Filed 10/4/21 P. v. Baker CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RYNELL MARION BAKER,

Defendant and Appellant.

 D077943

 (Super. Ct. No. CR143101)

APPEAL from an order of the Superior Court of San Diego County, 

David M. Gill, Judge. Affirmed.

Robert E. Boyce, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters and Julie L. Garland, 

Assistant Attorneys General, A. Natasha Cortina and Alan L. Amann, 

Deputy Attorneys General, for Plaintiff and Respondent. 

In 1994, a jury convicted Rynell Marion Baker and codefendants 

Reginald Lewis and William Ortega of conspiracy to commit murder (Pen. 
2

Code,1 § 182, subd. (a)(1)) and first degree murder (§ 187, subd. (a)). It found 

true allegations that Ortega personally used a firearm (§ 12022.5) and that

Lewis and Baker were armed with a firearm during the murder’s 

commission. (§ 12022, subd. (a)(1).) The trial court sentenced Baker to 25 

years to life for murder plus a consecutive one-year sentence for the firearm

allegation. It stayed the sentence for the conspiracy count. 

In January 2020, Baker petitioned for resentencing under section 

1170.95, a resentencing statute enacted as part of Senate Bill No. 1437 (2017-

2018 Reg. Sess.) and asked the court to assign him counsel. In part, Senate 

Bill No. 1437 amended the felony-murder rule and the natural and probable 

consequences doctrine as it relates to murder, limiting murder liability to 

defendants who (1) are the actual killer; (2) are not the actual killer but who 

share the killer’s intent to kill and aid and abet the killing; or (3) are a major 

participant in an enumerated felony and who act with reckless indifference to 

human life, and eliminating natural and probable consequences liability for 

murder regardless of degree. (People v. Gentile (2020) 10 Cal.5th 830, 846-

848.) The trial court denied the petition, finding Baker did not make a prima 

facie showing he was entitled to relief under the statute. 

On appeal, Baker contends the court erred by denying his petition 

without issuing an order to show cause and holding a hearing; that the 

court’s decision was based on improper “factfinding” and consideration of 

matters outside of his petition. He maintains the court should have viewed 

his petition’s factual allegations as true, and issued an order to show cause 

because his petition complied with section 1170.95 and made out a prima 

facie claim for relief. Baker asks that we remand the matter with directions 

1 Undesignated statutory references are to the Penal Code.
3

that the court appoint counsel for him, issue an order to show cause, and 

conduct an evidentiary hearing. 

While Baker’s appeal was pending, the California Supreme Court 

decided People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which resolves, among 

other things, whether a trial court presented with a section 1170.95 petition 

may consider the record of conviction to determine whether a petitioner such 

as Baker made out a prima facie showing he is entitled to section 1170.95 

relief.2 We invited the parties to file supplemental briefing on the decision, 

and have considered those briefs. Applying Lewis, we reject Baker’s 

contentions and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the underlying facts of Baker and his codefendants’ 

crimes, which are set forth in more detail in this court’s prior opinion denying 

Baker’s petition for a writ of habeas corpus and affirming the convictions.

(People v. Baker, et al. (Jun. 21, 1996, D021705) [nonpub. opn.] (Baker).) A 

copy of this court’s opinion is in the record of this appeal. 

In January 1993, Baker, Lewis and Ortega, all members of the West 

Coast Crips criminal street gang, were at a nightclub where they “ ‘mad2 Lewis additionally held a defendant is statutorily entitled to counsel, if 

requested, upon filing a facially sufficient petition under section 1170.95. 

This followed from the Lewis court’s interpretation of subdivision (c) of 

section 1170.95, which it held described only a single prima facie showing, 

not a two-step process with distinct sequential inquiries: “ ‘If the petitioner 

has requested counsel, the court shall appoint counsel to represent the 

petitioner.’ [Citation.] The combined meaning is clear: petitioners who file a 

complying petition requesting counsel are to receive counsel upon the filing of 

a compliant petition.” (Lewis, supra, 11 Cal.5th at p. 963.) Baker was 

represented by the Office of the Alternate Public Defender when he filed his 

reply to the People’s opposition to his petition; thus, this part of Lewis’s

holding is not pertinent here.
4

dogg[ed]’ ” some rival Piru gang members, L.M. and R.I. A verbal altercation 

ensued between the rival gang members, and club bouncers separated them. 

