Filed 5/23/22 P. v. Duncan CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

CAESAR DUNCAN,

Defendant and Appellant.

B312562

Los Angeles County

Super. Ct. No. BA213135

APPEAL from an order of the Superior Court of Los 

Angeles County, Stephen A. Marcus. Affirmed. 

John Steinberg, 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 Wyatt E. Bloomfield, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

In 2003, a jury convicted defendant and appellant Caesar 

Duncan of second-degree murder and conspiracy to commit 

murder. In 2019, Duncan filed a petition for resentencing under 

Penal Code section 1170.95.1 The trial court granted Duncan 

relief on the murder conviction, but concluded he was ineligible 

for relief as a matter of law on the conspiracy to commit murder 

conviction. On appeal, Duncan contends the trial court erred by 

denying him relief on the conspiracy to commit murder 

conviction, arguing the jury could have convicted him under the 

natural and probable consequences doctrine. We are not 

persuaded. On its face, section 1170.95 does not apply to 

convictions for conspiracy to commit murder. Moreover, Duncan’s 

conspiracy to commit murder conviction required a finding by the 

jury that he harbored the intent to kill, making him ineligible for 

relief under the statute. The order denying him relief on the 

conspiracy to commit murder conviction is therefore affirmed. 

BACKGROUND2

As noted above, in 2003, a jury convicted Duncan of seconddegree murder (§ 187, subd. (a); count one) and conspiracy to 

commit murder (§ 182, subd. (a)(1); count three). The jury also 

found various firearm allegations true on those counts, although 

1 All undesignated statutory references are to the Penal 

Code.

2 The following is a summary of the relevant procedural 

background relating to Duncan’s section 1170.95 petition. We 

omit any recitation of the facts underlying his conspiracy to 

commit murder conviction because they are not relevant to the 

issues presented in this appeal.
3

the trial court later ordered those allegations stricken. 

(§ 12022.53, subds. (c), (d), (e)(1).) The trial court sentenced 

Duncan to 25 years to life on the conspiracy to commit murder 

count. It sentenced him to a concurrent term of 15 years to life on 

the second-degree murder count. 

In 2019, Duncan filed a petition for resentencing under 

section 1170.95. The trial court appointed counsel, considered 

briefing from both parties, then held a prima facie hearing on the 

petition. At the hearing, the prosecution conceded the court 

should grant relief on Duncan’s murder conviction. The court 

accepted the prosecution’s concession. The court denied Duncan 

relief on his conspiracy to commit murder conviction, concluding 

it did not “come within the ambit of Penal Code section 1170.95.”

At the resentencing hearing, Duncan’s attorney renewed 

the argument that section 1170.95 should apply to the conspiracy 

to commit murder conviction. The trial court again rejected the 

contention, noting that section 1170.95 does not refer to 

conspiracy to commit murder, and the jury’s guilty verdict on 

that count necessarily included a finding of intent to kill. The 

court also noted the natural and probable consequences doctrine 

was irrelevant because Duncan was convicted of conspiracy to 

commit murder, not conspiracy to commit a different crime that 

resulted in murder. The court explained: “So [the natural and 

probable consequences doctrine] doesn’t apply in this case. There 

was no target crime. This was conspiracy to commit murder.” The 

trial court vacated Duncan’s murder conviction and resentenced 

him to the previously-imposed 25 years to life term on the 

conspiracy to commit murder count. 

Duncan timely appealed. 
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DISCUSSION

I. Governing Law: Senate Bill 1437 and Section 1170.95

The Legislature enacted Senate Bill 1437 (SB 1437) “to 

amend the felony murder rule and the natural and probable 

consequences doctrine, as it relates to murder, 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); 

accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 959 

(Lewis).)3

SB 1437 also added section 1170.95 to the Penal Code.

(Stats. 2018, ch. 1015, § 4.) This section permits individuals who 

were convicted of felony murder or murder under a natural and 

probable consequences theory, but who could not be convicted of 

murder following SB 1437’s changes to sections 188 and 189, to 

petition the sentencing court to vacate the conviction and 

resentence on any remaining counts. (§ 1170.95, subd. (a).) A 

petition for relief under section 1170.95 must include a 

declaration by the petitioner that he or she is eligible for relief 

under section 1170.95 based on all the requirements of 

subdivision (a), the superior court case number and year of the 

petitioner’s conviction, and a request for appointment of counsel, 

should the petitioner seek appointment. (§ 1170.95, subd. (b)(1).) 

