proceed, so long as the petition complies with the requirements of section 1170.95, subdivision (b)(1). (Lewis, at pp. 962-963, 967.) Here, the petition did not fail to meet the requirements of section 1170.95, subdivision (b)(1). Accordingly, appointment of counsel and a full opportunity for briefing were required by section 1170.95, subdivisions (b)(3) and (c). (See Lewis, at pp. 961-963, 967.) The court erred in disposing of the petition without following these procedures.

C. The Trial Court Did Not Engage in Improper Factfinding.

As previously noted, at the prima facie stage the 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; see People v. DeHuff (2021) 63 Cal.App.5th 428, 439 [“ ‘[T]his authority to make determinations without conducting an evidentiary hearing pursuant to section 1170.95, subd[ivision] (d) is limited to readily ascertainable facts from the record [of conviction] (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion . . . .’ ”], abrogated on another ground in Lewis, at p. 962.) “If, accepting the petitioner’s asserted facts as true, he or she meets the requirements for relief listed in section 1170.95, subdivision (a), then the trial court must issue an order to show cause,” unless facts in the record conclusively refute the petitioner’s assertions. (People v. Drayton (2020) 47 Cal.App.5th 965, 968, abrogated on other grounds by Lewis, at p. 962.)

The relevant portion of the trial court’s ruling is as follows:

“This court finds that Petitioner has failed to state a prima facie case for relief under § 1170.95. After consideration of the petition and information available in the court file, Petitioner could have been convicted of first-degree murder under the law as it reads after the enactment of Senate Bill 1437. (§ 1170.95(a)(3).) Petitioner’s appeal from the California Court of Appeal, Fifth Appellate District (Opinion F013403) stated the following:

“ ‘[Petitioner] was convicted of murder, and the jury specifically found that the murder was committed during the course of a robbery or attempted robbery, and that [Petitioner] was either the actual killer or intended to aid another in the killing. Such findings infer that the jury disbelieved his testimony that he did not know [his accomplice] was going to kill [the victim] prior to entering the apartment, and formed the intent to steal only after [his accomplice] hit [the victim] on the head.

“ [‘]The jury reached a special finding that the murder was committed during the commission or attempted commission of burglary, and that [petitioner] was the murderer or intended to aid another in the murder. This special finding was reached after the jury received CALJIC No. 4.21: “In the crime of murder of which the defendant is accused, a necessary element is the existence in the mind of the defendant of the specific intent to steal prior to entry into the home as to the special circumstance of burglary; the specific intent to steal as to the special circumstance of robbery; the specific intent to kill as to the crime of murder; and the mental state of malice aforethought in the crime of murder in the second degree and of malice aforethought in the crime of murder in the first degree other than felony murder.” ’

“To be eligible for resentencing under § 1170.95, Petitioner must make a prima facie showing that he ‘could not be convicted of first or second degree murder because of changes to Section 188 or 189 made’ in Senate Bill No. 1437. (§ 1170.95, subd. (a)(3), italics added.) Under the newly amended version of § 189, a defendant can be convicted of felony murder only if he: was the actual killer, acted with intent to kill in aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in first degree murder; or ‘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[.]’ (§ 189 subd. (e)(3).) These are identical to the requirements of a felony-murder special circumstance now and in 1990 when Petitioner pleaded guilty. Thus, the special circumstance admission shows as a matter of law that Petitioner could still be convicted of felony murder even under the newly amended version of section 189, and prevents Petitioner from making a prima facie case that he is eligible for resentencing.”

The trial court did not engage in factfinding in reaching these conclusions. Rather, the court recited the facts necessarily found by the jury in rendering its verdict: that petitioner was either the murderer, or intended to aid another in the murder. The court relied on these facts, as conclusively established by the jury’s verdict, to deny the petition. As we explain below, these findings indisputably establish that petitioner is ineligible for resentencing.

D. Petitioner was not Prejudiced by the Trial Court’s Error.

As stated, the trial court erred in failing to appoint counsel, and we therefore may affirm only if petitioner was not prejudiced by the error. As we explain, we conclude petitioner cannot demonstrate prejudice because the record establishes he is ineligible for resentencing as a matter of law. (See Lewis, supra, 11 Cal.5th at pp. 972-974; see also People v. Watson, supra, 46 Cal.2d at p. 836.)

i. The Special Circumstance Findings are Dispositive.

To be eligible for relief pursuant to section 1170.95, petitioner must not have been the actual killer, must not have acted with the intent to kill or malice aforethought, and must not have been a major participant in the underlying felony who acted with reckless indifference to human life. (§§ 188, subd. (a)(3), 189, subd. (e), 1170.95, subd. (a)(3); see Gentile, supra, 10 Cal.5th at p. 842.) Here, the jury found both the robbery and burglary special circumstances true. (§ 190.2, former subd. (a)(17)(i), (a)(17)(vii).) At the time of the offenses, section 190.2, subdivision (a)(17) imposed a sentence of death or life without the possibility of parole for a murder committed in the commission or attempted commission of a robbery (§ 190.2, former subd. (a)(17)(i)), or burglary (§ 190.2, former subd. (a)(17)(vii)). To find these special circumstances true, the jury was required to find either that petitioner was the actual killer, or that petitioner intentionally aided and abetted in the murder. (§ 190.2, former subd. (b).) Therefore, the true findings on the special circumstance allegations establish the jury made the requisite findings necessary to sustain a murder conviction under the law, as amended by Senate Bill No. 1437.

