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Filed 7/8/24 P. v. Smith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

NIIKO DAVON SMITH,

Defendant and Appellant.

E079476

(Super.Ct.No. RIF136041)

OPINION

APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. 

Affirmed.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and 

Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
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In 2008, defendant Niiko Davon Smith, a member of the Edgemont Criminal 

Gang, a criminal street gang, was convicted of two counts of attempted murder 

(Pen. Code,1 §§ 664, 187, subd. (a)), respecting two separate victims, with true findings 

on allegations that attempted murders were deliberate and premeditated, that a principal 

discharged a firearm (§12022.53, subds. (c), (e)), and that the attempted murders were 

committed for the benefit of a criminal street gang. (§ 186.22, subd. (b).) In addition, 

defendant was convicted of actively participating in a street gang (§186.22, subd. (a).) 

He was sentenced to an aggregate term of 35 years to life in state prison. His conviction 

was affirmed on direct appeal. 

In 2022, defendant petitioned for resentencing following the enactment of Senate 

Bill No. 1437, but the trial court found he had not established a prima facie showing that 

he was entitled to relief. Defendant appeals.

On appeal, defendant argues the trial court erred in denying his petition at the 

prima facie stage because the instructions given at trial relating to aiding and abetting 

may have misled the jury to find him “equally guilty” as the actual shooter, and the fact 

the jury was not instructed on theories of felony murder, or the natural and probable 

consequences doctrine did not preclude defendant from showing his eligibility for relief. 

We affirm the judgment.

1 All further statutory references are to the Penal Code unless otherwise indicated.
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BACKGROUND

We take the background facts from our unpublished opinion issued in defendant’s 

direct appeal (People v. Smith (Mar. 30, 2011, E049071 [nonpub. opn.]), supplemented 

with information relating to the postjudgment proceedings seeking resentencing.

“On February 15, 2007, there was a shooting at the Racquet Club Apartments in 

Moreno Valley. Five empty nine-millimeter Luger shell casings and one unexpended 

nine-millimeter Luger round were collected. Some of the residents were interviewed; 

however, no one was able to identify the shooter or shooters. The best that was 

discovered was that two vehicles, a van and a four-door sedan with persons of African 

American descent[,] were in the location of the sound of the shots.

“On February 23, 2007, about a week after the shooting, Sergeant Robert Spivacke 

of the Riverside County Sheriff’s Department conducted a tape-recorded interview of 

defendant about an unrelated matter. Detective Lance Colmer, a member of the gang 

unit, was called in to interview defendant. Unbeknownst to the parties present, when 

Detective Colmer began to interview defendant, it was not tape-recorded. When 

Detective Colmer walked in, defendant stood up and greeted the detective with a smile, 

saying ‘Colmer, my nigga.’ The two began to talk, asking each other about members of 

defendant’s gang. The detective had known defendant since 2003, interviewing him 

during investigations, talking to him in the community, and arresting him. Defendant 

admitted to Detective Colmer that he is a member of the Edgemont Criminal Gang (also 

referred to as ‘Edgemont’ or ‘Edgemont gang’). Defendant had been present at ‘the 
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Shaw residence, which is one of the primary members and primary locations of activity 

for the Edgemont Criminal gang.’ Also, defendant’s ‘participation in prior criminal acts 

with other members of the gang ... validates his membership.’

“After talking with defendant for about 20 minutes, Detective Colmer asked about 

the shooting at the Racquet Club Apartment complex. Defendant indicated he knew 

about it because he was there with others. Specifically, defendant identified Craisean 

Evans as being in the front of the van and the shooter. Defendant was in the far rear of 

the van, and other gang members or associates included ‘C-Mel’ (Davon King) and 

Davion Shaw. Upon arrival, defendant saw Sex Cash Money gang members in front of 

the apartment complex, including ‘Blue Devil’ (Noel Frazier), ‘Young Blue Devil’ 

(Tyreon Richmond), and ‘Deeko’ (Dekovan Washington). Defendant stated the shooting 

occurred because of the ‘rivalry that Edgemont Criminals and Moreno Valley had with 

Sex Cash Money, another gang in Moreno Valley.’ He explained this shooting was 

retaliation for an act the Edgemont gang believed Sex Cash Money had committed 

against it. After the shooting, they fled in the van.