Baker, Lewis and Ortega left about 10 to 15 minutes before the club closed at 

3:45 a.m. L.M. and his group left the club when it closed. As the club was 

closing, several Crips gang members, including Baker and Ortega, were 

waiting outside standing shoulder to shoulder on a median island facing the 

club. Baker and Ortega stood beside each other. When L.M. and R.I. walked 

out, Baker, Ortega and the group moved forward and formed a semicircle 

around them. Baker shouted, “ ‘What’s up now, motherfuckers? You guys 

don’t have the bouncers here to keep us off your ass right now. Let’s take 

[care] of now what we should have took care of inside.’ ” Seeing Baker reach 

to the back of his trench coat, R.I. ran, shouting to L.M. that the men had 

guns. Ortega raised his arm and shot L.M., killing him. 

After a jury convicted Baker and Ortega as stated above, this court in 

June 1996 affirmed the judgment in an unpublished opinion. (Baker I, supra, 

D021705.) In part, we concluded: “[T]he evidence . . . is sufficient to permit 

the jury to infer Baker knew Ortega, at least, was armed and the group 

intended to kill [L.M.], the principal antagonist in the Crip/Blood 

confrontation inside the club. Baker’s actions at the shooting scene show he 

helped prevent [L.M.] from escaping. The evidence is sufficient to find he 

aided and abetted.” We likewise concluded there was substantial evidence 

Baker conspired to commit murder. 

In January 2020, Baker petitioned for resentencing under section 

1170.95 using a check-box form. He asserted he was convicted of first or 

second degree murder pursuant to the felony-murder rule or natural and 

probable consequences doctrine. He also asserted he was convicted of first 

degree felony murder but because of changes to sections 188 and 189, he 
5

could not now be convicted because he was not the actual killer, nor was he a 

major participant in the felony who acted with reckless indifference to human 

life during the course of the crime. Pointing out Baker was convicted of first 

degree murder and conspiracy to commit murder, the People responded in 

part that Baker had not made out a prima facie showing he was entitled to 

relief; that is, he had not established he could not be convicted of first or 

second degree murder because of the statutory changes to those offenses set 

out in section 1170.95. They argued Baker’s conviction for conspiracy to 

commit murder required the specific intent to kill, and was necessarily 

conspiracy to commit premeditated and deliberated first degree murder. 

Thus, the People asserted that notwithstanding his declaration to the 

contrary, Baker had failed to make the showing that he came within the 

provisions of section 1170.95, as he had not pleaded any facts from his record 

of conviction or new facts demonstrating he could not be convicted under the 

amended law. They argued the court was permitted to consider Baker’s 

record of conviction and the content of its own files and if it determined he 

had not made the necessary showing, deny the petition. 

Now represented by the Office of the Alternate Public Defender, Baker 

replied that his charging documents and verdict forms did not specify a 

theory of liability, and that under People v. Drayton (2020) 47 Cal.App.5th 

9653 the court should accept the facts asserted in a petition for resentencing 

unless they were untrue as a matter of law. He asserted the court was 

required to issue an order to show cause if, taking the petition’s facts as true, 

the petitioner would be entitled to relief because he met section 1170.95’s 

3 Lewis abrogated Drayton as to the two-step analysis, but relied on that 

case in ruling on the prima facie-showing issue. (Lewis, supra, 11 Cal.5th at 

p. 963.) 
6

requirements. Baker argued his petition alleged each of the three facts 

required by the law, and the charging documents confirmed Baker was 

charged and convicted of first degree murder, but did not provide sufficient 

information about the theory of liability used by the People. He asked the 

court to issue an order to show cause and set a hearing to decide the merits of 

his petition. 

