Filed 11/15/23 P. v. Jackson CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

LYNDELL TYRONE JACKSON 

et al.,

Defendants and Appellants.

 B317684

 (Los Angeles County

 Super. Ct. No. A968974)

APPEAL from orders of the Superior Court of Los Angeles 

County, Stephen A. Marcus, Judge. Affirmed. 

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant Lyndell Tyrone Jackson.

Waldemar D. Halka, under appointment by the Court of 

Appeal, for Defendant and Appellant Vincent Burks.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Daniel C. Chang, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

This is an appeal from the denial of petitions for 

resentencing relief under Penal Code section 1172.6.1 In 1988, 

confederates of petitioners Lyndell Tyrone Jackson and 

Vincent Burks shot Latonjyia Stover and Jamee Finney to 

death.2 Respondent describes this case as “an apparent case of 

mistaken identity” because Stover and Finney were not 

connected to the drug dealer who cheated Jackson’s and Burks’ 

confederates in the drug transaction that was the catalyst for the 

murders. 

In 1991, a jury convicted petitioners of, among other 

crimes, one count of the first degree murder of Stover and found 

true murder while kidnapping and multiple murder special 

circumstances. The jury also convicted petitioners of one count of 

the second degree murder of Finney. Petitioners sought 

resentencing of both murder convictions after the Legislature 

amended the definition of murder to eliminate the natural and 

probable consequences doctrine, circumscribe those who could be 

convicted of felony murder, and with the exception of felony 

murder, prohibit a murder conviction based on imputed malice. 

With respect to the first degree murder of Stover, the 

resentencing court found both petitioners failed to establish a 

prima facie case of eligibility for resentencing. We agree. As a 

matter of law, the record of conviction shows that the jury 

1 Undesignated statutory citations are to the Penal Code. 

As explained in our Discussion, part A, post, section 1172.6 

originally was numbered 1170.95. Except as necessary for 

historical accuracy, we refer to the statute by its current number 

of section 1172.6.

2 The resentencing court concluded petitioners were not 

the actual shooters. 
3

concluded each petitioner intended to aid and abet the Stover 

murder. Because the record shows the jury found each petitioner 

intended to kill, petitioners cannot demonstrate that they 

“ ‘could not be convicted of first or second degree murder because 

of changes to Section 188 or 189 made effective January 1, 

2019’ ”—an element of a prima facie case for resentencing under 

section 1172.6. (People v. Gentile (2020) 10 Cal.5th 830, 847

(Gentile).)

With respect to the second degree murder conviction of 

Finney, the resentencing court held an order to show cause 

hearing (§ 1172.6, subd. (d)(3)) at which no party presented new 

evidence. The resentencing court found the People had 

demonstrated beyond a reasonable doubt that petitioners were 

guilty of murder under the current definition of murder. We 

agree. Petitioners’ argument that the resentencing court applied 

the wrong standard of proof is not consistent with the record. We 

also reject Burks’s challenge to the sufficiency of evidence 

supporting the resentencing court’s conclusion that he aided and 

abetted the Finney murder with intent to kill. 

With respect to the Finney murder, Jackson does not 

challenge the sufficiency of evidence to support the resentencing 

court’s finding that he committed felony murder as defined by 

current law. Instead, he argues that the resentencing court 

could not rely on a felony murder theory based on kidnapping, 

which was not a qualifying underlying felony when he was 

convicted, without violating (1) the constitutional prohibition 

against ex post facto application of the law and placing him in 

double jeopardy, (2) his right to due process of law, and 

(3) principles of collateral estoppel and law of the case. None of 

these doctrines or constitutional prohibitions applies here 
4

because a resentencing hearing is not a second prosecution but 

instead, an occasion for lenity, and the resentencing court did not 

relitigate his premeditated first degree murder acquittal.

In sum, we affirm the resentencing court’s order denying 

Burks’s and Jackson’s petitions for resentencing. 

BACKGROUND

1. Procedural background

In the appeal from the judgment of conviction,

3 we 

described the procedural background, which we now summarize. 

Co-defendants Vincent Burks, Deautri Cosslolo Denard, Lyndell 

Tyrone Jackson, Dayon Darren Lively, and John Jay Porter were 

convicted “by jury of kidnapping for ransom with bodily harm 

(count 1), first degree murder (count 9 [Stover]) and second 

degree murder (count 10 [Finney]) with multiple murder and 

murder while kidnapping special circumstances, shooting into an 

inhabited dwelling (count 11), and assault with a firearm 

(count 12, a lesser included crime of attempted murder).” (People 

v. Denard et al. (Oct. 12, 1995, B066109) [nonpub. opn.] at p. 2.) 

Before finding them guilty of the second degree murder of Finney, 

the jury found Jackson, Burks, Denard, Porter, and Lively not 

guilty of the first degree murder of Finney. The trial court 

instructed the jury that the special circumstances applied only to 

a first degree murder, and the jury found the murder while

kidnapping and multiple murder special circumstances true with 

3 Section 1172.6, subdivision (d)(3) permits consideration 

of “the procedural history of the case recited in any prior 

appellate opinion.” 
5

respect to the first degree murder of Stover.4 The jury also 

convicted petitioners of kidnapping for ransom.

2. Evidence at defendants’ 1991 trial

The trial record comprises more than 100 reporters’ 

transcripts. We summarize only the evidence relevant to the 

issues on appeal. 

a. Events preceding the shooting

The evidence showed that on May 9, 1988, Kelly Davis (also 

known as Kelly Timmons) brokered a drug deal between her 

friend John Porter and her former boyfriend Buford (“B.J.”) 

Bates. Unbeknownst to Davis, Bates substituted flour for 

cocaine. When Porter and co-defendant Denard learned of the 

substitution, they forced Davis at gunpoint into the home of 

Porter’s mother. Davis unsuccessfully tried to reach Bates, and 

4 The jury did not convict another co-defendant, Meredith 

Carter, of murder but only of false imprisonment. There were

other charged crimes, which we described in our prior appeal: “In 

addition to the crimes described above, Burks, Denard, Jackson, 

and Lively were tried for forcible oral copulation and 2 counts of 

forcible rape, all in concert, of Ms. [Davis] in the apartment 

(counts 2–4). The jury was unable to reach verdicts on 

counts 2-4, which were dismissed. The jury acquitted Burks and 

Denard of forcible oral copulation and rape of Ms. [Davis], in 

concert, in the apartment (counts 5–6). The jury acquitted Lively 

of forcibly raping Ms. [Davis] in the apartment (count 7). Before 

instructions and argument, the prosecution dismissed count 8, 

which charged all the defendants with conspiracy to commit 

murder, but argued the case on an uncharged conspiracy theory. 

The jury also acquitted the five male defendants of premeditated 

attempted murder of Anthony Milner . . . (count 13.)” (People v. 

Denard et al., supra, at p. 7.)
6

telephoned her brother, Roland Timmons, asking him to call 

Bates. Denard told Timmons that Davis could not leave until 

Bates returned the money from the cocaine purchase.

Denard called co-defendant Lively and reported what 

happened with the drug deal. Lively came to the house where 

Porter and Denard were holding Davis captive. Pointing a gun at 

Davis, Denard forced her into a beige Jeep, which Lively, Denard,

and Porter also entered. Burks already was seated in the Jeep.

Lively, Denard, Porter, and Burks transported Davis to an 

apartment, and about 10 minutes later, Jackson arrived at the 

apartment. 

Denard asked Davis about B.J. Bates and his family, and 

she told Denard where B.J. Bates lived and the type of vehicle he

drove. Davis also told Denard about Bates’s sister—Nina

Bates—and specifically that Nina drove a red Hyundai. Burks 

and Jackson were present in the apartment when Davis 

described B.J. and his sister Nina.

