Filed 12/15/21 P. v. Young CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent,

v.

DAN M. YOUNG,

Defendant and Appellant.

 B310237

 (Los Angeles County

 Super. Ct. No. TA142441)

APPEAL from an order of the Superior Court of Los 

Angeles County, Ricardo R. Ocampo, Judge. Affirmed.

Kathy R. Moreno, 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, Charles S. Lee and Stephanie A. 

Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

_____________________________
2

INTRODUCTION

Dan M. Young appeals from the trial court’s order denying 

his petition for resentencing under Penal Code section 1170.95.1 

He contends the court erred in denying his petition without 

appointing counsel and without holding a hearing under section 

1170.95, subdivision (d)(1). The People concede the court erred in 

not appointing counsel, but argue that the error was harmless 

and that a hearing under subdivision (d)(1) was not required 

because the record of conviction established Young was not 

entitled to relief as a matter of law. We agree with the People 

and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Young of Murder and Attempted 

Murder, and This Court Affirms

On October 26, 2014, in retaliation for a violent altercation 

with members of a rival gang, Young and a fellow gang member, 

Christopher Stone, carried out a pair of shootings that left one 

person dead and several wounded. In September 2015, to 

instigate a confrontation with a rival gang, Young walked up to

another young man at a street corner and shot him dead. 

In 2018, in connection with the October 26, 2014 shootings, 

a jury convicted Young on one count of first degree murder 

(count 1) and five counts of attempted willful, deliberate, and 

premeditated murder (counts 2 through 6). In connection with 

the September 2015 shooting, the jury convicted Young on one 

1 Statutory references are to the Penal Code. 
3

count of first degree murder (count 7) and one count of possession 

of a firearm by a felon (count 8). On the murder counts the jury 

found true the special circumstance allegation that, within the 

meaning of section 190.2, subdivision (a)(3), Young committed 

more than one murder in the first or second degree. On both 

murder counts the jury also found true an allegation under 

section 190.2, subdivision (a)(22), that Young intentionally killed 

the victim while Young was an active participant in a criminal 

street gang and committed the murder to further the activities of 

the gang. The court sentenced Young to two terms of life without 

the possibility of parole, plus 250 years to life, plus five years. 

We affirmed Young’s convictions and prison sentence. (People v. 

Stone et al. (Mar. 2, 2020, B293532) [nonpub. opn.].)

B. Young Files a Petition Under Section 1170.95

In October 2020 Young filed a petition for resentencing 

under section 1170.95, declaring that a complaint, information, or 

indictment was filed against him that allowed the prosecution to 

proceed under a theory of felony murder or murder under the 

natural and probable consequences doctrine and that he was 

convicted of first degree felony murder,2 for which he could not 

now be convicted because of changes to section 189, effective 

January 1, 2019. In particular, Young alleged he was not the 

actual killer; he did not, with the intent to kill, aid or abet 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 

2 Contrary to Young’s assertion in his opening brief, he did 

not allege in his petition he was convicted of murder under the 

natural and probable consequences doctrine. 
4

or felony; and the victim was not a peace officer in the 

performance of his or her duties. Young also requested counsel. 

The superior court, without appointing counsel, summarily 

denied Young’s petition. The court ruled: “The petitioner was 

convicted of 2 counts of first degree murder. The jurors were 

never instructed on the theory of felony murder nor on the theory 

of natural and probable consequence doctrine. [¶] In addition, 

the jury not only found the petitioner guilty of 2 counts of first 

degree murder but also found true[ ] the special circumstance 

under [section 190.2, subdivision (a)(3)], multiple murder. (See 

CALCRIM No. 721) In fact, by finding these allegations to be 

true, the jury had to have found that petitioner was the actual 

killer and if not the actual killer, acted with the intent to kill (see 

CALCRIM 702). [¶] Therefore, due to the jury’s findings as 

stated and pursuant to Penal Code section [189, 

subdivision (e)(1)], the petitioner has not made a prima facie 

showing and does not qualify for resentencing to Penal Code 

section 1170.95.”