The court denied Baker’s petition on grounds Baker did not make a 

prima facie showing he warranted the requested relief. It ruled his petition 

and response were “boilerplate” and conclusory; they did not provide facts or 

explanation “as to why or how the charging document ‘allowed the 

prosecution to proceed under a theory of felony murder or murder under the 

natural and probable consequences doctrine’ nor how [Baker] ‘could not be 

convicted of first or second degree murder because of changes to Section 188 

or 189 made effective January 1, 2019.’ ” The court continued that the 

conclusory allegations were “blatantly contradicted by the record of 

conviction” as the jury was not instructed on either felony murder or the 

natural and probable consequences doctrine, and thus the record contradicted 

the assertion that the charging document allowed the prosecution to proceed 

on either theory of murder. The court pointed out that the jury in Baker’s 

case unanimously found he conspired to commit first degree murder and was

instructed that to convict him of that offense, it had to find he acted with the 

specific intent to agree to commit the public offense of murder. Thus, it found

the jury “also made an explicit finding that [Baker] acted with intent to kill 

when he planned and participated in the murder.” The trial court finally 

observed that this court had rejected Baker’s arguments challenging the 

evidence of his specific intent to agree to murder and to kill, and section 

1170.95 was not a vehicle to relitigate those claims. 
7

Baker filed this appeal. 

DISCUSSION

I. Senate Bill No. 1437 and Standard of Review

The court in Lewis summarized the background and operation of 

section 1170.95: “Effective January 1, 2019, the Legislature passed Senate 

Bill 1437 ‘to amend the felony-murder rule and the natural and probable 

consequences doctrine, as it relates to murder, to ensure that murder liability 

is not imposed on a person who is not the actual killer, did not act with the 

intent to kill, or was not a major participant in the underlying felony who 

acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, 

subd. (f).) In addition to substantively amending sections 188 and 189 of the 

Penal Code, Senate Bill 1437 added section 1170.95, which provides a 

procedure for convicted murderers who could not be convicted under the law 

as amended to retroactively seek relief. [Citation.] 

“Pursuant to section 1170.95, [subdivision (a),] an offender must file a 

petition in the sentencing court averring that: ‘(1) A complaint, information, 

or indictment was filed against the petitioner that allowed the prosecution to 

proceed under a theory of felony murder or murder under the natural and 

probable consequences doctrine[;] [¶] (2) The petitioner was convicted of first 

degree or second degree murder following a trial or accepted a plea offer in 

lieu of a trial at which the petitioner could be convicted [of] first degree or 

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

first or second degree murder because of changes to Section 188 or 189 made 

effective January 1, 2019.’ [Citations.] Additionally, the petition shall state 

“[w]hether the petitioner requests the appointment of counsel.” [Citation.] If 

a petition fails to [include the contents required by section 1170.95,] 

subdivision (b)(1) [i.e., petitioner’s declaration under subdivision (a), case 
8

number and year of conviction, and a statement whether petitioner requests 

appointment of counsel] ‘the court may deny the petition without prejudice to 

the filing of another petition . . . .’ [Citation.] [¶] Where the petition 

complies with [section 1170.95,] subdivision (b)’s three requirements, then 

the court proceeds to [section 1170.95,] subdivision (c) to assess whether the 

petitioner has made ‘a prima facie showing’ for relief.” (Lewis, supra, 11

Cal.5th at pp. 959-960.)

Section 1170.95, subdivision (c) provides: “The court shall review the 

petition and determine if the petitioner has made a prima facie showing that 

the petitioner falls within the provisions of this section. If the petitioner has 

requested counsel, the court shall appoint counsel to represent the petitioner. 

The prosecutor shall file and serve a response within 60 days of service of the 

petition and the petitioner may file and serve a reply within 30 days after the 

prosecutor response is served. These deadlines shall be extended for good 

cause. If the petitioner makes a prima facie showing that he or she is 

entitled to relief, the court shall issue an order to show cause.” This provision 

“describe[s] only a single prima facie showing”; “ ‘ “[t]he first sentence [of 

subdivision (c)] states the rule” ’ and ‘ “[t]he rest of the subdivision 

establishes the process for complying with that rule.” ’ ” (Lewis, supra, 11

Cal.5th at p. 962.) Applying this meaning, petitioners who file a complying 

petition requesting counsel are to receive counsel upon the filing of a facially 

sufficient petition. (Id. at pp. 957, 967, 970.) “[O]nly after the appointment of 

counsel and the opportunity for briefing may the superior court consider the 

record of conviction to determine whether ‘the petitioner makes a prima facie 

showing that he or she is entitled to relief.’ ” (Id. at p. 957.)