Nevertheless, petitioner contends that “although the special-circumstance findings were not challenged on [petitioner’s] direct appeal, it is clear the 1989 instructions read as a whole did not require jurors to find [petitioner] assisted in the killing with specific intent to kill, nor that he was a major participant who acted with reckless indifference to life, in order to find the special circumstance true.”[5] Petitioner argues the special circumstance finding by itself cannot be dispositive in determining whether he possessed an intent to kill or acted with reckless indifference to human life and that this court should rather focus on the instructions provided to the jury.

We reject this proposition. Section 1170.95 provides a mechanism for resentencing individuals whose convictions are no longer valid due to changes to sections 188 and 189. (§ 1170.95, subd. (a)(3).) It does not provide a mechanism for challenging a jury’s prior factual findings. (People v. Allison (2020) 55 Cal.App.5th 449, 461.) “The purpose of section 1170.95 is to give defendants the benefit of amended sections 188 and 189 with respect to issues not previously determined, not to provide a do-over on factual disputes that have already been resolved.” (Allison, at p. 461.) In other circumstances, this court has declined to utilize the section 1170.95 procedure to examine the record of conviction to determine whether a special circumstance finding was properly entered. (People v. Simmons (2021) 65 Cal.App.5th 739, 749, review granted Sept. 1, 2021, S270048.) Rather, this court has concluded that such findings are binding on the issues necessarily decided by the jury, unless the findings were invalidated on direct appeal or in a habeas proceeding. (Ibid.) As petitioner concedes, the special circumstance findings have not been invalidated on direct appeal or in habeas and therefore the findings establish that petitioner is ineligible for resentencing as a matter of law. He therefore was not prejudiced by the court’s denial of his petition without the appointment of counsel.

ii. The Record of Conviction Regarding the Special Circumstance Supports the Jury’s Finding that Petitioner Had the Intent to Kill.

However, even if we were inclined to look behind the jury’s verdict, we disagree with petitioner the record of conviction does not establish petitioner acted with intent to kill. Petitioner contends the special circumstance instruction provided to the jury permitted the jury to find the special circumstance true without finding he aided and abetted in the murder with an intent to kill. Specifically, petitioner references the special circumstance instruction given to the jury, CALJIC No. 8.80.1, which provides:

“If you find [the] [a] defendant in this case guilty of murder of the first degree, you must then determine if [one or more of] the following special circumstance[s]: [are] true or not true: if he was killed in the commission or attempted commission of burglary and/or the commission or attempted commission of robbery . . . .

“The People have the burden of proving the truth of a special circumstance. If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true.

“[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.] [On the other hand, if you find beyond a reasonable doubt that the defendant was the actual killer, you need not find that the defendant intended to kill a human being in order to find the special circumstance to be true.]”

Petitioner argues this instruction did not establish he acted with intent to kill because it merely required that he intended to assist in a killing, which is not equivalent to intending to kill. We find it difficult to imagine a scenario where an individual can intend to assist in a killing without possessing an intent to kill.

Petitioner also argues the instruction did not require the jury to find he aided and abetted in the murder (as opposed to an underlying felony) with intent to kill. We do not think there is any reasonable possibility the jury misinterpreted the instruction as petitioner suggests. Again, the instruction required the jury to find “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.” (Italics added.)

Petitioner also points out that the instruction (CALJIC No. 8.80.1) did not expressly state whether the jury was required to find intent to kill if it determined petitioner was an aider and abettor to the murder. Our Supreme Court addressed a substantially similar ambiguity in Letner and Tobin, supra, 50 Cal.4th at page 182. In Letner and Tobin, the court concluded the instruction was ambiguous because the instruction told the jury (1) “that if it determined one of the defendants was the actual killer, intent to kill was not required,” and (2) “if it could not decide whether one of the defendants was the actual killer or an aider and abettor, it must find intent to kill in order to make a true finding,” but (3) if the jury determined the defendant was an aider and abettor, the instruction did not inform the jury of the state of mind that was required (i.e., intent to kill). (Id. at p. 181.) “[T]he instruction compares the requirement applicable when the jury cannot decide between actual killer and aider and abettor, with—‘on the other hand’—the situation when the jury does decide upon an actual killer. In this circumstance, there are three ‘hands,’ not merely two, and the instruction left the jury to surmise what intent an aider and abettor was required to have.” (Id. at pp. 181-182, italics omitted.)