Porter and Burks left the apartment to purchase bullets 

and the two returned with 10 to 15 boxes of bullets. They put the 

boxes of bullets on the coffee table. Denard said that they should 

try to “find B.J.” Then Burks, Porter, and Lively donned plastic

gloves, wiped their guns, and each loaded a gun with bullets. 

Jackson did not have a gun. Lively said, “[A]ll about killing. 

That’s right. We dangerous people. That’s right. Got to do what 

we got to do to survive. That is our money. We got to go get our 

money.” According to Davis, everyone agreed with Lively. 

Denard passed out ski masks to Burks, Porter, and Lively,

and Denard put a mask in his pocket. Denard announced they 

were going to find B.J. and “were going to kill him.” Lively said,
7

“[G]oing to get the sister. Kill the sister.” Burks, Porter, Denard,

and Lively left the apartment. 

b. Events in the apartment after Burks, Porter, 

Denard, and Lively leave

Prior to leaving, Denard asked Jackson and others at the 

apartment (including co-defendant Carter) to guard Davis.

Jackson remained in the apartment. Jackson tied Davis’s hands 

and feet together with a phone cord and put a paper bag over her 

head while telling her that she was seeing too much. 

When Davis attempted to get the attention of a person 

outside the apartment through a window, Carter threw her to the 

floor and kicked her. Jackson then grabbed Davis from the floor 

and pushed her against a wall causing her to hit her head.

c. The shootings of Stover and Finney

Shortly before the shooting, Stover and Finney were 

talking to a friend, who was outside, as Stover and Finney sat in 

Stover’s red Pontiac LeMans. They noticed two Jeeps, one blue 

and the other beige, traveling in one direction. The Jeeps were 

traveling fast but slowed down, and the drivers of both Jeeps 

looked at Stover and Finney. The drivers were wearing black 

beanie caps, black jackets, and dark black glasses. Stover told 

her friend to “get home and go in the house, somebody is about to 

get gatted.” Stover and Finney then drove away. Two to three 

minutes later, the blue Jeep passed the same spot traveling in 

the opposite direction. The beige Jeep later followed. 

After seeing the Jeeps pass the second time, Stover’s and 

Finney’s friend heard gunshots. The gunshots lasted about 15 or 

20 seconds and came from different guns. Stover and Finney 

were seated in the red Pontiac at a stop sign. Their car was still 
8

running after the shooting. An eyewitness saw a blue vehicle 

skid away from the location of the shooting “real fast” followed by 

another vehicle, which the eyewitness described as a yellow 

Cadillac.

Another eyewitness observed the shooting from her home 

and saw a tan Wagoneer at the scene of the shooting. She saw 

the people inside the tan Wagoneer (which she also referred to as 

a Jeep), who were wearing a black beanie, black glasses, and 

black shirts.

Nina Bates also saw the blue and beige Jeeps before she 

heard gunshots. The Jeeps were in Nina Bates’s neighborhood.

One Jeep was right behind the other. She saw the occupants of 

the blue Jeep pull down ski masks. Nina was concerned and told 

her friends, “[T]here was some people in the neighborhood.” Nina 

observed both Jeeps drive past her another time. Nina testified 

that her ex-boyfriend told her that he saw “the Jeeps that did it” 

in referring to the “girls” who were dead.5

A detective collected shell casings from two different guns 

at the scene of the shooting.

d. Events after the shooting

When Denard, Burks, Lively, and Porter returned to the 

apartment where Jackson had been guarding Davis, Denard said,

“Oh, man, we shot them bitches. We got them bitches.” “We got 

them bitches. We pumped the[m] full of lead.” Denard said that 

the victims were in a red car. Denard referred to shooting Bates’s 

5 It appears that exhibits at trial showed Nina Bates’s

location when she saw the jeeps. These exhibits are not included 

in the record before us. Nina Bates was not at the location of the 

shooting when it occurred, but she went there later that day.
9

sister. Burks called his mother and said, “Mama, you get out the 

house, we fixin’ to go to jail, we just killed these two girls.”

Afterwards, Denard said, “[W]e were following them, 

chasing them down St. Andrews, and we rammed them on the 

side of the car up into the corner of the street . . . . [a]nd they 

were hollering and screaming.” Denard continued: “And we 

opened the . . . hatchback . . . and we just shot, we just came at 

them, bam, we just got them all at one time.” Denard said that 

the victims “were hollering and screaming and moving to the left 

and moving to the right and jerking and trying to get away.”

Burks, Lively, Jackson, and Porter were present when Denard 

made these statements. Burks, Porter, and Lively returned their 

gloves to a plastic bag and put the bag in a closet.

Porter asked Jackson “what had happened” to Davis, and 

Jackson said that Davis “tried to get away” and “[w]e had to fuck 

her up.”

3. Instructions

a. Aiding and abetting

The court instructed the jury that “[a] person aids and 

abets the commission or attempted commission of a crime when 

he or she, [¶] (1) with knowledge of the unlawful purpose of the 

perpetrator and [¶] (2) with the intent or purpose of committing, 

encouraging, or facilitating the commission of the crime, by act or 

advice aids, promotes, encourages or instigates the commission of 

the crime.”

The court instructed the jury on natural and probable 

consequences as follows: “One who aids and abets is not only 

guilty of the particular crime that to his or her knowledge his or 

her confederates are contemplating committing, but he or she is 
10

also liable for the natural and probable consequences of any 

criminal act that he or she knowingly and intentionally aided and 

abetted. You must determine whether the defendant is guilty of 

the crime originally contemplated, and, if so, whether the crimes 

charged were a natural and probable consequence of such 

originally contemplated crime.”

The court further instructed the jury: “Merely assenting to 

or aiding or assisting in the commission of a crime without 

knowledge of the unlawful purpose of the perpetrator and 

without the intent or purpose of committing, encouraging or 

facilitating the commission of the crime is not criminal. Thus a 

person who assents to, or aids, or assists in, the commission of a 

crime without such knowledge and without such intent or 

purpose is not an aider and abettor in the commission of such 

crime.” 

b. Conspiracy

The jury instruction on conspiracy provided in pertinent 

part: “A conspiracy is an agreement between two or more 

persons with the specific intent to agree to commit a public 

offense, and with the further specific intent to commit such 

offense, followed by an overt act . . . for the purpose of 

accomplishing the object of the agreement. Conspiracy is a crime,

but is not charged as an offense in the information in this case.”

The court also instructed the jury: “A member of a conspiracy 

is not only guilty of the particular crime that to his or her 

knowledge his or her confederates are contemplating committing, 

but is also liable for the natural and probable consequences of 

any act of a co-conspirator to further the object of the conspiracy, 

even though such act was not intended as a part of the original 
11

plan and even though he or she was not present at the time of the 

commission of such act. 

c. Murder

The court instructed that murder requires proof of the 

following elements: “1. A human being was killed. [¶] 2. The 

killing was unlawful, and [¶] 3. The killing was done with 

malice aforethought.” The court instructed the jury on express 

and implied malice.

For first degree murder, the jury was instructed on 

deliberate and premeditated murder.

With respect to second degree murder, the court instructed 

the jury on “unpremeditated murder of the second degree,”

“second degree murder [based on a] killing resulting from [an]

unlawful act dangerous to life,” second degree murder based on a 

conspiracy “to commit a felony inherently dangerous to human 

life,” and second degree felony murder based on several 

underlying felonies including kidnapping. (Boldface & 

capitalization omitted.) 

d. Special circumstances

The jury was instructed on three special circumstances—

murder for financial gain, murder while kidnapping or 

kidnapping for ransom, and multiple murder convictions. By way 

of introduction to these special circumstances, the court 

instructed the jury: “If you find a defendant in this case guilty of 

murder of the first degree, you must then determine if one or 

more of the following special circumstances are true or not true: 

[¶] 1. The murder was committed for financial gain; [¶] 2. The 

murder was committed while the defendant was engaged in the 
12

commission of the crime of Kidnapping for Ransom or 

Kidnapping; and [¶] 3. Multiple murder convictions.”