“If the trial court determines that a prima facie showing for relief has 

been made, the trial court issues an order to show cause, and then must hold 
9

a hearing ‘to determine whether to vacate the murder conviction and to recall 

the sentence and resentence the petitioner on any remaining counts in the 

same manner as if the petitioner had not . . . previously been sentenced, 

provided that the new sentence, if any, is not greater than the initial 

sentence.’ [Citation.] ‘The prosecutor and the petitioner may rely on the 

record of conviction or offer new or additional evidence to meet their 

respective burdens.’ [Citation.] At the hearing stage, ‘the burden of proof 

shall be on the prosecution to prove, beyond a reasonable doubt, that the 

petitioner is ineligible for resentencing.’ ” (Lewis, supra, 11 Cal.5th at p. 960; 

see also People v. Gentile, supra, 10 Cal.5th at pp. 842-843; People v. Turner

(2020) 45 Cal.App.5th 428, 433-434.) 

II. Equal Protection Argument

We begin with Baker’s argument that he may challenge his conviction 

for conspiracy to commit murder under section 1170.95, and that any 

conclusion otherwise violates his right to equal protection under the state and 

federal Constitutions.4 

The starting point for statutory interpretation is the statute’s language. 

(People v. Gonzales (2018) 6 Cal.5th 44, 50.) Section 1170.95 provides a 

remedy only for “[a] person convicted of felony murder or murder.” (§

1170.95, subd. (a); accord, People v. Paige (2020) 51 Cal.App.5th 194, 202 

[statute does not provide relief to persons convicted of manslaughter]; People 

v. Sanchez (2020) 48 Cal.App.5th 914, 918 [“By its plain language, section 

4 The People do not respond to Baker’s equal protection contention, 

presumably because the trial court in this case entertained Baker’s petition, 

accepted and considered briefing on the issue, and decided whether he made 

out a prima facie case under section 1170.95 with respect to both his 

convictions for murder and conspiracy to commit murder. 
10

1170.95 . . . makes sentencing relief available only to qualifying persons 

convicted of murder”]; People v. Larios (2019) 42 Cal.App.5th 956, 970, 

review granted Feb. 26, 2020, S259983 [“the relief provided in section 

1170.95 is limited to certain murder convictions and excludes all other 

convictions . . . .”].)5 On that ground, Baker is not eligible for relief under

section 1170.95 with respect to his conspiracy conviction.

 Baker, however, maintains such an interpretation violates equal 

protection under the state and federal Constitutions as “irrationally underinclusive, permitting imposition of a more severe penalty on an accomplice 

under the natural and probable consequences doctrine when the victim is 

killed or that a murder was in furtherance of a conspiracy.” He argues he has 

shown a state-adopted classification affects two or more similarly situated 

groups in an unequal manner, because murder and conspiracy to commit 

murder are “similarly situated” for purposes of section 1170.95 as both 

require malice by definition. 

We cannot agree. “ ‘[O]ffenders who commit different crimes are not 

similarly situated for equal protection purposes.’ ” (People v. Cervantes

(2020) 44 Cal.App.5th 884, 888; accord, People v. Paige, supra, 51 Cal.App.5th 

at p. 206; People v. Sanchez, supra, 48 Cal.App.5th at p. 920.) Baker was 

convicted of conspiracy, a different crime from murder. (United States v. 

Rabinowich (1915) 238 U.S. 78, 86 [“It . . . has been repeatedly declared in 

decisions of this court, that a conspiracy to commit a crime is a different 

offense from the crime that is the object of the conspiracy”].) “Conspiracy is 

an inchoate crime. [Citation.] It does not require the commission of the 

substantive offense that is the object of the conspiracy.” (People v. Swain

5 We may rely on appellate cases as persuasive authority while pending 

review. (Cal. Rules of Court, rule 8.1115(e)(1).)
11

(1996) 12 Cal.4th 593, 599-600.) Thus, Baker “ ‘has failed to establish the 

threshold requirement of an equal protection claim: disparate treatment of 

similarly situated persons.’ ” (Sanchez, at p. 920; accord, Paige, at p. 205; 

Cervantes, at p. 888.) 