3 Though it is not directly relevant to this appeal, we note 

that effective January 1, 2022, Senate Bill 775 amended section 

1170.95 to provide relief for individuals convicted of attempted 

murder and voluntary manslaughter under certain 

circumstances. (Stats. 2021, ch. 551.)
5

Subdivision (c) of section 1170.95 provides: “Within 60 days 

after service of a petition that meets the requirements set forth in 

subdivision (b), the prosecutor shall file and serve a response. 

The petitioner may file and serve a reply within 30 days after the 

prosecutor’s response is served. These deadlines shall be 

extended for good cause. After the parties have had an 

opportunity to submit briefings, the court shall hold a hearing to 

determine whether the petitioner has made a prima facie case for 

relief. If the petitioner makes a prima facie showing that the 

petitioner is entitled to relief, the court shall issue an order to 

show cause. If the court declines to make an order to show cause, 

it shall provide a statement fully setting forth its reasons for 

doing so.” Our Supreme Court has explained that “petitioners are 

entitled to the appointment of counsel upon the filing of a facially 

sufficient petition [citations], and that only after the appointment 

of counsel and the opportunity for briefing may the superior court 

consider the record of conviction to determine whether ‘the 

petitioner makes a prima facie showing that he or she is entitled 

to relief.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 957, italics in 

original.) 

“If the trial court determines that a prima facie showing for 

relief has been made, the trial court issues an order to show 

cause, and then must hold a hearing ‘to determine whether to 

vacate the murder conviction and to recall the sentence and 

resentence the petitioner on any remaining counts in the same 

manner as if the petitioner had not . . . previously been 

sentenced, provided that the new sentence, if any, is not greater 

than the initial sentence.’ (§ 1170.95, subd. (d)(1).)” (Lewis, supra, 

11 Cal.5th at p. 960.) At the hearing, the parties may rely on the 

record of conviction or present “new or additional evidence” to 
6

support their positions, and “the burden of proof shall be on the 

prosecution . . . to prove, beyond a reasonable doubt, that the 

petitioner is ineligible for resentencing.” (§ 1170.95, subd. (d)(3).) 

II. Analysis

Duncan argues the trial court erred in concluding he was 

ineligible for relief as a matter of law on his conspiracy to commit 

murder conviction. He specifically contends the jury could have 

convicted him on the theory that the murder was a natural and 

probable consequence of aiding and abetting or conspiring to 

commit an assault with a deadly weapon. He therefore asks this 

court to remand the case for an evidentiary hearing. We reject his 

contention and deny his request. Section 1170.95, which allows 

relief for certain individuals convicted of murder, attempted 

murder, and manslaughter, does not state that the crime of 

conspiracy to commit murder is included within its ambit. (See 

§ 1170.95, subd. (a).) Additionally, a review of the jury 

instructions here regarding conspiracy to commit murder shows

the jury made a finding of express malice, which remains a valid 

theory of murder liability under current law. (See §§ 187, subd. 

(a), 188, subd. (a) [express malice remains a valid theory of 

murder liability]; People v. Swain (1996) 12 Cal.4th 593, 607 [“[A] 

conviction of conspiracy to commit murder requires a finding of 

intent to kill, and cannot be based on a theory of implied 

malice.”]; People v. Beck and Cruz (2019) 8 Cal.5th 548, 641 

[“‘[A]ll conspiracy to commit murder is necessarily conspiracy to 

commit premeditated and deliberate first degree murder.’ 

[Citation.]”].) For these reasons, the trial court was correct in 

concluding Duncan is ineligible for relief as a matter of law on his 

conspiracy to commit murder conviction. 
7

DISPOSITION

The order denying Duncan section 1170.95 relief on his 

conspiracy to commit murder conviction is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J. 

We concur: 

MANELLA, P.J.

WILLHITE, J.