The introductory instruction also provided: “If you find 

that a defendant was not the actual killer of a human being, or if 

you are unable to decide whether the defendant was the actual 

killer or an aider and abettor or co-conspirator, you cannot find 

the special circumstance to be true as to that defendant unless 

you are satisfied beyond a reasonable doubt that such defendant 

with the intent to kill aided and abetted, any actor in the 

commission of the murder in the first degree.” The court further 

instructed the jury that the jury “must decide separately each 

special circumstance alleged in this case as to each defendant” 

and “must agree unanimously.” Thus, the multiple murder 

special circumstance and murder while kidnapping special 

circumstance instructions required the jury to find the defendant 

was either the “actual killer” or “with the intent to kill, aided and 

abetted any actor in the commission of murder in the first 

degree.”

4. Appeal from the judgment of conviction

We affirmed petitioners’ judgments of conviction. (People v. 

Denard, supra, B066109.) Rejecting petitioners’ arguments to 

the contrary, we concluded sufficient evidence supported the 

jury’s verdict that the murders occurred while defendants were 

engaged in kidnapping for ransom. (Id. at p. 11.) We held 

substantial evidence supported the kidnapping murder special 

circumstance. (Id. at p. 12.) 

We rejected Jackson’s argument that “because the other 

four male defendants did not announce they were going to kill 

Nina Bates as they left the apartment,” he could not be liable for 

Stover’s first degree murder. (People v. Denard, supra, B066109,
13

at p. 14.) We explained: Defendants “repeatedly threatened to 

kill Ms. [Davis], Bates, Bates’ sister Nina, other Bates family 

members, Timmons [also known as Davis], and Timmons’ [also 

known as Davis’s] relatives. They announced upon their return 

that they had killed Nina Bates, although not by name. They 

made clear they would carry out their threats unless their 

demands were met. Substantial evidence supports the inference 

that Jackson shared these intents and his first degree murder 

conviction.” (Ibid.) 

5. Jackson and Burks petition for resentencing 

and the resentencing court denies their petitions

On January 14, 2019, Jackson filed a resentencing petition

pursuant to former section 1170.95. On February 14, 2019, 

Burks filed a resentencing petition also pursuant to former 

section 1170.95. The judge hearing these petitions was not the 

trial judge. The court appointed counsel for petitioners and 

allowed briefing.

The resentencing court denied the petitions.6 With respect 

to the Stover murder (count 9), the court found petitioners had 

failed to make a prima facie showing of eligibility for 

resentencing. Among other reasons, the court found the record of 

conviction showed petitioner directly aided and abetted with 

intent to kill.

With respect to the Finney murder (count 10), the 

resentencing court conducted a hearing at which no party 

presented new evidence. We now detail the court’s findings from 

6 Appellants contend the resentencing court applied the 

wrong standard of proof in denying their petitions. We address 

this argument in our Discussion, part B, post. 
14

that hearing. “[E]ach of the defendants aided and abetted the 

murder of the victim Jam[e]e Finney in their own individual 

ways.” “The defendants repeatedly threatened to kill 

Ms. Timmons [also known as Davis], Bates, Bates[’] sister, Nina, 

[and] other Bates family members . . . .” “They announced upon 

their return that they had killed Nina Bates, although not by 

name. “[T]here was testimony that both Jeeps were in the area 

of the shooting where Stover and Finney were killed.” All four 

men in the Jeeps were aiding and abetting. “They’re cutting off 

the car. They’re chasing the car.” Denard sent Burks and Porter 

to get ammunition. “[T]he reasonable inference is Burks and 

Porter got ammunition so that they could kill Nina Bates and 

members of her family.” Lively and Denard made statements 

about killing in the presence of Burks and Jackson. The 

resentencing court indicated that Burks aided and abetted by 

purchasing the bullets. Prior to the killings, Denard announced 

that they were going to kill Bates, and the four men including 

Burks left the apartment armed. Among others, Burks called his 

mother and told her to avoid retaliation because they had killed 

Nina Bates. 

The resentencing court noted the “weakest case is against 

Jackson because he’s not one of the four people in the Jeeps 

hunting Nina Bates. However, he is there when they made the 

statements they’re going to retaliate against Bates. He is there 

when the four armed defendants leave to carry out the mission, 

and he aids and abets the mission by guarding Timmons [also 

known as Davis]. It is the court’s finding that he did have an 

intent to kill and that his role, although he was not present for 

the shooting, it still makes him subject to second degree murder, 

based on an aiding and abetting with the intent to kill.”
15

With respect to Jackson, the resentencing court further 

explained: “Jackson stays behind in the apartment with 

Ms. Carter to guard Kelly Timmons [also known as Davis], to 

make sure she could not contact the police or her family or the 

Bates family to warn them of the impending attack. This is 

Jackson’s conduct that aids and abets the murder of Ms. Finney. 

[¶] The plan to murder Nina Bates doesn’t work without Jackson 

performing his role of watching and guarding Kelly Timmons 

[also known as Davis]. In fact, at one point Kelly Timmons [also 

known as Davis] tries to yell to somebody [on] the outside on the 

street, and they beat her unmercifully at that time.” After the 

shootings, the petitioners bragged about killing Nina Bates.

The resentencing court also found Jackson and Burks could 

be convicted today of felony murder because they were major 

participants and acted with reckless indifference to human life.

The court stated the defendants, including Burks and Jackson, 

could be convicted of conspiracy to commit murder as well. The 

court found petitioners were not the actual shooters; Denard and 

Porter were the shooters.

DISCUSSION

A. The Resentencing Law

Prior to 2019, a jury could convict a defendant of murder 

under the felony-murder rule and the natural and probable 

consequences doctrine without finding malice. Under the felonymurder rule as it existed before 2019, malice was imputed if the 

defendant intended to commit the underlying qualifying felony. 

(People v. Chun (2009) 45 Cal.4th 1172, 1184 [“ ‘The felonymurder rule imputes the requisite malice for a murder conviction 

to those who commit a homicide during the perpetration of a 
16

felony inherently dangerous to human life.’ ”].) Under the 

natural and probable consequences doctrine, as it existed before 

2019, an aider and abettor could be held liable for any offense 

that was the natural and probable consequence of the crime aided 

and abetted. (People v. Chiu (2014) 59 Cal.4th 155, 158

[describing former law].) 

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 

Reg. Sess.) (Stats. 2018, ch. 1015, §§ 2–4) modified the law 

relating to accomplice liability for murder, eliminating the 

natural and probable consequences doctrine as a murder theory

(Gentile, supra, 10 Cal.5th at pp. 842–843), and more narrowly 

defining felony murder. (People v. Strong (2022) 13 Cal.5th 698, 

703 (Strong); §§ 188, subd. (a)(3), 189, subd. (e)(3)). With respect 

to the former modification, “to amend the natural and probable 

consequences doctrine, Senate Bill 1437 added section 188, 

subdivision (a)(3) (section 188(a)(3)): ‘Except [for felony-murder 

liability] as stated in subdivision (e) of Section 189, in order to be 

convicted of murder, a principal in a crime shall act with malice

aforethought. Malice shall not be imputed to a person based 

solely on his or her participation in a crime.’ ” (Gentile, at 

pp. 842–843.)