Even if we accepted Baker’s argument that persons convicted of murder 

and conspiracy to commit murder are similarly situated for purposes of

section 1170.95, we would still reject his equal protection challenge. “[I]f the 

classification does not involve a suspect class, legislation is presumed to be 

valid under the equal protection clause if the statutory classification is 

rationally related to a legitimate state interest.” (People v. Mora (2013) 214 

Cal.App.4th 1477, 1483; see People v. Paige, supra, 51 Cal.App.5th at p. 205 

[applying rational basis review in deciding equal protection challenge]; 

Sanchez, at p. 921 [same]; Cervantes, at p. 888 [same]; People v. Lopez (2019)

38 Cal.App.5th 1087, 1111, review granted November 13, 2019, S258175 [“We 

. . . apply rational basis review to determine whether the Legislature’s 

limitation of the ameliorative provisions of Senate Bill 1437 was justified”].) 

We conclude there is a rational basis to exclude conspiracy from section 

1170.95 when multiple defendants act in concert. The mere fact of 

cooperation by multiple persons creates a higher degree of culpability: “For 

two or more to confederate and combine together to commit or cause to be 

committed a breach of the criminal laws is an offense of the gravest 

character, sometimes quite outweighing, in injury to the public, the mere 

commission of the contemplated crime.” (United States v. Rabinowich, supra,

238 U.S. at p. 88.) As long as the Legislature acts rationally, its 

determination to exclude crimes from the ambit of section 1170.95 should not 

be disturbed. (See People v. Sanchez, supra, 48 Cal.App.5th at p. 921.) 
12

III. Consideration of Matters Outside Baker’s Petition

Baker contends the trial court erred by denying his request for an order 

to show cause and summarily denying his petition based on matters outside 

his petition. He maintains section 1170.95 requires that the court conduct a 

purely facial review of the factual assertions in a defendant’s petition and 

accept those assertions as true. According to Baker, the court erred in his 

case by looking behind his petition’s allegations to the jury instructions, and 

engaged in prohibited factfinding to determine he was ineligible. 

In Lewis, the California Supreme Court decided against Baker’s 

interpretation of the statute. A trial court can consult and rely on documents 

within the record of conviction in determining whether a prima facie showing 

is made, if the documents are relevant to the underlying substantive 

question. (Lewis, supra, 11 Cal.5th at p. 972, fn. 6.) “[T]here is no categorical 

bar to consulting the record of conviction at the prima facie stage.” (Ibid.) 

The court reasoned: “The record of conviction will necessarily inform the trial 

court’s prima facie inquiry under section 1170.95, allowing the court to 

distinguish petitions with potential merit from those that are clearly 

meritless. This is consistent with the statute’s overall purpose: to ensure 

that murder culpability is commensurate with a person’s actions, while also 

ensuring that clearly meritless petitions can be efficiently addressed as part 

of a single-step prima facie review process.” (Lewis, supra, 11 Cal.5th at p. 

971.) 

However, that prima facie inquiry is “limited.” (Lewis, supra, 11 

Cal.5th at p. 971.) “Like the analogous prima facie inquiry in habeas corpus 

proceedings, ‘ “the court takes petitioner’s factual allegations as true and 

makes a preliminary assessment regarding whether the petitioner would be 

entitled to relief if his or her factual allegations were proved. If so, the court 
13

must issue an order to show cause.” ’ [Citation.] ‘[A] court should not reject 

the petitioner’s factual allegations on credibility grounds without first 

conducting an evidentiary hearing.’ [Citations.] ‘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.” ’ ” (Ibid.) Lewis explained that 

appellate opinions “are generally considered to be part of the record of 

conviction. [Citation.] However . . . the probative value of an appellate 

opinion is case-specific, and ‘it is certainly correct that an appellate opinion 

might not supply all answers.’ [Citation.] In reviewing any part of the record 

of conviction at this preliminary juncture, a trial court should not engage in 

‘factfinding involving the weighing of evidence or the exercise of discretion.’ 

[Citation.] . . . [T]he ‘prima facie bar was intentionally and correctly set very 

low.’ ” (Lewis, at p. 972.) Lewis concluded that “the parties can, and should, 

use the record of conviction to aid the trial court in reliably assessing whether 

a petitioner has made a prima facie case for relief under [section 1170.95,] 

subdivision (c).” (Ibid.)6

Under Lewis, the trial court here properly considered documents in 

Baker’s record of conviction, including this court’s prior appellate opinion, in 

deciding whether he established a prima facie case of eligibility for 

resentencing under section 1170.95. 

