Filed 8/25/22 P. v. Bell CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL BELL,

Defendant and Appellant.

 B310866

 (Los Angeles County

 Super. Ct. No. BA107262)

APPEAL from an order of the Superior Court of Los 

Angeles County, William C. Ryan, Judge. Vacated and remanded

with directions.

Jennifer Peabody, 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, Assistant 

Attorney General, Amanda V. Lopez and David E. Madeo, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________
2

Penal Code section 1172.6 authorizes a court in appropriate 

circumstances to grant a petition to vacate a murder conviction 

obtained pursuant to the natural and probable consequences 

doctrine.

1 If the court vacates the conviction but there were other 

charges levied, the court must resentence the petitioner on those 

charges. However, if the court vacates the conviction and there 

were no other charges, i.e., murder was charged generically and 

the target offense was not charged, the court must then 

redesignate the conviction as the target offense and resentence 

the petitioner for that offense.

Here, the trial court vacated Bell’s conviction for second 

degree murder, which had been charged generically, but 

redesignated the conviction not as the target offense, simple 

assault, but as assault by means of force likely to cause great 

bodily injury, which the court found was supported by the 

evidence, and added enhancements which the court found were 

also supported beyond a reasonable doubt. The court then 

resentenced Bell accordingly.

Bell appeals, contending the court should have 

redesignated his murder conviction as the target offense—simple 

assault—not as a newly envisaged felony, and alternatively 

contends that no substantial evidence supports a conviction for 

assault by means of force likely to cause great bodily injury. He 

also contends the abstract of judgment requires correction.

1 Undesignated statutory references will be to the Penal 

Code. 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

We agree that the redesignation was unauthorized, 

resulting in an unauthorized sentence. Accordingly, we vacate

the order and remand the matter with directions.

BACKGROUND

A. Conviction

On October 19, 1993, several Black P Stone gang members 

led by Bell, who had a gun in his waistband, attacked four men, 

including Kendall Pryor and Kerry Bell, at a gym. (Kerry Bell 

was no relation to appellant, and will hereafter be referred to as 

“Kerry” to avoid confusion.) Bell started a fight that turned in to 

a free-for-all, during which Kerry was struck on the head with a 

chain and fell to the ground. Pryor was beaten by several gang 

members, including Bell, and was ultimately shot and killed by 

Kendall Mosely, one of the assailants. 

Bell was charged with murder, and the information alleged 

that a principal was armed with a firearm and that Bell 

personally used a firearm. On July 31, 1995, the trial court found 

insufficient evidence supported the allegation that Bell 

personally used a firearm, and entered a judgment of acquittal on 

that allegation. 

The jury was instructed on first degree premeditated 

murder (CALJIC 8.20), second degree murder (CALCRIM 8.30), 

direct aiding and abetting of the murder (CALJIC 3.00, 3.01), and 

aiding and abetting an “assault” under the natural probable 

consequence theory (CALJIC 3.02). 

On August 7, 1995, a jury found Bell guilty of second 

degree murder and found true the allegation that a principal was 

armed with a firearm. On January 12, 1996, the court sentenced

Bell to 15 years-to-life plus one year for the firearm finding. 
4

We affirmed the conviction. (People v. Bell (Apr. 22, 1997, 

B099896) [nonpub. opn.] (Bell).)

B. Petition

On January 2, 2019, Bell petitioned the superior court for 

resentencing pursuant to former section 1170.95. The court 

appointed counsel to represent him, later granted his petition to 

represent himself, and issued an Order to Show Cause. 

Relying on trial transcripts and our opinion in Bell, the 

court found after a hearing that the prosecution failed to prove 

beyond a reasonable doubt that Bell could still be convicted of 

murder as a direct aider and abettor because the evidence failed 

to show he harbored malice. The court noted that Bell was not 

the shooter, that only five of the dozen gang members who fought 

with Pryor and his friends inside the gymnasium continued the

fight into the hallway where Pryor was shot, and that no 

evidence suggested Bell was in the hallway or participated in 

Pryor’s beating immediately preceding his death. 

The court therefore granted Bell’s petition for resentencing 

and vacated his murder conviction and sentence. 

C. Resentencing

At the resentencing hearing, the court observed that 

because murder had been charged generically, with no other 

charges, the court could select any suitable target offense for 

resentencing. The court redesignated the target offense as 

assault by means of force likely to produce great bodily injury 

(§ 245, subd. (a)(4)), found a principal had used a weapon within 

the meaning of section 12022, subdivision (a), and added the

uncharged allegation that Bell personally inflicted great bodily 

injury on Pryor within the meaning of section 12022.7, 

subdivision (a). 
5

In answer to Bell’s objection that it was never alleged at 

trial nor found by the jury that he personally inflicted great

bodily injury on Pryor, the resentencing court justified its great 

bodily injury finding by observing that Bell had been “an aider 

and abettor . . . to all of it.” 

The court sentenced Bell to the upper term of four years, 

plus three years for the infliction of great bodily injury and one 

year for the weapon enhancement. 

Bell was given credit for 9,581 actual days plus 217 days 

local credit for a total of 9,798 days.