“Supervising Deputy District Attorney Kamaria Henry observed Detective 

Colmer’s interview with defendant on a monitor at the police station on February 23, 

2007. Her recollection of the interview differed in that she testified defendant had 

identified Craisean Evans as the driver. She also believed defendant had denied being a 

member of the Edgemont gang.
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“Detective Colmer also testified as a gang expert and opined that defendant, 

Craisean Evans, and Davion Shaw were Edgemont gang members and Davon King was 

an associate of the gang. He also opined the shooting was gang related and motivated by 

the ongoing rivalry between the two gangs.” (People v. Smith, supra, E049071, 

fn. omitted.) 

“On October 6, 2008, a jury found defendant and appellant Niiko Davon Smith 

guilty of two counts of attempted premeditated murder (Pen. Code, §§ 664, 187, 

subd. (a); counts 3 & 4) and one count of active participation in a criminal street gang 

(§ 186.22, subd. (a); count 5). The jury found true the allegations that a principal 

personally and intentionally discharged a firearm (§ 12022, subd. (a)(1)) and that the 

crimes were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). On 

August 17, 2009, defendant was sentenced to prison for a total term of 35 years to life.” 

(People v. Smith, supra, E049071, fn. omitted.) 

Defendant appealed the conviction and sentence, in People v. Smith, supra,

E049071. On March 30, 2011, we modified the sentence to reflect concurrent terms on 

counts 3 and 4 of life with the possibility of parole, plus 20 years for the section 12022.53 

firearm enhancement, and we stayed the concurrent two-year sentence on count 5. In all

other respects, we affirmed the judgment. 

On April 18, 2022, defendant filed a pro se petition for resentencing under former 

section 1170.95 (currently numbered and hereafter referred to as § 1172.6), alleging he 

was eligible for resentencing. On July 22, the People requested that the petition be 
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denied because the record of conviction shows that the jury was not instructed on theories 

of felony murder or the natural and probable consequences doctrine, rendering defendant 

ineligible for resentencing. Defense counsel agreed. The court concluded there was no 

basis for relief and denied the petition. 

Defendant appealed. 

DISCUSSION

Defendant does not dispute that the jury in his trial was not instructed on 

principles of felony murder or the natural and probable consequences doctrine. However, 

he argues that “[t]he absence of instruction on these particular theories did not 

categorically preclude [defendant] from showing his eligibility for relief. All he needed 

to allege to make a prima facie showing was that he was convicted of attempted murder 

on an invalid theory was to assert that malice had been imputed to him based on someone 

else's mental state and that changes to [section 188] would preclude such a conviction 

now.” He goes on to argue that the instructions on aiding and abetting, combined with 

the prosecutor’s closing argument to the jury, allowed the jury to convict him of 

attempted murder based on the shooter’s mental state rather than his own. We disagree.
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A. Defendant Failed to Establish a Prima Facie Basis for Relief under Section 1172.6

Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended 

the felony-murder rule by adding section 189, subdivision (e). It provides that a 

participant in the qualifying felony is liable for felony murder only if the person: (1) was 

the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct 

aider and abettor; or (3) was a major participant in the underlying felony and acted with 

reckless indifference to human life. (See People v. Gentile (2020) 10 Cal.5th 830, 842.)

The Legislature also eliminated the natural and probable consequences doctrine

for persons who were not the actual killer by amending section 188, subdivision (a)(3), 

which now states that “[m]alice shall not be imputed to a person based solely on his or 

her participation in a crime.” (§ 188, subd. (a)(3).) The amendments included a 

procedure by which those convicted of murder can seek retroactive relief if the changes 

in law would affect their previously sustained convictions. (§ 1172.6; People v. Saibu 

(2022) 81 Cal.App.5th709, 731.)

Effective January 1, 2022, the statutory scheme was further amended to clarify 

that the new procedures applied also to persons convicted of attempted murder or 

manslaughter under a theory of felony murder and the natural and probable consequences 

doctrine and permitted the same relief as those persons convicted of murder under the 

same theories. (Sen. Bill No. 775 (2021-2022 Reg. Sess.); People v. Birdsall (2022) 77 

Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388; see 
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People v. Sanchez (2022) 75 Cal.App.5th 191, 193; People v. Porter (2022) 73 

Cal.App.5th 644, 651-652.)