Young then filed a motion for reconsideration, asking the 

trial court to “vacate its order denying the petition and issue an 

order vacating the convictions and sentences imposed on counts 1 

and 2.” He contended that the record demonstrated the jury was 

given “instructions that concerned the natural [and] probable 

consequence theory of guilt” and that “a finding of true on section 

[190.2, subdivision (a)(3),] does not amount to a finding of major 

participation or reckless indifference to human life, and thus does 

not preclude the petitioner from 1170.95 relief.” Young’s motion 

included, as exhibits, some of the jury instructions from his trial, 

including those on aiding and abetting, conspiracy, and first and 
5

second degree murder. The court denied the motion, and Young

timely appealed from the order denying his petition.

DISCUSSION

A. Senate Bill No. 1437 and the Section 1170.95 Petition 

Procedure

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, 

ch. 1015) (Senate Bill 1437) “eliminated natural and probable 

consequences liability for murder as it applies to aiding and 

abetting, and limited the scope of the felony-murder rule.”

(People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); see §§ 188, 

subd. (a)(3), 189, subd. (e); People v. Gentile (2020) 10 Cal.5th 

830, 842 [Senate Bill 1437 was enacted “‘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.’”].) “Senate Bill 1437 also added section 1170.95 to 

the Penal Code, which creates a procedure for convicted 

murderers who could not be convicted under the law as amended 

to retroactively seek relief.” (Lewis, at p. 957, fn. omitted; see 

Gentile, at p. 859.)

“Section 1170.95 envisions three stages of review of a 

petition for resentencing.” (People v. Wilson (2021) 

69 Cal.App.5th 665, 675; see Lewis, supra, 11 Cal.5th at 

pp. 959-960.) First, the petitioner “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 or murder 

under the natural and probable consequences doctrine[;] [¶] 

(2) The petitioner was convicted of first degree or second degree 
6

murder following a trial or accepted a plea offer in lieu of a trial 

at which the petitioner could be convicted of first degree or 

second degree murder[;] [¶] [and] (3) The petitioner could not be 

convicted of first or second degree murder because of changes to 

Section 188 or 189 made effective January 1, 2019.’” (Lewis, at 

pp. 959-960; see § 1170.95, subd. (a)(1)-(3).)

Second, if a petition under section 1170.95 contains all the 

required information, including a declaration by the petitioner 

that he or she was convicted of murder and is eligible for relief 

(§ 1170.95, subd. (b)(1)(A)), the court, after appointing counsel, 

must “assess whether the petitioner has made a ‘prima facie 

showing’ for relief.” (Lewis, supra, 11 Cal.5th at pp. 960, 963; see 

§ 1170.95, subd. (c); People v. Wilson, supra, 69 Cal.App.5th at 

p. 675; People v. Barboza (2021) 68 Cal.App.5th 955, 962.) “In 

determining whether the petitioner has carried the burden of 

making the requisite prima facie showing he or she falls within 

the provisions of section 1170.95 and is entitled to relief, the 

superior court properly examines the record of conviction, 

‘allowing the court to distinguish petitions with potential merit 

from those that are clearly meritless.’” (People v. Mancilla (2021) 

67 Cal.App.5th 854, 863.) The prima facie inquiry, however, is 

limited. The “‘“court takes petitioner’s factual allegations as true 

and makes a preliminary assessment regarding whether the 

petitioner would be entitled to relief if his or her factual 

allegations were proved.”’” (Lewis, at p. 971; see Barboza, at 

p. 962; People v. Duchine (2021) 60 Cal.App.5th 798, 813, 815;

People v. Drayton (2020) 47 Cal.App.5th 965, 980, disapproved on 

another ground in Lewis, at p. 963.) 

The court’s authority to resolve the petition at the prima 

facie stage “is limited to readily ascertainable facts from the 
7

record (such as the crime of conviction), rather than factfinding 

involving the weighing of evidence or the exercise of discretion 

(such as determining whether the petitioner showed reckless 

indifference to human life in the commission of the crime).” 

(People v. Drayton, supra, 47 Cal.App.5th at p. 980; see Lewis, 

supra, 11 Cal.5th at p. 972 [“at this preliminary juncture, a trial 

court should not engage in ‘factfinding involving the weighing of 

evidence or the exercise of discretion’”]; People v. Clayton (2021) 

66 Cal.App.5th 145, 153 [same]; People v. Harris (2021) 

60 Cal.App.5th 939, 958 [same], review granted Apr. 28, 2021, 

S267802.) “‘However, if the record, including the court’s own 

documents, “contain[s] facts refuting the allegations made in the 

petition,” then “the court is justified in making a credibility 

determination adverse to the petitioner.”’” (Lewis, at p. 971; 

accord, People v. Jenkins (2021) 70 Cal.App.5th 924, 932; see 

People v. Duchine, supra, 60 Cal.App.5th at p. 815 [“absent a 

record of conviction that conclusively establishes that the 

petitioner engaged in the requisite acts and had the requisite 

intent, the trial court should not question his evidence”].) 