Senate Bill No. 1437 also added former section 1170.95

providing the procedure for a defendant convicted of felony 

murder or murder based on the natural and probable 

consequences doctrine to request resentencing relief. (Gentile, 

supra, 10 Cal.5th at p. 843.) 

Effective January 1, 2022, Senate Bill No. 775 (2021–2022 

Reg. Sess.) (Senate Bill No. 775) (Stats. 2021, ch. 551, § 2) 

amended section 1170.95. In addition to convictions based on the 

natural consequences and felony murder doctrines, persons 
17

convicted on a “theory under which malice is imputed to a person 

based solely on that person’s participation in a crime” are eligible 

for resentencing relief. (§ 1172.6, subd. (a); see also former 

§ 1170.95, subd. (a).) The bill clarified that persons convicted of 

attempted murder or manslaughter also may petition for 

resentencing. (People v. Whitson (2022) 79 Cal.App.5th 22, 30.) 

It further clarified that the burden of proof applicable in the

evidentiary hearing is beyond a reasonable doubt. (People v. 

Owens (2022) 78 Cal.App.5th 1015, 1020–1021.) The Legislature 

then renumbered former section 1170.95 to section 1172.6 

without substantive change. (Strong, supra, 13 Cal.5th at p. 708,

fn. 2, citing Stats. 2022, ch. 58, § 10.) 

Section 1172.6 describes a multipart process for 

resentencing petitions. The first step is making a prima facie 

case for relief. “When the trial court receives a petition 

containing the necessary declaration and other required 

information, the court must evaluate the petition ‘to determine 

whether the petitioner has made a prima facie case for relief.’

[Citation.] If the petition and record in the case establish 

conclusively that the defendant is ineligible for relief, the trial 

court may dismiss the petition.” (Strong, supra, 13 Cal.5th at 

p. 708.) When evaluating a petition, the resentencing court may 

consider the record of conviction. (People v. Lewis (2021) 

11 Cal.5th 952, 972.) 

If the petitioner makes a prima facie case for relief, the 

court must issue an order to show cause. (§ 1172.6, subd. (c).) “If 

there has been ‘a prior finding by a court or jury that the 

petitioner did not act with reckless indifference to human life or 

was not a major participant in the felony, the court shall vacate 

the petitioner’s conviction and resentence the petitioner.’
18

[Citation.] Additionally, the parties may stipulate that the 

petitioner is eligible for resentencing. [Citation.] Otherwise, the 

court must hold an evidentiary hearing at which the prosecution 

bears the burden of proving, ‘beyond a reasonable doubt, that the 

petitioner is guilty of murder or attempted murder’ under state 

law as amended by Senate Bill 1437. (§ 1172.6, subd. (d)(3).)” 

(Strong, supra, 13 Cal.5th at pp. 708–709.) 

B. As a Matter of Law, Petitioners Are Ineligible for 

Resentencing Relief for the First Degree Murder of 

Stover

To recap, the resentencing court found petitioners failed to 

show a prima facie case of eligibility for resentencing on their 

first degree murder convictions for Stover’s murder. Burks 

argues this was error because the instructions “allowed the jury 

to impute malice to Burks based on his participation in 

kidnapping for ransom, kidnapping, shooting at an inhabited 

dwelling, and/or discharging a firearm from a motor vehicle.” He 

further argues the instructions on aiding and abetting and 

conspiracy did not clearly specify the required mens rea. 

Burks implicitly argues that in addition to considering his 

mens rea, a prima facie case for resentencing relief requires the 

resentencing court to consider whether he committed the actus 

reus for murder and whether the instructions showed as a matter 

of law, that he committed a first degree premeditated murder. 

Jackson joins in Burks’s arguments. We conclude none has 

merit. 
19

1. The requirements for a prima facie case

Pursuant to section 1172.6, subdivision (a), a petitioner 

makes a prima facie case for resentencing when all of the 

following conditions apply:

“(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.

“(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.”

Conversely, “[a] petitioner is ineligible for resentencing as a 

matter of law if the record of conviction conclusively establishes, 

with no factfinding, weighing of evidence, or credibility 

determinations,” that among other things, “the petitioner acted 

with malice aforethought that was not imputed based solely on 

participation in a crime.” (People v. Lopez (2022) 78 Cal.App.5th 

1, 14.) “Senate Bill 1437 relief is unavailable if the defendant 

was either the actual killer, acted with the intent to kill, or ‘was a 

major participant in the underlying felony and acted with 

reckless indifference to human life, as described in subdivision (d) 

of [Penal Code] Section 190.2.’ [Citations.]” (Strong, supra, 

13 Cal.5th at p. 710.) 
20

2. Petitioners cannot establish a prima facie case 

because the jury’s true findings regarding the 

murder special circumstances show, as a matter 

of law, they acted with intent to kill

We review de novo the legal question whether petitioners 

are ineligible for relief as a matter of law. (People v. Lopez, 

supra, 78 Cal.App.5th at p. 14.)

Some of the 1991 jury instructions from Burks’s and 

Jackson’s trial would now be incorrect under the current 

definitions of murder described in part A of our Discussion, ante. 

Based on these instructions, Burks argues, with Jackson joining, 

that the jury could have convicted them under the natural and 

probable consequences doctrine (a no longer valid murder theory) 

and second degree felony murder (a crime that no longer exists 

and did not include all current elements of felony murder). We 

agree with Burks only insofar as he argues some instructions 

theoretically would have allowed the jury to impute malice based 

on his participation in other crimes. 

We, however, do not address these instructions because the 

murder while kidnapping special circumstance instruction 

demonstrates that the jury necessarily found Burks and Jackson

harbored express malice with respect to the Stover murder. The 

murder while kidnapping special circumstance instruction 

provided: “If you find that the defendant was not the actual 

killer of a human being, or if you are unable to decide whether 

the defendant was the actual killer, or an aider and abettor or 

co-conspirator, you cannot find the special circumstance to be 

true as to that defendant unless you are satisfied beyond a 

reasonable doubt that such defendant, with the intent to kill, 

aided and abetted any actor in the commission of murder in the 
21

first degree.” (Italics added.) The multiple murder special 

circumstance instruction contained the same language as above, 

including the italicized language.

Burks and Jackson were not the actual killers. The special 

circumstance instructions and the jury’s true findings 

demonstrate the jury found Burks and Jackson intended to kill 

and were not convicted based on imputed malice but rather, 

express malice. Accordingly, petitioners have failed to establish a 

prima facie case for resentencing relief. (People v. Estrada (2022) 

77 Cal.App.5th 941, 945 [petitioner was ineligible for relief where 

instructions showed that the jury found petitioner acted with 

intent to kill].) 

People v. Bentley (2020) 55 Cal.App.5th 150 supports our 

conclusion. In Bentley, the jury found true a special circumstance 

allegation “that the murder ‘was intentional and perpetrated by 

means of discharging a firearm from a motor vehicle, 

intentionally at another person . . . with the intent to inflict 

death.’ [Citation.]” (Id. at p. 152.) The appellate court explained 

that “[w]hen the jury found the special circumstance allegation 

true with regard to appellant, it found that he aided and abetted 

the shooter ‘with the intent to kill . . . .’ [Citation.]” (Id. at 

p. 154.) The appellant thus could be convicted of murder under 

the current definition of murder. (Ibid.) 

Although Burks argues, with Jackson joining, that the 

resentencing court should have reconsidered its conclusion in 

light of Senate Bill No. 775, which added convictions based on “a 

theory of imputed malice” to bases for resentencing, we have 

considered petitioners’ eligibility de novo, taking into account the 

amended statute. Because petitioners are ineligible for relief 
22

under the amended statute as well, there is no reason to remand 

for further proceedings. 