However, the court concluded “there [was] no reasonable likelihood the jury misunderstood or misapplied the instruction” because the “jury could draw from the instruction as a whole the inference that an aider and abettor was required to have an intent to kill.” (Letner and Tobin, supra, 50 Cal.4th at p. 182, original italics.) Additionally, the court noted “[t]he prosecutor . . . did not rely upon the natural-and-probable-consequences doctrine; rather, she repeatedly argued the evidence established that both defendants intended to commit all of the charged crimes, and both intended to kill [the victim].” (Id. at pp. 183-184.) Finally, the court noted that, based on the evidence, there was “no reasonable likelihood that the jury found one defendant was the actual killer, and then based its special circumstance findings as to the other defendant upon an erroneous notion that an aider and abettor need not possess the intent to kill.” (Id. at p. 183.)

As in Letner and Tobin, we conclude there is no reasonable possibility the jury misunderstood or misapplied the instruction in the instant case in the way petitioner suggests. Similar to the prosecutor in Letner and Tobin, the prosecutor in this case during closing argument told the jury the following as it related to the special circumstance allegations:

“So once you have reached a verdict of murder based on the First Degree Felony Murder Rule, you must not automatically sign the special circumstances findings just because the killing did in fact occur during a burglary or robbery, you must then determine whether or not [petitioner] was the actual killer or that he aided and abetted Willie Wills in the actual killing with the intent that Kevin [P.] be killed.” (Italics added.)

The prosecutor continued by stating:

“Remember, that to find [petitioner] guilty of first degree murder you don’t need to find any intent whatsoever on his part or anybody else that Kevin [P.] actually be killed, only that they intended to commit a burglary or a robbery of Kevin [P.’s] apartment and that Kevin [P.] was killed during that crime.”

However, as it specifically related to the special circumstance allegations, the prosecutor ended his argument by stating:

“So when you go back into the jury room and you deliberate among yourselves, you have plenty of evidence to reach a verdict of guilty of murder in the first degree, guilty of the special circumstances of committing the crime while in the commission of a robbery or burglary, being the actual killer, or at least being – having the intent, sharing the intent with the actual killer that the victim be killed. And that’s my conclusion. Thank you.” (Italics added.)

The prosecutor clearly articulated the requirement that a true finding on the special circumstance allegations required the jury to find petitioner had the intent to kill.

Additionally, on the verdict form, the jury found true, “that [the petitioner] was the actual killer or that he intended to aid another in the killing of a human being.” The jury specifically found petitioner, even as an aider and abettor, had the requisite intent to kill to sustain a murder conviction under the law, as amended by Senate Bill No. 1437. Accordingly, we disagree with petitioner’s contention that the verdicts do not “ ‘unmistakably’ ” establish that the jury found he acted with an intent to kill. When the verdict form is “ ‘ “ ‘construed in light of the issues submitted to the jury and the instructions of the court’ ” ’ ” (People v. Camacho (2009) 171 Cal.App.4th 1269, 1272), it is clear the jury found petitioner was either the actual killer or aided and abetted in the murder with an intent to kill.

iii. Other Instructions on Accomplice Liability.

Petitioner also contends the instructions on aiding and abetting, murder, and felony murder allowed the jury to convict petitioner of first degree murder either under the felony-murder rule or natural and probable consequences doctrine, and find him guilty without a finding of an intent to kill. Petitioner is correct that the jury instructions permitted the jury to render a guilty verdict under a felony-murder theory or a natural and probable consequences theory, and specifically under theories which are no longer valid under sections 188 and 189, as amended by Senate Bill No. 1437. However, the record establishes the jury did not find petitioner guilty based on one of these invalid theories. Rather, the special circumstance findings make clear the jury determined petitioner was either the actual killer, or aided and abetted the murder with intent to kill.

Because the jury determined petitioner was either the actual killer or aided and abetted in the murder with intent to kill, petitioner is ineligible for resentencing as a matter of law and the court was not required to issue an order to show cause or hold an evidentiary hearing. The petition was properly denied.

DISPOSITION

The order denying petitioner’s section 1170.95 petition is affirmed.

* Before Detjen, Acting P. J., Franson, J. and Smith, J.

[1] Subsequent statutory references are to the Penal Code, unless otherwise indicated.

[2] We provide these facts for background purposes only because they were cited by petitioner in his opening brief. However, we do not rely on these facts in resolving the issues presented in this appeal. (See § 1170.95, subd. (d)(3).)

[3] Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended.

[4] Additionally, section 189 was amended to allow for felony-murder liability where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57 Cal.App.5th 666, 672.)

[5] We agree with petitioner that the record does not establish he was a major participant who acted with reckless indifference to human life as described in section 190.2, subdivision (d). Subdivision (d) of section 190.2 was enacted after petitioner was convicted (§ 190.2, subd. (d), added by initiative, Primary Elec. (June 5, 1990) Prop. 115, § 10; see People v. Banks (2015) 61 Cal.4th 788, 794), and thus the factual question of whether petitioner was a major participant who acted with reckless indifference was not submitted to the jury.