He timely appealed.

DISCUSSION

Bell contends the court erred in redesignating his murder 

conviction as assault by means of force likely to produce great 

bodily injury and by adding allegations that a principal was 

personally armed with a firearm and Bell personally inflicted 

great bodily injury on Pryor. We agree.

A. The New Sentence was Improper

1. Section 1172.6

Senate Bill No. 1437 was enacted in 2018 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).) It accomplished this 

by amending section 188, subdivision (a)(3), to require that all 

principals in a murder, except felony murder under section 189, 

subdivision (e), must have acted with express or implied malice to 

be convicted of that crime. (Stats. 2018, ch. 1015, § 2.) For a 
6

felony murder conviction under section 189, subdivision (e), 

Senate Bill No. 1437 required that the defendant be the actual 

killer, an aider and abettor to the murder who acted with intent 

to kill, or a major participant in the underlying felony who acted 

with reckless indifference to human life. (Stats. 2018, ch. 1015, 

§ 3.)

A person convicted of murder under a felony murder or 

natural and probable consequences theory may petition the 

sentencing court to vacate the conviction and resentence on any 

remaining counts if the person could not now be convicted of 

murder under the new section 188 or 189. (§ 1172.6, subd. (a).)

As pertinent here, subdivision (d)(3) of section 1172.6

provides that “[i]f the prosecution fails to sustain its burden of 

proof [in opposition to a resentencing petition], the prior 

conviction, and any allegations and enhancements attached to 

the conviction, shall be vacated and the petitioner shall be 

resentenced on the remaining charges.” (Italics added.)

Subdivision (e) of section 1172.6 provides in pertinent part 

that if “murder . . . was charged generically, and the target 

offense was not charged,” the “conviction shall be redesignated as 

the target offense or underlying felony for resentencing 

purposes.”2

We interpret a statute de novo. (People v. Lewis (2021) 11 

Cal.5th 952, 961.)

2 Subdivision (e) of section 1172.6 provides: “The 

petitioner’s conviction shall be redesignated as the target offense 

or underlying felony for resentencing purposes if the petitioner is 

entitled to relief pursuant to this section, murder or attempted 

murder was charged generically, and the target offense was not 

charged. Any applicable statute of limitations shall not be a bar 

to the court’s redesignation of the offense for this purpose.”
7

2. “Target Offense”

The issue is what constitutes the “target offense” for 

purposes of section 1172.6 when murder is charged generically 

and there are no separate charges. Subdivision (e) of section 

1172.6 neither defines target offense nor specifies the process by 

which the court should identify that offense. (People v. Medina

(2009) 46 Cal.4th 913, 920.) Where the target offense is not 

separately charged, “[T]he court must determine the target 

offense . . . by reference . . . to the underlying felony (target 

offense) identified in the instructions.” (J. Richard Couzens, 

Accomplice Liability for Murder (SB 1437) (June 2020), Sec. VI, 

p. 47.)

3. Analysis

a. redesignation

Here, Bell was charged only with murder; there were no 

“remaining charges.” But per jury instructions and the 

prosecutor’s closing arguments, the prosecution’s theory was that 

Bell directly aided and abetted the murder of Pryor or aided and 

abetted an “assault” under the natural and probable consequence 

theory. The target offense was therefore simple assault.

Under these circumstances the proper course would have 

been to vacate Bell’s conviction and firearm enhancement and

redesignate the conviction as simple assault. 

Section 1172.6 contains no provision for redesignating a 

generically-charged conviction as something other than the target 

offense, or for appending an enhancement thereto. Therefore, 

Bell’s new sentence for assault by means of force likely to produce 

great bodily injury, plus firearm and personal infliction of great 

bodily injury enhancements, was unlawful.
8

Relying on People v. Howard (2020) 50 Cal.App.5th 727 

(Howard) and its progeny, Respondent argues the court properly 

identified the target offense as assault by means of force likely to 

produce great bodily injury. We disagree.

In Howard, an elderly woman was shot and killed during a 

burglary of her home. (Howard, supra, 50 Cal.App.5th at p. 729.) 

The jury convicted the defendant of first degree murder with a 

felony-murder special circumstance, finding the defendant was 

engaged in the commission of the crime of “burglary,” with no 

person-present allegation such as would raise second-degree 

burglary to burglary of the first degree (§ 190.2, subd. (a)(17)(G)). 

(Howard, at p. 732.) The trial court later granted the defendant’s 

former section 1170.95 resentencing petition and identified the 

underlying felony as first degree residential burglary, stating 

that “a second degree burglary designation would lack credibility 

and common sense, and ‘would cause an injustice’ to the 

prosecution and the victim.” (Howard, at p. 734.) Our colleagues 

in District One held that the evidence at trial established that the 

basis for Howard’s murder liability was the burglary of a 

residence. Accordingly, the offense underlying his felony-murder 

liability was first degree burglary. (Id. at pp. 737-738.) The 

court observed that “the plain language of [former] section 

1170.95, subdivision (e), contemplates a situation where—as 

here—the underlying felony was not charged. It follows that 

where the underlying felony is not charged, there will be no jury 

instruction or verdict form.” (Id. at p. 738.) Therefore, the court 

reasoned, the absence of a first degree burglary instruction and 

verdict did not preclude the trial court from identifying the 

underlying offense as first degree burglary because the evidence 

at trial demonstrated “beyond any dispute” that the building 
9

Howard invaded was a residence. (Ibid.) The court “question[ed]

the practicality of requiring a trial court to ignore evidence 

established at trial when designating the underlying felony 

pursuant to [former] section 1170.95, subdivision (e).” (Ibid.)

