Filed 8/5/24 P. v. Randolph CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

COLIN RANDOLPH,

Defendant and Appellant.

B330824

(Los Angeles County

Super. Ct. No. BA183257)

THE COURT:

Colin Randolph appeals the order of the superior court 

denying his postjudgment petition for resentencing under Penal

Code1 section 1172.6. (Former § 1170.95, Stats. 2022, ch. 58, 

§ 10.) We appointed counsel to represent Randolph on appeal. 

After examination of the record, counsel filed an opening brief 

raising no issues and requesting that we exercise our discretion 

to independently review the record for arguable issues pursuant 

1 Undesignated statutory references are to the Penal Code.
2

to People v. Delgadillo (2022) 14 Cal.5th 216, 228–232 

(Delgadillo).

BACKGROUND

On June 8, 2001, Randolph was convicted by jury of the 

first degree murder (§ 187, subd. (a); count 1) of Larry Houston 

on February 14, 1999, with true findings on the allegations that 

during the commission of the offense Randolph personally and 

intentionally discharged a firearm causing great bodily injury 

and death (§§ 12022.53, subds. (b), (c) & (d), 12022.5, subd. 

(a)(1)). The jury also convicted Randolph of two counts of 

attempted willful, deliberate, and premeditated murder 

(§§ 664/187, subd. (a); counts 2 & 3), and found true the 

allegations as to both counts that Randolph personally and 

intentionally discharged a firearm causing great bodily injury 

(§§ 12022.53, subds. (b), (c) & (d), 12022.5, subd. (a)(1)), and 

personally inflicted great bodily injury in the commission of the 

offense (§ 12022.7, subd. (a)). The trial court sentenced Randolph

to an aggregate term of 50 years to life.

On November 21, 2022, Randolph filed a section 1172.6 

petition for resentencing. The superior court appointed counsel, 

and the district attorney filed a response to the petition. 

Randolph filed a reply in propria persona, which was adopted by 

defense counsel and accepted by the superior court. The 

prosecution opposed the petition on the ground that the jury 

convicted Randolph of one count of first degree murder and two 

counts of attempted willful, deliberate and premeditated murder, 

with true findings on allegations as to all counts that Randolph 

personally and intentionally discharged a firearm causing great 

bodily injury and death within the meaning of section 12022.53, 

subdivision (d). While acknowledging that the trial court had 
3

instructed with CALJIC No. 3.02 on the natural and probable 

consequences theory of culpability, that instruction was modified 

expressly to apply only to codefendant James Tucker. The People 

further argued that Randolph was convicted of first degree 

murder, and the only legal theory on which the jury was 

instructed was willful, deliberate and premeditated murder 

under CALJIC No. 8.20. Because the jury made clear in its 

verdicts that Randolph was the actual shooter who personally 

inflicted great bodily injury and death, and his murder and 

attempted murder convictions did not rest on any theory of 

imputed malice, he is ineligible for resentencing relief as a matter 

of law.

The matter came on for prima facie review on May 12, 

2023. Following argument by the parties, the superior court 

announced it had reviewed the petition, the People’s response, 

Randolph’s reply, the court file, the December 26, 2002 decision 

on appeal from the conviction, and the abstract of judgment. The 

court recited the jury’s findings as stated in its verdict, noting 

that the court may deny a petition at the prima facie stage if a 

specific jury finding establishes ineligibility for relief as a matter 

of law.

The superior court then explained that “[a] petitioner is 

ineligible for resentencing as a matter of law if the record of 

conviction conclusively establishes, with no fact-finding, weighing 

of the evidence, or credibility determinations that, one, the 

petitioner was the actual killer; or [¶] Two, the petitioner was not 

the actual killer but, with intent to kill, aided, abetted, counseled, 

commanded, induced, solicited, requested, or assisted the actual 

killer in the commission of murder in the first degree; or [¶] 

Three, the petitioner was a major participant in the underlying 
4

felony and acted with reckless indifference to human life; or [¶] 

Four, petitioner acted with malice aforethought that was not 

imputed, based solely on participation in a crime.”