3. Petitioners’ cited recent case law is inapposite 

to dispel the conclusion that the jury’s true 

special circumstance findings are fatal to their 

petitions as to the Stover murder

Petitioners rely on People v. Pacheco (2022) 76 Cal.App.5th 

118 (Pacheco)

7 and In re Lopez (2023) 14 Cal.5th 562 (Lopez) to 

argue that the special circumstance instructions did not inform 

the jury of the actus reus of murder or of all the elements of first 

degree murder. Petitioners do not show the relevance of these 

arguments to the prima facie analysis of eligibility under 

section 1172.6, subdivision (a). 

a. Pacheco

In Pacheco, the petitioner sought resentencing under 

section 1172.6. A jury had convicted him of first degree murder 

as an aider and abettor and attempted murder; the jury also 

found true a gang special circumstance. (Pacheco, supra, 

76 Cal.App.5th at p. 121, review granted.) The trial court’s 

7 “On May 18, 2022, our Supreme Court granted review in 

Pacheco, supra, 76 Cal.App.5th 118 (S274102) but has deferred 

further action pending disposition of People v. Curiel (Nov. 4, 

2021, G058604 [nonpub. opn.]), review granted January 26, 2022, 

S272238 [lead case], which presents the following issue: ‘Does a 

jury’s true finding on a gang-murder special circumstance (Pen. 

Code, § 190.2, subd. (a)(22)) preclude a defendant from making a 

prima facie showing of eligibility for resentencing under Penal 

Code section [1172.6].’ ” (People v. Williams (2022) 

86 Cal.App.5th 1244, 1252, fn. 10.)
23

instruction as to the gang special circumstance provided: “ ‘The 

defendant is charged with the special circumstance of committing 

murder while an active participant in a criminal street gang . . . . 

[¶] To prove that this special circumstance is true, the People 

must prove that: [¶] 1. A perpetrator intentionally killed [the 

victim]; [¶] 2. At the time of the killing, the defendant was an 

active participant in a criminal street gang; [¶] 3. The defendant

knew that members of the gang engage in or have engaged in a 

pattern of criminal gang activity; [¶] 4. The murder was carried 

out to further the activities of the criminal street gang; [¶] AND 

[¶] 5. The defendant had the intent to kill at the time of the 

killing.’ ” (Id. at pp. 127–128, review granted). The resentencing 

court found the petitioner had failed to make a prima facie case of 

eligibility for section 1172.6 relief because the jury found the 

gang special circumstance true and thus, that he had the intent 

to kill. The appellate court reversed. 

The trial court had also instructed on the natural and 

probable consequences doctrine, and the prosecutor had argued 

that murder theory to the jury. Although the true gang special 

circumstance finding showed intent to kill, the appellate court 

reasoned the finding did not satisfy the actus reus element of 

murder because the jury could have found defendant guilty of 

aiding and abetting target crimes other than murder and then 

convicted petitioner of murder based on the now invalid natural 

and probable consequences doctrine. (Pacheco, supra, 

76 Cal.App.5th at p. 128, review granted.) Because the 

instruction did not require a finding on the actus reus of murder, 

the court concluded the petitioner had demonstrated a prima 

facie case of eligibility for resentencing. (Ibid., review granted.) 
24

Assuming arguendo that Pacheco is correctly decided, it 

does not aid petitioners. Although the special circumstance 

instruction in Pacheco did not require a finding of aiding and 

abetting the murder, the special circumstance instruction in this 

case did (see Background, part 3.d & Discussion, part B.2, ante),

and the record of conviction thus demonstrates petitioners 

were not convicted of Stover’s murder based on any theory of 

imputed malice. 

b. Lopez

Burks relies on Lopez, supra, 14 Cal.5th 562 to argue the 

record of conviction does not demonstrate as a matter of law that 

the jury made all the necessary findings to support a conviction 

that he aided and abetted a first degree murder. Lopez did not 

involve a section 1172.6 resentencing petition. Instead, it 

involved the petitioner’s claim in a habeas corpus petition that 

his conviction for aiding and abetting first degree murder was 

based on an instruction on the natural and probable 

consequences doctrine, which was invalid under People v. Chiu

(2014) 59 Cal.4th 155. The petitioner further argued this 

instructional error was not harmless beyond a reasonable doubt.

(Lopez, at p. 567.) The trial court agreed but the Court of Appeal 

reversed. It reasoned that the error was harmless because to find 

the gang murder special circumstance was true, the jury was 

required “to find that an aider and abettor acted with intent to 

kill” (ibid.), and there was “ ‘overwhelming’ ” evidence against the

petitioner (ibid.). 

The Supreme Court reversed and remanded to the Court of 

Appeal to address harmless error under the harmless error 

principles elucidated in the high court’s opinion. (Lopez, supra, 

14 Cal.5th at p. 592.) Lopez observed that the true finding on the 
25

gang murder special circumstance did not cover all the elements 

of direct aiding and abetting a first degree murder: “ ‘An aider 

and abettor who knowingly and intentionally assists a 

confederate to kill someone could be found to have acted willfully, 

deliberately, and with premeditation, having formed his own 

culpable intent. Such an aider and abettor, then, acts with the 

mens rea required for first degree murder.’ [Citation.]” (Id. at 

p. 579.) Because the latter true finding did not dispel the 

possibility that the jury convicted the petitioner of aiding and 

abetting a first degree murder based on a natural and probable 

consequences theory, the true finding did not necessarily render 

the Chiu error harmless.

Lopez supports that a special circumstance instruction 

requiring a showing of intent to kill (like the special circumstance 

instructions in this case) is not sufficient to support all the 

elements of first degree murder, for example, premeditation and 

deliberation. But that is not the inquiry section 1172.6 requires 

in evaluating a petitioner’s prima facie case.

When evaluating Burks’s and Jackson’s prima facie case in 

their petitions, the resentencing court did not have to determine 

whether the jury necessarily found true all elements of first 

degree murder. Instead, the issue before the resentencing court 

was whether Burks and Jackson made a prima facie case that 

they were convicted under a now invalid theory of murder 

because of changes to sections 188 and 189. (§ 1172.6, 

subd. (a)(3); see also People v. Gonzalez (2023) 87 Cal.App.5th 

869, 881 [holding that “[r]educing a first degree murder 

conviction to second degree murder is not an option under 

section 1172.6”].) Section 1172.6 does not provide resentencing 

relief to persons who acted with “malice aforethought that 
26

was not imputed based solely on participation in a crime.”

(People v. Lopez, supra, 78 Cal.App.5th at p. 14.) The special 

circumstance instructions here demonstrate that the jury 

necessarily found that petitioners acted with express malice, i.e.,

intent to kill, and not with imputed malice.8 That finding 

renders Burks and Jackson ineligible for resentencing relief 

under section 1172.6. 

4. The trial court applied the correct standard of 

proof at the section 1172.6, subdivision (d)(3) 

hearing

Burks argues, with Jackson joining, that the court applied 

the wrong standard of proof at the order to show cause hearing.9 

The record belies his argument.

Section 1172.6, subdivision (d)(3) requires the prosecution 

to prove “beyond a reasonable doubt, that the petitioner is guilty 

of murder or attempted murder under California law as amended 

by the changes to Section 188 or 189 made effective January 1, 

2019.” It expressly rejects substantial evidence as the applicable 

burden: “A finding that there is substantial evidence to support a 

conviction for murder . . . is insufficient to prove, beyond a 

8 We agree with Burks insofar as he argues that the 

verdict forms, standing alone, do not show the jury found 

petitioners intended to kill. The verdict forms did not expressly 

require the jury to state it found intent to kill.

9 There is no merit to respondent’s argument that the 

issue is forfeited. The parties discussed the correct standard of 

proof and the resentencing court explained that it was applying a 

beyond-the-reasonable-doubt standard of proof.
27

reasonable doubt, that the petitioner is ineligible for 

resentencing.” (§ 1172.6, subd. (d)(3), italics added.) 