Under section 1172.6, a person convicted of felony murder or murder based on the 

natural and probable consequences doctrine may petition the sentencing court to vacate 

the conviction and be resentenced on any remaining counts if he or she could not have 

been convicted of murder because of these statutory changes. (See People v. Lewis

(2021) 11 Cal.5th 952, 959-960 (Lewis).)

A person may seek resentencing by filing a section 1172.6 petition. (§ 1172.6, 

subd. (a).) Upon such filing, the court must “determine whether the petitioner has made a 

prima facie case for relief.” (§ 1172.6, subd. (c).) The petitioner is entitled to relief if he 

alleges, as relevant here, (1) “[a] complaint, information, or indictment was filed against 

[him] 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) he “accepted a plea 

offer in lieu of a trial at which the petitioner could have been convicted of ... attempted 

murder,” and (3) he “could not presently be convicted of ... attempted murder because of

changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a)(1)-

(3).)

The prima facie inquiry is limited. (Lewis, supra, 11 Cal.5th at p. 971.) The court 

must accept the petitioner’s allegations as true and “should not make credibility 
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determinations or engage in ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’ [Citation.]” (Id. at p. 974.) “If the petition and record in the case 

establish conclusively that the [petitioner] is ineligible for relief, the trial court may 

dismiss the petition” as a matter of law. (People v. Strong (2022) 13 Cal.5th 698, 708; In 

re Serrano (1995) 10 Cal.4th 447, 456.)

‘“However, if the record, including the court’s own documents, “contain[s] facts 

refuting the allegations made in the petition,” then “the court is justified in making a 

credibility determination adverse to the petitioner.””’ (Lewis, supra, 11 Cal.5th at 

p. 971.)

Thus, at the prima facie stage, the trial court’s inquiry “‘is limited to readily 

ascertainable facts from the record (such as the crime of conviction), rather than 

factfinding involving the weighing of evidence or the exercise of discretion (such as 

determining whether the petitioner showed reckless indifference to human life in the 

commission of the crime).’” (People v. Pacheco (2022) 76 Cal.App.5th 118, 125.) “If, 

accepting the facts asserted in the petition as true, the petitioner would be entitled to relief 

..., then the trial court should issue an order to show cause.” (People v. Drayton (2020) 

47 Cal.App.5th 965, 980 [overruled on a different point in Lewis, supra, 11 Cal.5th at 

p. 963].)

“We independently review a trial court’s determination of whether a petitioner has 

made a prima facie showing.” (People v. Patton (2023) 89 Cal.App.5th 649, 656, review 

granted June 28, 2023, S279670.) Whether the petitioner has made a prima facie 
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showing of entitlement to relief under section 1172.6 is a “‘purely legal conclusion, 

which we review de novo.’” (People v. Ervin (2021) 72 Cal.App.5th 90, 101.)

B. Analysis

1. Defendant’s Attempted Murder Convictions, Based on a Specific Intent to Kill 

and a Finding of Premeditation, Rendered Defendant Ineligible for 

Resentencing Relief.

Defendant’s petition includes the required assertions pursuant to section 1172.6, 

subdivision (a): that defendant was prosecuted and convicted of first or second degree 

murder or attempted murder or manslaughter pursuant to a theory of felony murder or 

murder under a natural and probable consequences theory or other theory under which 

malice is imputed solely based on the person's participation in the crime and that he or 

she could not now be so convicted because of changes to sections 188 or 189 that took 

effect January 1, 2019. (See § 1172.6, subd. (a)(l)-(3).) 

However, the record of conviction refutes the assertion that he was convicted 

under theories of felony murder or as an aider and abettor under the natural and probable 

consequences doctrine. As to the attempted murder counts, defendant is statutorily 

ineligible for resentencing, even after the amendments to sections 188 and 189, because 

no theory of felony murder or the natural and probable consequences doctrine were 

presented to the jury. Thus, the record of conviction refutes the allegations of the 

petition, because defendant was not ‘“[a] person convicted of felony murder or murder 
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under a natural and probable consequences theory,”’ and he is therefore ineligible for 

relief as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 677 (Daniel).)