Third, 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.’” (Lewis, supra, 11 Cal.5th at 

p. 960; see § 1170.95, subd. (d)(1); People v. Wilson, supra, 

69 Cal.App.5th at p. 675.) “At the hearing to determine whether 

the petitioner is entitled to relief, the burden of proof shall be on 
8

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

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

see Lewis, at p. 960.) The prosecutor and the petitioner may rely 

on the record of conviction or offer new or additional evidence. 

(§ 1170.95, subd. (d)(3); see Lewis, at p. 960.)

3

B. The Superior Court Erred in Not Appointing Counsel 

for Young, but the Error Was Harmless

Young argues the superior court erred in denying his 

petition without appointing counsel and in finding he had not 

made a prima case of eligibility for relief, including relief on his 

convictions for attempted murder.

4 The People concede, and we

3 In October 2021 the Legislature amended section 1170.95. 

Among other changes, the amendments (1) apply section 1170.95 

to convictions for voluntary manslaughter and attempted 

murder; (2) state the requirement to appoint counsel, if 

requested, in new subdivision (b)(3), rather than in 

subdivision (c); (3) affirm that the standard of proof at the

hearing on the order to show cause is proof beyond a reasonable 

doubt; and (4) clarify that “a finding there is substantial evidence 

to support a conviction for murder, attempted murder, or 

manslaughter is insufficient to prove, beyond a reasonable doubt, 

that the petitioner is ineligible for resentencing.” (See Stats. 

2021, ch. 551, § 2 (Senate Bill No. 775).) Because the Legislature 

did not pass these amendments as urgency legislation, they will 

become effective on January 1, 2022. (See Cal. Const., art. IV,

§ 8, subd. (c).)

4 In his opening brief, Young contended the superior court 

also erred by denying his petition based on the record of 

conviction. In his reply brief, however, he concedes the court’s 

reliance on the record of conviction was not error. (See Lewis, 

supra, 11 Cal.5th at pp. 970-971.) 
9

agree, the superior court erred in not appointing counsel. (See 

Lewis, supra, 11 Cal.5th at p. 963 [“petitioners who file a 

complying petition requesting counsel are to receive counsel upon 

the filing of a compliant petition”].) The People argue, however,

that the error was harmless and that the court did not err in 

finding Young failed to make a prima facie case for relief because 

the record of conviction shows Young is not eligible for relief as a 

matter of law. (See Lewis, at p. 974 [“a petitioner ‘whose petition 

is denied before an order to show cause issues has the burden of 

showing “it is reasonably probable that if [he or she] had been 

afforded assistance of counsel his [or her] petition would not have 

been summarily denied without an evidentiary hearing”’”].) The 

People are correct.

Although in his petition Young alleged he was convicted of 

murder under a no-longer-valid theory of felony murder, he 

contends on appeal the superior court erred in finding he was not 

eligible for relief under section 1170.95 because the trial court 

instructed the jury on a no-longer-valid theory of murder (and 

now attempted murder) under the natural and probable

consequences doctrine. Young points to two instructions: the first

on “first or second degree murder with malice aforethought” 

(CALCRIM No. 520), the second on “liability for conspirators’ 

acts” (CALCRIM No. 417). Because neither instructed the jury 

on a no-longer-valid theory of murder or attempted murder under 

the natural and probable consequences doctrine, the court’s error 

in not appointing counsel was harmless. (See People v. Daniel

(2020) 57 Cal.App.5th 666, 678 [error in not appointing counsel 

for the petitioner was harmless where the jury instructions 

showed he was convicted under a still-valid theory of murder], 

review dism. Dec. 1, 2021, S266336.)
10

1. The Instruction on Murder Did Not Include a 

No-longer-valid Theory Under the Natural and

Probable Consequences Doctrine

The trial court instructed the jury with CALCRIM No. 520

that Young was charged in counts 1 and 7 with murder and that 

to prove Young guilty the People had to prove Young “committed 

an act that caused the death of another person” and did so with 

“malice aforethought.” The instruction explained that there were

two kinds of malice aforethought, express malice and implied 

malice, and that the defendant acted with express malice if he 

unlawfully intended to kill. The defendant acted with implied 

malice, the instruction explained, “if: 

1. He intentionally committed an act; 

2. The natural and probable consequences of the act 

were dangerous to human life; 

3. At the time he acted, he knew his act was dangerous 

to human life; 

AND

4. He deliberately acted with conscious disregard for 

human life.”