Here, the record demonstrates the resentencing court, 

acting as an independent factfinder, measured the evidence 

against the beyond-a-reasonable-doubt standard to determine 

whether petitioners were guilty of murder under current law. 

The court stated, “I just wanted to put on the record that that is 

the standard I am following, beyond a reasonable doubt, the 

Rodriguez standard. It is clearly the right standard. There was 

another standard that was discussed in Duke, and that has been 

rejected.” The prosecutor responded that she agreed with the 

standard and reminded the resentencing court that it had to 

review the record independently. 

Burks fastens on to the resentencing court’s reference to 

“could be convicted” during the order to show cause hearing to 

argue the court applied the wrong standard. He takes the court’s 

use of that phrase out of context. For example, in responding to 

counsel for Jackson’s argument that Jackson could not be 

convicted of second degree felony murder, the court stated, “The 

question is whether a valid murder theory exists today based on 

the facts in the case that your client could be convicted . . . .” The 

resentencing court stated, “[The] evidence in this particular case 

is overwhelming that they could still be convicted, under any of 

these theories, of Ms. Finney’s murder under current law.” The 

court stated that all petitioners “could be convicted today of a 

valid theory of murder . . . .” The court found that the petitioners 

could be convicted of felony murder because felony murder now 

includes kidnapping. In making these statements, the 

resentencing court was merely considering murder theories 

viable under current law, that is, theories of which petitioners 
28

“could” still be convicted notwithstanding the changes to 

sections 188 and 189. 

The record unequivocally reflects that the resentencing 

court applied the correct burden of proof and acted as an 

independent factfinder. The resentencing court evaluated the 

evidence and found it overwhelming. The court stated it was 

basing its decision on “the evidence presented at trial.” The court 

referred to the witnesses at trial and found Davis’s testimony 

credible. The court comprehensively summarized the evidence as 

presented at trial and highlighted the evidence the court believed 

supported its findings. As if this were not enough, the court

stated it was applying a beyond-the-reasonable-doubt standard 

and rejecting the different standard in People v. Duke (2020) 

269 Cal.Rptr.3d 264 that in Senate Bill No. 775, the Legislature 

also subsequently rejected. (See Discussion, part A, ante; 

§ 1172.6, subd. (d)(3)). 

Burks and Jackson again take the resentencing court’s 

statements out of context in arguing that the court relied on facts 

recited in our opinion on their direct appeal instead of acting as 

an independent factfinder. Facts recited in an appellate opinion 

are not admissible in a section 1172.6 subdivision (d)(3) hearing. 

(People v. Vance (2023) 94 Cal.App.5th 706, 712–713.) The 

resentencing court, however, did not rely on facts recited in our 

prior opinion but instead, agreed with those facts in stating, the 

“language” of the appellate opinion is the same as the facts the 

court “read [in] the trial transcript.” The court expressly 

indicated, the “appellate opinion” was not a “bible on what the 

facts are . . . .” The fact that the trial court commented that its 

view of the evidence was consistent with the facts recited in our 
29

opinion does not demonstrate the court failed to act as an 

independent factfinder. 

Burks argues the resentencing court relied on cases that

are no longer good law, but he does not show the court relied on 

any principle of law no longer valid. In applying the beyond-areasonable-doubt standard of proof, the resentencing court cited 

People v. Rodriguez (2020) 272 Cal.Rptr.3d 342, depublished on 

December 22, 2021 (S266652) just before the order to show cause 

hearing. That standard of proof remains correct notwithstanding 

depublication of Rodriguez. (People v. Gonzalez, supra, 

87 Cal.App.5th at p. 880.) 

The resentencing court also relied on People v. Hernandez

(2021) 60 Cal.App.5th 94 (Hernandez) to conclude “the 

kidnapping felony murder theory applies.” We acknowledge 

Hernandez’s description of a two-part prima facie showing was 

abrogated in People v. Lewis, supra, 11 Cal.5th at pp. 961–965. 

We fail to discern what relevance Hernandez’s now defunct 

holding has to the issues in this appeal and Burks provides no 

cogent argument to the contrary. 

C. Burks’ Challenge to the Sufficiency of the Evidence 

To Support the Finding That He Aided and Abetted 

Finney’s Murder Lacks Merit

Burks argues under current law, the prosecution failed to 

prove beyond a reasonable doubt that he was guilty of Finney’s 

murder. He contends no substantial evidence supports the 

resentencing court’s finding he aided and abetted that murder 

with intent to kill Nina Bates. 

We review a resentencing court’s denial of a section 1172.6 

petition after an order to show cause hearing for substantial 

evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988.) Under 
30

this standard, we review the record “ ‘ “ ‘in the light most 

favorable to the judgment below to determine whether it discloses 

substantial evidence—that is, evidence which is reasonable, 

credible, and of solid value—such that a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt.’ ” ’ 

[Citation.]” (Ibid.) 

“[U]nder direct aiding and abetting principles, an 

accomplice is guilty of an offense perpetrated by another if the 

accomplice aids the commission of that offense with ‘knowledge of 

the direct perpetrator’s unlawful intent and [with] an intent to 

assist in achieving those unlawful ends.’ [Citation.]” (Gentile, 

supra, 10 Cal.5th at p. 843.) Burks correctly identifies the 

following factors in determining whether a defendant is an aider 

and abettor: presence at the scene of the crime, companionship, 

and conduct before or after the offense. (People v. Campbell

(1994) 25 Cal.App.4th 402, 409.) 

The evidence showed that before the killings, Burks 

purchased ammunition, cleaned off his gun, and armed himself. 

Burks was present in the apartment when his confederates 

discussed killing B.J. Bates and his sister Nina. Davis testified 

that when Lively said, “All about killing. That’s right. We 

dangerous people,” “everybody was kind of agreeing saying ‘that’s 

right, that’s right. We got to go get our money back for our 

people.’ ” Lively also said, “[G]oing to get the sister. Kill the 

sister.” Denard specifically asked Davis questions about Bates’s 

family including Nina. Davis provided details including that 

Bates’s sister drove a red Hyundai.

Burks wore a ski mask and carried a loaded firearm as he 

accompanied Denard, Lively, and Porter to the scene of the 

shooting. Burks was with his confederates when they spotted 
31

Stover’s red car, and then turned around and drove in the 

opposite direction. One eyewitness placed Burks in the blue 

Jeep. Another eyewitness saw the beige Jeep (which she thought 

was tan) at the scene of the shooting. Regardless of which Jeep 

he was in, Burks was present at the Finney shooting. 

After killing Finney, Denard said the victims (Stover and 

Finney) were in a red car. Denard also told co-defendant Carter 

to move Denard’s mother because he shot B.J.’s sister and was 

concerned about retaliation. Denard referred to Nina, stating,

“[W]e got that bitch. We pumped her full of lead.” Burks 

confirmed his participation in the murder when he admitted to 

his mother, “[W]e just killed these two girls.”

Burks’s attack on the sufficiency of the evidence does not 

consider the evidence in the light most favorable to the 

resentencing court’s order. He incorrectly states that “[n]o 

witness placed Burks inside the blue Jeep.” He incorrectly states 

that a reasonable trier of fact could not infer Burks agreed with 

Lively’s statements about killing to get the drug money back 

when Burks purchased bullets, loaded a gun, put on a ski mask,

and accompanied his confederates to the killing. Burks 

incorrectly states that “no one said anything about killing Nina.”