With these principles in mind, the superior court found 

that Randolph had failed to make a prima facie showing of 

eligibility for relief under section 1172.6. The court noted the 

jury’s express findings that in committing first degree murder 

and the attempted, willful, deliberate, and premeditated 

murders, Randolph personally used a firearm, and personally 

and intentionally discharged the firearm, proximately causing 

great bodily injury and death, and he personally and 

intentionally inflicted great bodily injury.

The superior court then denied Randolph’s section 1172.6 

petition on the ground that he had failed to make a prima facie 

showing for relief as a matter of law.

On appeal, Randolph filed his own supplemental brief in 

which he asserts: (1) He was tried under a legal theory that 

permitted the jury to convict him as a perpetrator or an aider and 

abettor; (2) Nothing in the record of conviction establishes that 

the jury convicted him as the actual killer or the person 

responsible for firing the shots in the attempted murders; (3) The 

true findings on the firearm enhancement allegations do not per 

se render petitioner ineligible for relief under section 1172.6; 

(4) The jury received additional ambiguous instructions 

regarding the firearm enhancements that created a pathway for 

jurors to misapply other instructions given.

In support of these contentions, Randolph submitted the 

following documents:
5

(1) Exhibit A: Eight pages of reporter’s transcript from 

trial proceedings in this case on May 21, 2001, regarding the 

delayed discovery of certain ballistics evidence;

(2) Exhibit B: This court’s unpublished opinion in 

Randolph’s direct appeal from his conviction. (People v. 

Randolph (Dec. 26, 2002, B151628) [nonpub. opn.].);

(3) Exhibit C: A posttrial declaration by David Vallier, 

dated September 14, 2012;

(4) Exhibit D: A letter from Demetrice Denegal to the Los 

Angeles County District Attorney’s Office, dated December 3, 

2018; and

(5) Exhibit E: A posttrial declaration by Demetrice 

Denegal, dated February 28, 2019.

DISCUSSION

Because the instant appeal is not from his conviction, 

Randolph is not entitled to our independent review of the record 

pursuant to People v. Wende (1979) 25 Cal.3d 436, or its federal 

constitutional counterpart, Anders v. California (1967) 386 U.S. 

738 [87 S.Ct. 1396, 18 L.Ed.2d 493]. (Delgadillo, supra, 14 

Cal.5th at p. 227 [“Courts below have uniformly agreed that

Wende procedures are not constitutionally required on an appeal 

from a denial of a postconviction petition under section 1172.6”]; 

People v. Kelly (2006) 40 Cal.4th 106, 119 [independent judicial 

review mandated by Anders applies only to first appeal as of 

right]; see also Pennsylvania v. Finley (1987) 481 U.S. 551, 559

[107 S.Ct. 1990, 95 L.Ed.2d 539].)

However, although “[t]he filing of a supplemental brief or 

letter does not compel an independent review of the entire record 

to identify unraised issues,” we are required to address the 

contentions Randolph raises in his supplemental brief. 
6

(Delgadillo, supra, 14 Cal.5th at p. 232 [“the Court of Appeal is 

required to evaluate the specific arguments presented in [the 

supplemental] brief and to issue a written opinion”].)

I. Randolf Failed to Establish a Prima Facie Case for 

Relief Under Section 1172.6

A. Section 1172.6

The Legislature enacted Senate Bill No. 1437 (2017–2018 

Reg. Sess.) in 2018, effectively abolishing the natural and 

probable consequences doctrine in cases of murder and limiting 

the application of the felony-murder doctrine. (Stats. 2018, 

ch. 1015, § 1, subd. (f); People v. Lewis (2021) 11 Cal.5th 952, 957 

(Lewis).) With one narrow exception (see § 189, subd. (f)), Senate 

Bill No. 1437 effectively eliminated murder convictions premised 

on any theory of imputed malice—that is, any theory by which a 

person can be convicted of murder for a killing committed by 

someone else, such as felony murder or the natural and probable 

consequences doctrine—unless the People also prove that the 

nonkiller defendant personally acted with the intent to kill or 

was a major participant who acted with reckless disregard to 

human life. (§§ 188, subd. (a)(3), 189, subd. (e).)