The instruction stated that, if the jurors decided Young 

committed murder, it was murder of the second degree, unless 

the People proved it was murder of the first degree, as defined in 

a separate instruction. 

Although he is vague about it, Young appears to suggest 

the language in the second element of the implied malice

instruction was an instruction on a no-longer-valid theory under 

the natural and probable consequences doctrine. It was not. “It 

is true that the doctrine of implied malice has a ‘natural and 

probable consequences’ element.” (People v. Roldan (2020) 
11

56 Cal.App.5th 997, 1004, review granted Jan. 20, 2021, S266031; 

see People v. Gonzalez (2012) 54 Cal.4th 643, 653 [“[m]alice is 

implied when a person willfully does an act, the natural and 

probable consequences of which are dangerous to human life, and 

the person knowingly acts with conscious disregard for the 

danger to life that the act poses”].) But Senate Bill 1437 

“removed the natural and probable consequences doctrine as a 

basis for a murder conviction only insofar as it applied to aider 

and abettor liability. . . . [T]hat liability arose when ‘“‘a 

reasonable person in the defendant’s position would have or 

should have known that the charged offense was a reasonably 

foreseeable consequence of the act aided and abetted.’”’ 

[Citation.] In contrast to this vicarious liability, under which the 

mens rea of an aider and abettor towards the killing is irrelevant, 

the doctrine of implied malice requires that the perpetrator 

actually appreciate that death is the natural and probable 

consequence of his or her actions, and further requires that the 

perpetrator consciously disregard that danger. [Citations.] 

Senate Bill 1437 did nothing to remove implied malice as a basis 

for a second degree murder conviction.” (Roldan, at 

pp. 1004-1005; see People v. Rivera (2021) 62 Cal.App.5th 217, 

231-232 [“implied malice is based on ‘the “natural and probable 

consequences” of a defendant’s own act,’” and although Senate 

Bill 1437 “‘abolished the natural and probable consequences 

doctrine’ as a theory of vicarious liability, ‘it maintained the 

viability of murder convictions based on implied malice, and the 

definition of implied malice remains unchanged’”], review 

granted June 9, 2021, S268405; People v. Clements (2021) 

60 Cal.App.5th 597, 618 [“Senate Bill No. 1437 amended section 

188 to require the prosecution to prove that all principals to a 
12

murder acted with malice aforethought. [Citation.] Though this 

change abolished the natural and probable consequences 

doctrine, it maintained the viability of murder convictions based 

on implied malice, and the definition of implied malice remains 

unchanged.”], review granted Apr. 28, 2021, S267624; People v. 

Daniel, supra, 57 Cal.App.5th at p. 677, fn. 4 [in “defining 

implied malice, CALCRIM No. 520 mentions the concept of the 

‘natural and probable consequences’ of a defendant’s own act,” 

whereas the “natural and probable consequences doctrine 

abolished by Senate Bill No. 1437 . . . is a theory of vicarious 

liability”]; People v. Garcia (2020) 57 Cal.App.5th 100, 117

[Senate Bill 1437 “did not repeal the law imposing criminal 

liability for implied malice murder”], review granted Feb. 10, 

2021, S265692.) 

2. The Instructions on Conspiracy Did Not Include 

a No-longer-valid Theory Under the Natural 

and Probable Consequences Doctrine 

The trial court instructed the jury with CALCRIM No. 416

that the People had presented evidence of a conspiracy and that a 

member of a conspiracy is criminally responsible for the acts of 

any other member of the conspiracy performed to help accomplish 

the goal of the conspiracy. The trial court stated that, to prove a 

defendant was a member of a conspiracy in this case, the People 

had to prove, among other things, that “[t]he defendant intended

to agree and did agree with one or more other co-participants to 

commit murder” and that, “[a]t the time of the agreement, the 

defendant and one or more [of] the other alleged members of the 

conspiracy intended that one or more of them would commit 

murder.” The court explained that “[t]he People must prove that 
13

the members of the alleged conspiracy had an agreement and 

intent to commit murder” and that the jury “must decide as to 

each defendant whether he or she was a member of the alleged 

conspiracy.” 