Following Howard, the First District held in People v. Silva

(2021) 72 Cal.App.5th 505 (Silva) that identifying the target 

offenses—which arose out of an uncharged home invasion 

robbery involving five victims—as five home-invasion robberies 

was proper, because “factfinding by the resentencing judge . . . is 

implicit in the redesignation process.” (Id. at p. 520.)

Also following Howard, the First District held in People v. 

Watson (2021) 64 Cal.App.5th 474 that identifying the target 

offense—where a hotel guest was killed in his hotel room during 

a robbery—as both first degree burglary and first degree robbery 

was proper. (Id. at pp. 485-492.) 

Respondent urges that we follow Howard, Watson and 

Silva, and identify the target offense here as any offense 

supported by the evidence. Bell, to the contrary, argues those 

cases were wrongly decided, and urges that we disagree with 

them. We need neither follow nor disagree with the cases

because they are distinguishable.

Because the Legislature has not defined “target offense,” 

the courts must perforce engage on some degree of factfinding to 

identify the offense underlying the original conviction. In some 

cases the target offence may be identified by referencing such 

factors as the location of the crime or presence of additional 

victims. For example, a burglary is of the first degree when it 

occurs in an occupied residence, and of the second degree when it 

occurs somewhere other than in an occupied residence. (Compare 

§ 460, subd. (a) [burglary of an inhabited dwelling house is 
10

burglary of the first degree] and subd. (b) [any other burglary is 

of the second degree].) It is therefore within the mandate of 

section 1172.6 to identify the target offense by determining the 

context of the crime, even if that context can be found in no 

charging document or jury instruction. To do so comports with 

common sense and results in no injustice.

Thus in Howard, for example, the First District aptly held 

that the underlying offense—identified only as “burglary” at 

trial—was first rather than second-degree burglary because it 

was “beyond any dispute” that the victim was killed in her own 

home. (Howard, supra, 50 Cal.App.5th at p. 738.) Similarly in 

Watson, it was beyond dispute that the killing occurred in the 

victim’s hotel room during a robbery, and in Silva that the killing 

occurred during a home invasion robbery involving five victims. 

In each case the court identified the target offense by taking into 

consideration the undisputable circumstances under which the 

crime was committed.

Not so here. Here, the target offense was identified only as 

an “assault.” To distinguish simple from aggravated assault 

requires reference not to the location of the incident or number of 

victims but to the quality of the attack. (Compare § 241 [assault 

punishable by a six-month jail term] and § 245, subd. (a)(4) 

[assault by means of force likely to produce great bodily injury 

punishable by prison term of two, three or four years].)

Here, for example, to determine that Bell committed 

assault by means of force likely to produce great bodily injury 

would require the court to qualify the force used.

In sum, we agree with Howard, Watson and Silva that to 

identify a target offense where charging documents and jury 

instructions are silent sometimes requires consideration of the 
11

undisputable context of the crime, for example whether a 

burglary occurred in an inhabited dwelling, or whether there was 

more than one victim. But to extend judicial factfinding upon 

resentencing to disputable issues such as the degree of force used 

in an assault goes beyond the mandate of section 1172.6 to 

identify the target offense.

Therefore, Bell’s redesignated sentence was unlawful, and 

must be vacated.

b. enhancements

Bell argues the trial court further erred in appending a 

great bodily injury to his conviction. We agree because section 

1172.6 contains no provision for adding new enhancements.

Respondent urges that we follow People v. Gonzales (2021) 

65 Cal.App.5th 1167, where our colleagues in Division Four of 

this district approved attaching a gang allegation to a 

redesignated simple battery offense. But the only issue raised in 

that case was whether adding an enhancement that did not exist 

when the defendant was originally convicted violated the ex post 

facto clauses of the United States and California Constitutions 

(U.S. Const., art. I, § 10; Cal. Const., art. I, § 9). (Gonzales, at p. 

1170.) The court was not called upon to decide, and did not 

decide, whether section 1172.6 authorizes such an enhancement. 

Gonzales therefore does not stand for the proposition that section 

1170.95 authorizes new enhancements.

Because the plain language of section 1172.6 authorizes no 

new enhancement, we conclude that part of Bell’s redesignated 

sentence was also unlawful, and must be vacated.

We do not reach whether substantial evidence supported 

the redesignated sentence, nor whether the abstract of judgment 

must be corrected.
12

DISPOSITION

The trial court’s order is vacated and the matter remanded. 

The court is directed to redesignate Bell’s conviction as being for 

simple assault and resentence him accordingly.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J. 

MORI, J.*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.