Senate Bill No. 1437 also enacted former section 1170.95 

(now § 1172.6), which established a procedure for vacating the 

murder convictions of defendants who could no longer be 

convicted of murder because of the amendments to sections 188 

and 189. (Stats. 2018, ch. 1015, § 4; Lewis, supra, 11 Cal.5th at 

pp. 957, 959, 971; People v. Gentile (2020) 10 Cal.5th 830, 843.) 

Effective January 1, 2022, Senate Bill No. 775 amended section 

1172.6 to expand its coverage to individuals convicted of 

“attempted murder under the natural and probable consequences 
7

doctrine.” (§ 1172.6, subd. (a); People v. Saibu (2022) 81 

Cal.App.5th 709, 747.)

Section 1172.6, subdivision (c) requires the superior court 

to appoint counsel when requested upon the filing of a properly 

pleaded petition for resentencing. (Lewis, supra, 11 Cal.5th at 

pp. 963, 966.) The court must then conduct a prima facie 

analysis with briefing to determine the petitioner’s eligibility for 

relief, and, if the requisite prima facie showing is made, issue an 

order to show cause. (§ 1172.6, subd. (c); Lewis, at p. 971; People 

v. Nieber (2022) 82 Cal.App.5th 458, 469–470.) In conducting 

this review, our Supreme Court has held that the superior court 

can and should look to the record of conviction. (Lewis, supra, 11 

Cal.5th at pp. 970–971 [“The record of conviction will necessarily 

inform the trial court’s prima facie inquiry under section [1172.6], 

allowing the court to distinguish petitions with potential merit 

from those that are clearly meritless”].) And “[i]f the petition and 

record in the case establish conclusively that the defendant is 

ineligible for relief, the [superior] court may dismiss the petition.”

(People v. Strong (2022) 13 Cal.5th 698, 708.)

We independently review the superior court’s prima facie 

determination that a petitioner is ineligible for section 1172.6 

relief as a matter of law. (People v. Berry-Vierwinden (2023) 97 

Cal.App.5th 921, 930.)
8

B. The record of conviction establishes that Randolph 

is ineligible for section 1172.6 relief as a matter of 

law

1. The jury instructions and verdicts

Randolph was convicted of one count of first degree 

murder.2 In order to find Randolph guilty of first degree murder, 

the instructions required the jury to find the murder was a 

willful, deliberate, and premediated killing with express malice 

aforethought. (CALJIC No. 8.20.) The instructions defined the 

terms “willful,” “deliberate,” and “premeditated” (ibid.), and 

explained that “[m]alice is express when there is manifested an 

intention unlawfully to kill a human being” (CALJIC No. 8.11).

With respect to the attempted murders, the jury was 

instructed: “In order to prove attempted murder, each of the 

following elements must be proved: [¶] 1. A direct but 

ineffectual act was done by one person towards killing another 

human being; and [¶] 2. The person committing the act harbored 

express malice aforethought, namely, a specific intent to kill 

unlawfully another human being.” (CALJIC No. 8.66.) The jury 

convicted Randolph on two counts of attempted murder, and as to 

each count found true the special allegation that the attempted 

murder was willful, deliberate, and premeditated. (See CALJIC 

No. 8.67.)

The trial court also instructed the jury on aiding and 

abetting. CALJIC No. 3.00 explained that “[p]ersons who are 

2 Randolph’s jury was also instructed on the definitions and 

elements of second degree murder (CALJIC Nos. 8.30, 8.31) and 

voluntary manslaughter (CALJIC No. 8.40), as well as the 

distinction between murder and manslaughter (CALJIC 

No. 8.50).
9

involved in committing or attempting to commit a crime are 

referred to as principals in that crime. Each principal, regardless 

of the extent or manner of participation is equally guilty. 

Principals include: [¶] 1. Those who directly and actively commit

or attempt to commit the act constituting the crime, or [¶] 

2. Those who aid and abet the commission or attempted 

commission of the crime.”