Section 1172.6 applies by its terms only to attempted murders based on the natural 

and probable consequences doctrine. (§ 1172.6, subd. (a) [“A person convicted of ... 

attempted murder under the natural and probable consequences doctrine ... may file a 

petition ...”].) The jurors in this case were not instructed on that doctrine. They were 

given CALCRIM Nos. 400 and 401, on the theory of direct aiding and abetting, as well 

as CALCRIM No. 600, which advised them that an attempted murder conviction required 

a finding that the “defendant intended to kill [the victim].” “Direct aiding and abetting 

remains a valid theory of attempted murder after the enactment of Senate Bill No. 775.” 

(People v. Coley (2022) 77 Cal.App.5th 539, 548, citing People v. Sanchez (2022) 75 

Cal.App.5th 191, 197.) The jury verdicts establish defendant harbored the intent to kill 

and acted as a direct aider and abettor.

As the California Supreme Court has recently concluded, the finding of specific 

intent to kill may be binding and preclusive. (People v. Curiel (2023) 15 Cal.5th 433, 

453-454.) It explained that “a relevant jury finding is generally preclusive in section 

1172.6 proceedings, i.e., it ‘ordinarily establish[es] a defendant's ineligibility for 

resentencing under Senate Bill [No.] 1437 and thus preclude[s] the defendant from 

making a prima facie case for relief.’” (Curiel, supra, at pp. 453-454.)

In Curiel, the Supreme Court addressed the question of whether the jury’s finding 

of “intent to kill” in the gang-murder special circumstance was entitled to preclusive 
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effect, concluding that the defendant there was bound by that finding. (Curiel, supra, 15 

Cal.5th at pp. 450, 452-453.) However, in that case, where the defendant’s jury had been 

instructed on the now-invalid natural and probable consequences theory as to the 

underlying murder, the court went on to hold that the gang-murder verdicts, viewed in 

light of the natural and probable consequences instructions given to the jury, may have 

established an intent to kill, but did not show the jury necessarily made factual findings 

covering the elements of mens rea and actus reus. Thus, it concluded the trial court could 

not reject Curiel’s prima facie showing on this basis.

The circumstances of Curiel are easily distinguished from the present case. First, 

the intent to kill language was found in the instruction related to the special circumstance 

allegation related to a killing for the benefit of a street gang, while the instructions for the 

underlying murder included the natural and probable consequences theory. (See People 

v. Lovejoy (2024) 101 Cal.App.5th 860, 869, fn. 6.)

Here, there were no instructions on felony murder or the natural and probable 

consequences doctrine, so the only theory of liability on the attempted murder counts was 

that defendant directly aided and abetted the shooter of that victim. (People v. Edwards

(2020) 48 Cal.App.5th 666, 674, review dismissed Jan. 5, 2022, S262481; overruled on a 

different point in Lewis, supra, 11 Cal.5th at p. 963 [absence of jury instructions on 

felony murder or natural and probable consequences doctrine justified summary denial of 

petition]; see Daniel, supra, 57 Cal.App.5th at p. 677 [“no instructions were given on 

felony murder or murder under the natural and probable consequences doctrine”]; People 
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v. Cortes (2022) 75 Cal.App.5th 198, 205 [no prima facie showing where the record of 

conviction demonstrated the jury was not instructed on any theory of liability for murder 

or attempted murder that required that malice be imputed to him].) 

As we observed in the direct appeal, the defendant’s pretrial statements established 

he knew he was accompanying his codefendant to a retaliatory gang shooting and 

expressed that he shared that intent. (People v. Smith, supra, E049071.) The jury 

instructions clearly informed the jury it must find the defendant committed the requisite 

actus reus for attempted murder, and that defendant must have had the specific intent to 

kill. The jury rendered verdicts finding defendant guilty of attempted murder and found 

the attempted murder was premeditated. These findings are preclusive under Curiel, 

supra, 15 Cal.5th 433 at pages 453-454.

A person whose conviction involves a finding of intent to kill is ineligible for 

relief. (See People v. Medrano (2021) 68 Cal.App.5th 177, 182-183 [conviction of 

conspiracy to murder rendered defendant ineligible because the crime requires intent to 

kill]; see also People v. Coley (2022) 77 Cal.App.5th 539, 548 [by finding appellant 

guilty of attempted murder, the jury necessarily found he had personally harbored intent 

to kill or express malice when he aided and abetted the second degree murder], citing 

People v. Moon (2005) 37 Cal.4th 1, 29; & People v. Smith (2005) 37 Cal.4th 733, 741.)