Burks argues he did not have a motive to kill Nina, but there was 

evidence that Burks and his co-defendants wanted to kill Nina to 

exact revenge on her brother, B.J. Bates, for selling them flour 

instead of cocaine. Burks minimizes his admission that “we 

killed two girls” when he argues the admission does not show his 

intent prior to the killing. Regardless of whether that statement 

by itself shows his intent prior to the killing, Burks’s conduct 

prior to the shootings supports the inference that Burks aided 

and abetted the murder with intent to kill. Finally, Burks’s 
32

statement that he did not aid and abet the killings ignores the 

evidence that he purchased ammunition.

Because Burks demonstrates no error in the resentencing 

court’s finding that he aided and abetted Finney’s murder with 

intent to kill, we do not consider whether the trial court erred in 

finding Burks was guilty of murder under a valid felony murder 

or conspiracy theory. 

D. Jackson Demonstrates No Error in the Resentencing 

Court’s Finding That He Was Guilty of the Felony 

Murder of Finney Under Current Law

Under current law, felony murder is a theory of first degree 

murder. (§ 189, subd. (a).) Jackson does not challenge the 

sufficiency of the evidence to support his murder conviction of 

Finney under a felony murder theory. Instead, he argues, that as 

a matter of law, the resentencing court could not rely on a felony 

murder theory without violating (1) the constitutional 

prohibitions against ex post facto application of the law and 

placing him in double jeopardy, (2) his right to due process of law, 

and (3) principles of collateral estoppel and law of the case. We 

address these arguments seriatim.10 

10 Respondent argues Jackson forfeited these contentions 

by not raising them in the resentencing court. Without deciding 

that issue, we exercise our discretion to consider Jackson’s 

contentions. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 

[an appellate court generally has discretion to consider 

unpreserved claims].) Additionally, Jackson’s counsel briefly

raised violation of ex post facto and double jeopardy principles at 

the resentencing hearing. 
33

1. No ex post facto violation

Jackson contends the ex post facto clause of the federal and 

California Constitutions (U.S. Const. art. I, § 10; Cal. Const. 

art. I, § 9) precludes conviction of Finney’s murder on a felony 

murder theory because kidnapping was not a qualifying 

underlying felony for first degree felony murder in 1988, when 

the killing occurred. 

The ex post facto clauses in our state and federal 

Constitutions prohibit “ ‘ “any statute [1] which punishes as a 

crime an act previously committed, which was innocent when 

done; [2] which makes more burdensome the punishment for a 

crime, after its commission, or [3] which deprives one charged 

with crime of any defense available according to law at the time 

when the act was committed . . . .” ’ [Citation.]” (Tapia v. 

Superior Court (1991) 53 Cal.3d 282, 294, quoting Collins v. 

Youngblood (1990) 497 U.S. 37, 42.) The ex post facto clause of 

the state Constitution is coextensive with its federal counterpart. 

(Tapia, at pp. 295–296.)

“The standard for determining whether a law violates the 

ex post facto clause has two components, ‘a law must be 

retrospective—that is, “it must apply to events occurring before 

its enactment”—and it “must disadvantage the offender affected 

by it” . . . by altering the definition of criminal conduct or 

increasing the punishment for the crime . . . .’ [Citation.]” 

(People v. Delgado (2006) 140 Cal.App.4th 1157, 1164.) “A party 

asserting an ex post facto claim has the ultimate burden of 

establishing that the measure of the punishment itself has 
34

changed.” (Id. at p. 1166.) Jackson does not disagree with these 

principles.11

Jackson is correct only insofar as he argues that in 1988, 

kidnapping was not included in section 189, which defined first 

degree felony murder.12 At that time, murder during the course 

of a kidnapping supported a second degree felony murder 

conviction. People v. Pearch (1991) 229 Cal.App.3d 1282 

explained the former offense of second degree murder: “Second 

degree felony murder is defined as: ‘A homicide that is a direct 

causal result of the commission of a felony inherently dangerous 

to human life (other than the . . . felonies enumerated in 

Pen. Code, § 189) . . . .’ [Citation.]” (Pearch, at p. 1296.) 

Kidnapping fell withing the definition of a felony inherently 

dangerous to human life (id. at p. 1298), and the trial court here 

11 Quoting People v. Smith (1983) 34 Cal.3d 251, 259, 

Jackson describes an ex post facto law as follows: “[F]or a law to 

be ex post facto ‘it must apply to events occurring before its 

enactment, and it must disadvantage the offender affected by it.’ 

[Citation.] The latter phrase plainly includes any law that 

punishes as criminal an act that was innocent when done, or 

increases the punishment for a crime after it was committed.”

12 In 1988, section 189 provided: “All murder which is 

perpetrated by means of a destructive device or explosive, 

knowing use of ammunition designed primarily to penetrate 

metal or armor, poison, lying in wait, torture, or by any other 

kind of willful, deliberate, and premeditated killing, or which is 

committed in the perpetration of, or attempt to perpetrate, arson, 

rape, robbery, burglary, mayhem, or any act punishable under 

Section 288, is murder of the first degree; and all other kinds of 

murders are of the second degree.” 
35

instructed the jury on second degree felony murder based on 

kidnapping.13 

Jackson’s conduct was thus not innocent when he 

committed it; his conduct was inherently dangerous to human life 

and when he was tried, it supported a second degree murder 

conviction. As significant, a resentencing petition under 

section 1172.6 cannot result in increasing Jackson’s punishment, 

but only in decreasing his sentence had it been successful. 

Jackson has thus failed to show a violation of the ex post facto 

clauses in our state and federal Constitutions. 

2. No double jeopardy violation

Jackson has also failed to demonstrate a violation of the 

double jeopardy prohibition in the Fifth Amendment to the 

United States Constitution and in Article I, section 15 of the 

California Constitution. “ ‘At its core, the double jeopardy clause 

“protect[s] an individual from being subjected to the hazards of 

trial and possible conviction more than once for an alleged 

offense.” [Citation.] The policy underlying the double jeopardy 

13 The court instructed the jury on second degree felony 

murder as follows: “If a human being is killed by any one of 

several persons engaged in the commission of the crime of 

Kidnapping for Ransom, Kidnapping, or Shooting at an inhabited 

Dwelling, felonies inherently dangerous to human life, all persons, 

who either directly and actively commit the act constituting such 

crime, or who with knowledge of the unlawful purpose of the 

perpetrator of the crime and with the intent or purpose of 

committing, encouraging, or facilitating the commission of the 

offense, aid, promote, encourage, or instigate by act or advice its 

commission, are guilty of murder of the second degree, whether 

the killing is intentional, unintentional, or accidental.” (Italics 

added.)
36

protection “is that the State with all its resources and power 

should not be allowed to make repeated attempts to convict an 

individual . . . thereby subjecting him to embarrassment, expense 

and ordeal and compelling him to live in a continuing state of 

anxiety and insecurity.” [Citation.]’ [Citation.]” (People v. 

Wilson (2023) 14 Cal.5th 839, 852.) 

A defendant seeking resentencing is not being prosecuted 

for an offense and thus, principles of double jeopardy do not apply 

to section 1172.6 resentencing petitions. (People v. Mitchell

(2022) 81 Cal.App.5th 575, 589.) As Mitchell explains: “A 

petition under former section 1170.95 is . . . . is the opposite of a 

criminal prosecution. A criminal prosecution can only hurt a 

defendant and can never help. The process here is the reverse: it 

can only help the defendant and can never hurt.” (Mitchell, at 

p. 588; accord, Hernandez, supra, 60 Cal.App.5th at p. 111 

[defendant petitioning for resentencing is not being placed in 

jeopardy for an offense].) Resentencing is a voluntary process 

commenced by a criminal defendant seeking a reduced sentence. 