CALJIC No. 3.01 instructed that “[a] person aids and abets 

the commission or attempted commission of a crime when he, [¶] 

1. With knowledge of the unlawful purpose of the perpetrator and 

[¶] 2. With the intent or purpose of committing or encouraging or 

facilitating the commission of the crime, and [¶] 3. By act or 

advice aids, promotes, encourages or instigates the commission of 

the crime.”

The jury was further instructed on an aider and abettor’s 

liability for murder under the natural and probable consequences 

doctrine (CALJIC No. 3.02), but the instruction was modified to 

apply only to Randolph’s codefendant, Tucker: “One who aids 

and abets another in the commission of a crime is not only guilty 

of that crime, but is also guilty of any other crime committed by a 

principal which is a natural and probable consequence of the 

crime originally aided and abetted. [¶] Under this theory, in 

order to find the defendant Tucker guilty of the crime of murder as 

charged in Count 1, you must be satisfied beyond a reasonable 

doubt that: [¶] 1. The crime of murder was committed; [¶] 

2. That the defendant aided and abetted that crime[ ]; 3. That a 

co-principal in that crime committed the crime of murder; and [¶] 

4. The crime of murder was a natural and probable consequence 

of the commission of the crime of assault with [a] firearm.” 

(Italics added.)
10

The trial court did not give any instruction on felony 

murder or any other theory of liability under which malice could 

be imputed to Randolph.

2. Randolph was not convicted of murder or attempted 

murder under the natural and probable consequences doctrine or 

any other theory of imputed malice

In his supplemental brief, Randolph asserts that “the trial 

court gave the standard CALJIC No[s]. 3.00, 3.01 and 3.02 

instructions without any modifications or clarifications, [and] 

given the substantial role Tucker played . . . , the law permitted 

and [the trial court] encouraged . . . the jury to view both 

defendants as aider[s] and abettors.” Randolph argues that the 

trial court’s response to a jury question during deliberations 

permitted the jury to impute malice to Randolph based on these

aiding and abetting instructions. According to Randolph, “the 

jury could have believed it did not need to resolve the question of 

whether or not the [prosecutor] proved beyond a reasonable doubt 

petitioner fired any of the bullets that struck any of the victims, 

because they could convict him of murder if they believed murder 

and attempted murder was the natural and probable consequence 

of discharging a firearm into the air.”

However, contrary to Randolph’s assertion, CALJIC 

No. 3.02 was modified, and specifically limited application of the 

natural and probable consequences doctrine to Tucker’s 

culpability. We find nothing in these instructions that permitted

the jury to convict Randolph under the natural and probable 

consequences doctrine or any other theory of imputed malice.

The trial court’s answer to the jury’s question also did not 

extend the application of a natural and probable consequences

theory of liability to Randolph. During deliberations, the jury 
11

submitted the following question regarding CALJIC No. 3.01: “If 

a defendant knew his co-defendant intended to get into a fight 

but did not necessarily know his co-defendant intended to shoot a 

gun, would that constitute ‘knowledge of unlawful purpose’?”

The trial court responded first by stating that CALJIC 

No. 3.01 was only one of the aiding and abetting instructions 

given, and encouraged the jury to consider CALJIC No. 3.02. 

Under that instruction, the court explained, “[I]f you find that as 

a natural and probable consequence of certain acts, something 

that was completely unknown or whatever, happens, but it is a 

natural and probable consequence of what was known, you can 

still find aiding and abetting. You find it under 3.02 not 3.01. [¶] 

I will give you a quick example. There is law in this state that 

states if it was not unreasonable and it was a natural and 

probable consequence that someone who got in a fight and then 

someone was shot, that person does not necessarily have to have 

known that there was going to be a gun⎯provided that you find 

that shooting, be it attempted murder, murder, [assault] with a 

deadly weapon⎯provided that was a natural and direct 

consequence of, I am going to go have a fight.”

We disagree with Randolph’s contention that the jury 

instructions together with the trial court’s response to the jury’s 

question permitted the jury to convict Randolph under the 

natural and probable consequences doctrine where the 

instructions themselves expressly precluded that possibility.