The court then instructed the jury with CALCRIM No. 417

that, in addition to having criminal responsibility for the crimes 

he or she conspires to commit, a member of a conspiracy “is also 

criminally responsible for any act of any member of the 

conspiracy if that act is done to further the conspiracy and that 

act is a natural and probable consequence of the common plan or 

design of the conspiracy.” “To prove that a defendant is guilty of 

the crimes charged in counts one through six,” the court 

instructed the jury, “the People must prove that:

1. The defendant conspired to commit one of the 

following crimes: murder; 

2. A member of the conspiracy committed attempted 

murder to further the conspiracy; 

AND

3. Attempted murder was a natural and probable 

consequence of the common plan or design of the crime that the 

defendant conspired to commit.” 

Young suggests the “natural and probable consequence” 

language in CALCRIM No. 417 was an instruction on a nolonger-valid theory of murder and attempted murder under the 

natural and probable consequences doctrine. But the conspiracy 

on which the trial court instructed the jury was a conspiracy to 

commit murder (albeit a conspiracy to commit murder generally, 

not a conspiracy to murder a particular person). To find Young 

liable as a conspirator for the offenses charged in counts 1 

through 6, therefore, the jury had to find he agreed and intended 
14

to commit the target offense of murder. Attempted murder and a 

conspiracy to commit murder share the requirement of an intent 

to kill. (People v. Juarez (2016) 62 Cal.4th 1164, 1169-1170; see

id. at p. 1174 [“The element of attempted murder that is missing 

from conspiracy to commit murder is a direct but ineffectual act 

toward accomplishing the intended killing.”].)

5 Which means the 

instructions did not permit the jury to convict Young on the 

murder and attempted murders charged in counts 1 through 6 

under the natural and probable consequences doctrine because 

that doctrine “applies to unintended, nontarget offenses.” (People 

v. Medrano (2021) 68 Cal.App.5th 177, 185; see People v. Beck 

and Cruz (2019) 8 Cal.5th 548, 645 [because the defendants 

“were charged with conspiracy to murder, not conspiracy to 

commit a lesser crime that resulted in murder,” there was “no 

possibility they were found guilty of murder on a natural and 

probable consequences theory”]; Medrano, at pp. 183-184 [“in 

convicting [the defendant] of first degree murder, the jury did not 

rely on the natural and probable consequences doctrine because it 

found him guilty of conspiracy to commit first degree murder”].) 

Put differently, the instructions here did not permit the 

jury to find Young guilty of murder or attempted murder under a 

conspiracy theory without finding he intended to kill. (See People 

v. Swain (1996) 12 Cal.4th 593, 607 [“a conviction of conspiracy to 

commit murder requires a finding of intent to kill”].) That 

removes the theory of conspiracy liability presented to the jury on 

counts 1 through 6 from those theories invalidated by Senate 

5 There is no such thing as a conspiracy in which the target 

offense is attempted murder. (See People v. Iniguez (2002) 

96 Cal.App.4th 75, 79 [conspiracy to commit attempted murder is 

a “legal falsehood”].) 
15

Bill 1437. (See Lewis, supra, 11 Cal.5th at p. 959 [“the

Legislature passed Senate Bill 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’” (italics 

added)]; People v. Farfan (Nov. 19, 2021, B309786)

___ Cal.App.5th ___, ___ [2021 WL 5409896, p. 1] [a finding the 

defendant acted with intent to kill establishes he is “ineligible for 

section 1170.95 relief as a matter of law”].)6

DISPOSITION

The order denying Young’s section 1170.95 petition is

affirmed.

SEGAL, J. 

We concur: 

PERLUSS, P. J. FEUER, J.

6 That the conspiracy the trial court instructed on here was 

one to commit murder, rather than a conspiracy to commit a 

lesser offense that resulted in murder or attempted murder, 

distinguishes this case from the case on which Young principally 

relies, People v. Offley (2020) 48 Cal.App.5th 588. In that case, 

the prosecution relied on a theory of conspiracy to commit assault 

with a firearm. (See id. at p. 599.)