The resentencing court is not determining guilt but instead is 

determining eligibility for resentencing. (People v. Njoku (2023) 

95 Cal.App.5th 27, 45–46.) The resentencing court’s denial of 

Jackson’s petition merely made him ineligible for a decreased 

sentence; it did not place Jackson in jeopardy for any offense. 

(Mitchell, at p. 589 [double jeopardy principles do not apply in 

section 1172.6 proceedings.]) 

3. Doctrines of collateral estoppel and law of the 

case do not benefit Jackson because no issue is 

being relitigated

Adopting Burks’s argument, Jackson asserts that the 

doctrine of collateral estoppel “bars relitigation of previously 
37

determined issues.” Jackson makes a similar claim with respect 

to the doctrine of law of the case in stating that he was 

“acquitted” of first degree murder and the second degree murder 

conviction was affirmed on appeal and cannot be relitigated. 

“The rule of collateral estoppel—‘embodied’ in the double 

jeopardy clause and ‘extremely important’ to the criminal justice 

system—requires ‘that when an issue of ultimate fact has once 

been determined by a valid and final judgment, that issue cannot 

again be litigated between the same parties in any future 

lawsuit.’ [Citation.]” (People v. Zavala (2008) 168 Cal.App.4th 

772, 776–777.) For collateral estoppel to apply, “First, the issue 

sought to be precluded from relitigation must be identical to that 

decided in a former proceeding. Second, this issue must have 

been actually litigated in the former proceeding. Third, it must 

have been necessarily decided in the former proceeding. Fourth, 

the decision in the former proceeding must be final and on the 

merits. Finally, the party against whom preclusion is sought 

must be the same as, or in privity with, the party to the former 

proceeding.’ [Citation.]” (People v. Arnold (2023) 93 Cal.App.5th 

376, 386.) Law of the case applies only when an appellate court 

has issued a written opinion demonstrating a full consideration of 

the issue on the merits and may be “declined” if “ ‘ “its application 

will result in an unjust decision.” ’ [Citation.]” (People v. 

Saucedo (1974) 42 Cal.App.3d 905, 907.) 

We need not decide if collateral estoppel or law of the case 

would apply to a section 1172.6 proceeding because Jackson 

identifies no allegation the jury resolved in his favor that the 

resentencing court relitigated. Jackson also identifies no issue 

resolved in Jackson’s favor in the prior appeal that the 

resentencing court relitigated. 
38

Under the instructions given at Jackson’s trial, the only 

theory of first degree murder proffered to the jury was murder by 

premeditation and deliberation. The resentencing court noted 

this, and Jackson emphasizes the resentencing “court’s 

observation that premeditation and deliberation were absent in 

relation to the Finney murder.” When it concluded that Jackson 

was guilty of felony murder under current law, the resentencing 

court did not rely on the theory of first degree murder that the 

jury rejected, i.e., premeditation and deliberation.

Under current law, a defendant can be liable for felony 

murder if the defendant was a “ ‘major participant[ ] in the 

underlying felony and acted with reckless indifference to human 

life . . . .’ [Citation.]” (Strong, supra, 13 Cal.5th at p. 708.) 

Jackson identifies no element of felony murder under current law 

on which the jury acquitted him or on which this court decided in 

his favor in the appeal from the judgment of conviction. 

People v. Cooper (2022) 77 Cal.App.5th 393 helps illustrate 

this hole in Jackson’s argument. Cooper holds that a 

resentencing court, which stands as a trier of fact at a 

section 1172.6, subdivision (d)(3) hearing, cannot deny relief 

based on a finding “inconsistent with a previous acquittal when 

no [relevant] evidence other than that introduced at trial is 

presented.” (Cooper, at p. 398.) At trial, the parties stipulated 

Cooper was a felon. (Id. at pp. 397, 399.) The jury found Cooper 

guilty of first degree murder and kidnapping but acquitted him of 

being a felon in possession of a firearm. (Id. at pp. 397, 399.) 

There was no new evidence at the resentencing hearing. In 

supporting its finding that Cooper was guilty of felony murder, 

the resentencing court found Cooper possessed and fired a gun. 

(Id. at p. 398.) The appellate court reversed, concluding the 
39

resentencing court erred in relying on a fact that necessarily 

“ ‘turn[ed]’ ” a not-true enhancement finding “ ‘into [its] 

opposite[ ].’ [Citations.]” (Id. at p. 413; see also People v. Henley

(2022) 85 Cal.App.5th 1003, 1019 [following Cooper].) Here, 

Jackson identifies no finding that the resentencing court turned 

into its opposite. The resentencing court did not rely on 

premeditation and deliberation, the only theory of first degree 

murder presented to the jury. Instead, the resentencing court 

relied on felony murder under current law. 

Finally, Jackson argues that the resentencing court erred 

in relying on Hernandez, supra, 60 Cal.App.5th 94. We fail to 

discern any such error. Hernandez supports the conclusion that 

in considering a resentencing petition, the resentencing court 

could find Jackson guilty of first degree felony murder under 

current murder law even though he could be convicted only of 

second degree murder at the time of his trial. 

Hernandez considered whether under current law, the 

People had to prove malice aforethought in the murder of a peace 

officer. Hernandez concluded current murder law did not require 

such a finding. (Hernandez, supra, 60 Cal.App.5th at p. 105.) It 

also held the fact that on direct appeal and based on since 

abrogated law, the appellate court reduced petitioner’s conviction 

to second degree was “not relevant to the analysis.” (Id. at 

p. 110.) In so concluding, Hernandez rejected defendant’s 

challenge based on the doctrine of law of the case and the double 

jeopardy clause. (Id. at pp.110–111.) It reasoned intervening 

changes in the law precluded concluding the appellate court’s 

prior opinion was law of the case (id. at pp. 110–111) and the 

resentencing statute does not constitute a new prosecution but 
40

instead, only provides an act of lenity that does not raise double 

jeopardy concerns (id. at p. 111). 

Similarly here, under current law, Jackson could be 

convicted of first degree felony murder based on kidnapping. 

Just as in Hernandez, the fact that kidnapping supported only a 

second degree felony murder at the time Jackson committed his 

offense is not relevant to whether he could be convicted of first 

degree felony murder now.

4. Jackson fails to demonstrate a violation of his

right to due process 

Jackson argues that “subjecting [him] to a second 

proceeding at which the prosecution has the opportunity to 

establish guilt for an offense of which [he] was acquitted at trial 

violates the doctrine of fundamental fairness, as incorporated in 

the due process clause of the federal and state Constitutions. It 

is unfair to give the prosecution a second opportunity to prove an 

allegation where it failed to carry its burden of proof during the 

jury trial.” 

Jackson’s argument is based on false premises. The People 

did not subject Jackson to a second criminal prosecution. 

Instead, Jackson filed a petition for resentencing seeking to take 

advantage of a new definition of murder in the hope of reducing 

his sentence. Although Jackson purports to challenge the 

prosecution’s proof of an allegation that the prosecution 

previously “failed to carry its burden of proof,” Jackson identifies 

no allegation the jury found untrue. The jury did not acquit 

Jackson of felony murder; it acquitted him of premeditated 

murder—the only theory of first degree murder presented to the 

jury. In short, Jackson fails to identify any allegation the 

prosecution did not prove in the first trial that the prosecution 
41

had a second opportunity to prove at the order to show cause 

hearing.14 

DISPOSITION

The order denying Lyndell Tyrone Jackson’s resentencing 

petition is affirmed. The order denying Vincent Burks’s 

resentencing petition is affirmed. 

NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J.

WEINGART, J.

14 Given our holding that Jackson could be convicted of 

first degree felony murder of Finney based on kidnapping, we 

do not address his challenges to the resentencing court’s other 

findings, i.e., aiding and abetting with intent to kill and 

conspiracy.