“ ‘Jurors are presumed able to understand and correlate 

instructions and are further presumed to have followed the 

court’s instructions.’ ” (People v. Thomas (2023) 14 Cal.5th 327, 

382.) Nothing in the court’s response to the jury’s question 

altered the express limitation in the written instruction that the 
12

natural and probable consequences doctrine only applied to 

Tucker. We will not presume the jury misunderstood or failed to 

follow the court’s instructions on the law. (People v. Buenrostro

(2018) 6 Cal.5th 367, 431.)

CALJIC Nos. 3.00 and 3.01 were not so limited. But to the 

extent the jury relied on aiding and abetting in order to convict 

Randolph on the murder and attempted murder charges, the

instructions specifically required the jury to find Randolph acted 

to promote the murder and attempted murders “with knowledge 

of the unlawful purpose of the perpetrator.” (CALJIC No. 3.01.) 

For the first degree murder conviction, that meant the jury had 

to find Randolph knew the perpetrator was acting with “express 

malice aforethought.” (CALJIC No. 8.20.) And for the attempted 

murder convictions, that required finding Randolph knew the 

perpetrator was acting with “a clear, deliberate intent to kill.” 

(CALJIC No. 8.67.) In other words, in order to convict Randolph 

as an aider and abettor of first degree murder or attempted 

willful, deliberate and premeditated murder, the instructions 

required the jury to find the perpetrator acted with express 

malice, and Randolph shared the perpetrator’s intent to kill. 

Given these requirements, there is no possibility that Randolph

was convicted on a theory that imputed another’s malice to him 

or that he could have assisted the perpetrator without knowing 

that he intended to kill the victims.

In light of the jury instructions, the verdicts reflect all the 

factual findings necessary to support the murder and attempted 

murder convictions under current law, and conclusively refute 

Randolph’s allegation that he could no longer be convicted of 

murder and/or attempted murder because of the changes to 

sections 188 and 189. (People v. Curiel (2023) 15 Cal.5th 433, 
13

465.) Randolph is therefore ineligible for relief under section 

1172.6 as a matter of law (Lewis, supra, 11 Cal.5th at p. 971), and 

the superior court did not err in summarily denying the 

resentencing petition without an evidentiary hearing (People v. 

Delgadillo, supra, 14 Cal.5th at p. 233 [a defendant is not entitled 

to relief, and a resentencing petition properly denied at the prima 

facie stage, where the record of conviction makes ineligibility for 

relief clear]).

II. Randolph’s Challenge to the Sufficiency of the 

Evidence to Support the Claim He Was Convicted 

Under the Natural and Probable Consequences 

Doctrine Does Not Present a Valid Basis for Relief

In his supplemental brief, Randoph asserts the evidence is 

insufficient to establish he was the actual killer or the person 

responsible for firing the shots that struck the victims of the 

attempted murders. He further maintains that the jury’s true 

finding on the section 12022.53, subdivision (d) firearm 

enhancement could not support a finding that he was the actual 

killer or had the requisite intent to kill, but that ambiguous 

instructions regarding the gun enhancements “created a pathway 

for the jurors to misapply” other instructions given. In support of 

these arguments, Randolph points to evidence he claims shows he 

only fired his gun into the air in self-defense after someone else 

fired a gun, he never shot at anyone, and the bullets that struck 

Houston and the other victims had come from the firearm(s) of 

the “members of the entourage who Tucker had words with inside 

the club.” He also submits posttrial declarations to the effect that 

Randolph was not the man who shot any of the victims. He 

concludes that “on these facts,” he could only have been convicted 
14

of murder and attempted murder as an aider and abettor under 

the doctrine of natural and probable consequences.

As we have discussed, the jury was not instructed it could 

find Randolph guilty of murder or attempted murder under the 

natural and probable consequences doctrine. And Randolph’s 

challenge to the sufficiency of the evidence in support of the only 

theories on which the jury was instructed does not present a valid 

basis for resentencing under section 1172.6.