Baker does not squarely argue in his opening brief (with a required 

corresponding heading, Cal. Rules of Court, rule 8.204(a)(1)(B)) that his 

record of conviction as a factual matter fails to support the trial court’s 

6 Lewis did not resolve what substantively is required for a petitioner to 

prove he or she “ ‘could not be convicted of first or second degree murder 

because of changes to section 188 or 189 made effective January 1, 2019.’ ” 

(Lewis, supra, 11 Cal.5th at p. 972, fn. 6.) 
14

conclusion that he is not entitled to section 1170.95 relief. He maintains the 

court engaged in inappropriate factfinding in connection with its 

consideration of the jury instructions. He repeats the contentions in his 

supplemental brief, arguing that because the conspiracy instructions did not 

identify a victim, the jury could have found him guilty of conspiracy not 

because he held the intent to kill, but because it found the murder by one 

conspirator was the act of all conspirators.7 

We disagree that the court in reaching its ruling engaged in 

improper “ ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 972, quoting People v Drayton, 

supra, 47 Cal.App.5th at p. 979.) Rather, we hold the record of Baker’s 

conviction refutes the allegations in his petition, thus the superior court did 

not err in determining Baker was ineligible for relief under section 1170.95 

as a matter of law. 

Though Lewis did not address the relevant standard of review for the 

lower court’s determination of whether a petitioner has made a prima facie 

showing,8 we agree it is predominately a legal question, and thus our review 

is de novo. (Accord, People v. Arias (2021) 66 Cal.App.5th 987, 999; People v. 

Cunningham (2015) 61 Cal.4th 609, 664 [independently reviewing the record 

7 Baker further argues the court erred by considering the absence of a 

natural and probable consequences jury instruction, stating only that the 

court’s “conclusion that the absence of an instruction precluded the jury’s 

reliance on the natural and probable consequences doctrine necessarily 

involved ‘factfinding’ beyond the assertions in the petition and the charging 

document.” Baker does not further explain the assertion. 

8 Lewis did, however, address the standard of review for the prejudice 

determination stemming from the petitioner’s deprivation of counsel. (Lewis, 

supra, 11 Cal.5th at pp. 972-973.)
15

to resolve the legal question of whether it supported a prima facie case of 

racial discrimination in juror excusal].)

Here, the jury was presented only with instructions on murder with 

malice aforethought; it was not presented with theories of felony murder or 

natural-and-probable-consequences murder. Further, as Lewis made clear, 

the appellate opinion is generally part of the record of conviction. More 

specifically, “an appellate court decision . . . can be relied upon to determine 

the nature of a prior conviction because it may disclose the facts upon which 

the conviction was based.” (People v. Trujillo (2006) 40 Cal.4th 165, 180.) In 

the opinion in Baker’s case, this court affirmed the jury’s findings that Baker 

aided and abetted L.M.’s murder and committed conspiracy to commit 

murder, which “is necessarily conspiracy to commit premeditated and 

deliberated first degree murder.” (People v. Beck and Cruz (2019) 8 Cal.5th 

548, 641.) Senate Bill No. 1437 “did not . . . alter the law regarding the 

criminal liability of direct aiders and abettors of murder because such 

persons necessarily ‘know and share the murderous intent of the actual 

perpetrator.’ [Citations.] One who directly aids and abets another who 

commits murder is thus liable for murder under the new law just as he or she 

was liable under the old law.” (People v. Offley (2020) 48 Cal.App.5th 588, 

595-596; see also People v. McCoy (2001) 25 Cal.4th 1111, 1118.) Further, a

conviction for conspiracy to commit murder cannot be vacated under section 

1170.95. Such a conviction requires proof that the defendant had the intent 

to kill and cannot be based on a theory of implied malice. (People v. Swain, 

supra, 12 Cal.4th at p. 607.) In Baker’s case, the jury in convicting him found 

true overt acts alleging that Ortega, Lewis, Baker and other unknown 

persons “waited on the center divide of . . . El Cajon Boulevard and watched 

the . . . nightclub until the victim, [L.M.], exited the nightclub” and further 
16

that Ortega “shot [L.M.] in the head, killing him.” Taken as a whole, the 

record refutes any possible inference or conclusion that Baker did not hold 

the intent to kill L.M., as Baker maintains. 

DISPOSITION

The order denying Baker’s petition to vacate his convictions and for 

resentencing is affirmed.

O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.