Defendant was statutorily ineligible for relief under section 1172.6. The trial court 

correctly determined defendant had failed to make a prima facie showing he was entitled 

to relief under section 1172.6.
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2. CALCRIM No. 400. “Equally Guilty” Language

In making his argument that he was not precluded from seeking relief from his 

convictions due to the lack of instructions on felony murder or the natural and probable 

consequences doctrine, defendant asserts the jury instructions given at his trial in 

combination with the prosecutor’s closing arguments allowed the jury to convict him of 

attempted premeditated murder based on the shooter’s mental state rather than his own. 

We disagree. 

We begin by noting that challenges to the propriety of jury instructions are more 

properly made on direct appeal as claims of trial error. Section 1172.6 “does not permit a 

petitioner to establish eligibility on the basis of alleged trial error.” (People v. DeHuff

(2021) 63 Cal.App.5th 428, 438.) “‘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.)

Claims that the trial court gave jury instructions on felony murder, or the natural 

and probable consequences doctrine may be considered by a reviewing court in 

determining if the defendant was convicted under a now-invalid theory. However, where 

no such instructions were given, and no instructional challenge was argued on direct 

appeal, nor any claim of prosecutorial misconduct in closing arguments, arguing that the 

prosecutor’s argument in combination with the instructions given are nonstarters. (See 

People v. Cortes (2022) 75 Cal.App.5th 198, 205-206 [no merit in Cortes’s suggestion 
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that the jury may have, without instruction, relied on such a charge due to the 

prosecutor’s argument].) 

Defendant argues that the instructions on aider and abettor liability given by the 

trial court in this case, based on CALCRIM No. 400, improperly informed the jurors an 

aider and abettor ‘“is equally guilty of the crime whether he committed it personally or

aided and abetted the perpetrator who committed it.”’ This is not a meritorious challenge 

under the amendments to sections 188 and 189 because the idea that a ‘“direct 

perpetrator’s culpability could be imputed to an aider and abettor’ represented a ‘legally 

viable theory of aider and abettor murder liability,’ and that the amendment to the law 

occasioned by Senate Bill No. 1437 ‘changed that legal viability,’” has been rejected. 

(People v Burns (2023) 95 Cal.App.5th 862, 868 (Burns).)

In Burns, the court noted that “Use of the ‘equally guilty’ language in the 

instruction provided at Burns’s trial created a potential issue of instructional error, but it 

did not operate to offer the jury a theory of legal liability that can no longer support a 

conviction for murder as a result of the recent statutory changes. If Burns believed that 

the trial court in his case prejudicially erred by instructing the jury using the then-current 

version of CALCRIM No. 400, he had every basis and opportunity to raise that issue on 

his direct appeal.” (Burns, supra, 95 Cal.App.5th at pp. 868-869.)
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The same holds true here. The trial court only instructed the jury on principles of 

direct aider and abettor liability, stating correct legal principles that are still valid. Recent 

enactments ‘“did not change accomplice liability for murder under direct aiding and 

abetting principles”’ (Burns, supra, 95 Cal.App.5th at p. 869, citing People v. Jenkins

(2021) 70 Cal.App.5th 924, 931; & People v. Gentile (2020) 10 Cal.5th 830, 848), so 

defendant is not entitled to relief.

Similarly, the comments made by the prosecutor during closing argument are not a 

proper basis for a challenge under section 1172.6, particularly where the prosecutor relied 

only on direct aider and abettor liability principles and did not refer in any way to an 

invalid theory of liability. The jury verdicts themselves reveal the prosecutor’s argument 

had no effect, insofar as the jury found defendant guilty of deliberate and premeditated 

attempted murder, a finding that the jury instructions given in this case required that it 

find defendant personally premeditated involvement in the crime and acted with 

deliberation. The jury was not presented with a felony-murder theory of guilt or guilt 

under the natural and probable consequences theory. Under these circumstances, a 

petitioner is ineligible for relief as a matter of law. (Daniel, supra, 57 Cal.App.5th at 

p. 677.) 
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The trial court properly denied the defendant’s petition for resentencing relief at 

the prima facie stage.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

RAPHAEL

J.