“The mere filing of a section [1172.6] petition does not 

afford the petitioner a new opportunity to raise claims of trial 

error or attack the sufficiency of the evidence supporting the 

jury’s findings. To the contrary, ‘[n]othing in the language of 

section [1172.6] suggests it was intended to provide redress for 

allegedly erroneous prior factfinding. . . . The purpose of section 

[1172.6] is to give defendants the benefit of amended sections 188 

and 189 with respect to issues not previously determined, not to 

provide a do-over on factual disputes that have already been 

resolved.’ ” (People v. Farfan (2021) 71 Cal.App.5th 942, 947.)

Moreover, this case is not a habeas proceeding, and the new 

evidence Randolph has submitted has no bearing on the superior

court’s denial of the section 1172.6 petition at the prima facie 

stage. The Legislature created a specific statutory scheme for 

resentencing under section 1172.6, and the statute expressly 

provides that a court may consider new evidence from either 

party at an evidentiary hearing after an order to show cause has 

issued. (§ 1172.6, subd. (d)(1), (3).) It says nothing about 

considering such evidence before a sufficient prima facie showing 

is made. The Legislature easily could have provided for the 

introduction of such evidence at the prima facie stage, but it did 

not. (Cf. § 1172.6, subd. (c) with § 1172.6, subd. (d)(3).)
15

As our Supreme Court made clear in Lewis, after receiving 

briefing from the parties on a facially sufficient petition the 

superior court may consider the “record of conviction” in 

determining whether the prima facie showing is made. (Lewis, 

supra, 11 Cal.5th at pp. 971–972.) Courts have held that the 

record of conviction includes the closing arguments of counsel, as 

well as the jury instructions and the jury’s verdict. (People v. 

Lopez (2022) 78 Cal.App.5th 1, 13 [record of conviction for 

purposes of § 1172.6 includes parties’ closing arguments]; People 

v. Ervin (2021) 72 Cal.App.5th 90, 106 [same]; see also People v. 

Jenkins (2021) 70 Cal.App.5th 924, 935.) Here, the prosecutor 

argued in closing that there was only one shooter, and as the only 

person with a gun, that shooter was Randolph. And contrary to 

Randolph’s assertion, the prosecutor did not argue the jury could 

convict Randolph of the murder under the natural and probable 

consequences doctrine or under another theory of imputed 

malice.3

3 Randolph quotes a portion of the prosecutor’s argument to 

claim the prosecutor urged the jury to find Randolph guilty under 

the natural and probable consequences doctrine:

“If Mr. Tucker and/or Mr. Randolph went there that night 

knowing they were probably going to shoot at people, but didn’t 

know death was going to result, the natural and probable 

consequence of the assault with firearm is the murder in this 

case, then they are both guilty of murder under aiding and 

abetting.”

However, in the next sentence, which Randolph omits, the 

prosecutor made clear that the natural and probable 
16

Finally, in addition to finding Randolph guilty of first 

degree murder and attempted murder, the jury found Randolph 

personally used and intentionally discharged a firearm causing 

great bodily injury and death. Thus, the jury’s verdicts show that 

it accepted the prosecutor’s argument that Randolph was the 

actual shooter, and so found.

In short, because Randolph was not prosecuted and the 

jury was not instructed on the natural and probable 

consequences doctrine or any other theory of imputed malice, he 

is ineligible for relief under section 1172.6 as a matter of law. We 

therefore affirm the superior court’s denial of Randolph’s petition 

for resentencing under section 1172.6, and reject the claims 

asserted in his supplemental brief.

consequences doctrine applied to Tucker’s liability for murder, 

not to Randolph’s:

“Mr. Tucker felt, okay, I am going to bring Mr. Randolph 

there, I am going to encourage him to commit assault with a 

firearm, if you find he aided and abetted and it resulted in the 

death of Larry Houston, he is still guilty of murder.”
17

DISPOSITION

The order of the superior court denying Randolph’s petition 

for resentencing under Penal Code section 1172.6 is affirmed.

NOT TO BE PUBLISHED.

LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.