Filed 9/9/21 P. v. Young CA4/3

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,

 Plaintiff and Respondent,

v.

WESLEY IRA YOUNG,

 Defendant and Appellant.

 G057741

 (Super. Ct. No. RIF106722)

 O P I N I O N 

Appeal from a postjudgment order of the Superior Court of Riverside 

County, John D. Molloy, Judge. Reversed and remanded with directions. 

Carl Fabian, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Matthew Rodriguez, Acting Attorney 

General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant 

Attorney General, A. Natasha Cortina, Lynne G. McGinnis and Quisteen S. Shum, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Wesley Ira Young appeals an order denying his petition to vacate his 

murder conviction and to be resentenced under Penal Code section 1170.95.1 The order 

was made prior to the Supreme Court’s recent decision in People v. Lewis (2021) 11 

Cal.5th 952 (Lewis), which clarified the rules respecting the adjudication of resentencing 

petitions under section 1170.95. Because the trial court did not have the benefit of the 

Lewis decision in ruling on appellant’s petition, we reverse its denial order and remand

the matter for further proceedings consistent with that decision. 

FACTUAL AND PROCEDURAL BACKGROUND 

A detailed recitation of the underlying facts is set forth in the prior opinions 

we have written in this case. (See People v. Scott et al. (Mar. 30, 2009, G040888) 

[nonpub. opn.] (Young I) and People v. Young (Mar. 8, 2018, G040888) [nonpub. opn.] 

(Young II).) In short, appellant and several other members of his gang went to a party in 

Corona to exact revenge on Bryan Williams for a prior incident.2 They started by 

attacking Williams in the garage and beating him up. Then, when the host of the party 

intervened and broke up the attack, three members of appellant’s group pulled out guns 

and started shooting. One of the shots struck and killed party guest Daveon Lee. 

Appellant and two other members of his group (Tavares Scott and Mario 

Gray) were charged with first degree premeditated murder, attempted premeditated 

murder and shooting at an inhabited dwelling. (§§ 187, subd. (a), 189, subd. (a), 664, 

subd. (a), 246.) The prosecution also alleged a special circumstance that the murder was 

committed to further the activities of a criminal street gang. (§ 190.2, subd. (a)(22).) 

And, it alleged as sentence enhancements that appellant acted for the benefit of such a 

gang and that he vicariously discharged a firearm causing death or great bodily injury. 

(§§ 186.22, subd. (b), 12022.53, subds. (d), (e).) 

1

All further statutory references are to the Penal Code.

2

In Young II, we mistakenly identified Cedric Brewer as the person appellant’s gang was after, 

when it was actually Williams. 
3

During closing argument, the prosecutor asserted that because codefendant 

Gray implicated appellant as one of the shooters, the jury could find appellant guilty of 

murder on the basis he was the person who actually shot Lee. However, the prosecutor 

conceded the evidence was inconclusive as to that issue, and he would never be able to 

prove who Lee’s killer was. Given the scant evidence it was appellant, the prosecutor 

relied heavily on aiding and abetting principles to secure appellant’s conviction. He told 

the jurors they could convict appellant of murder as a direct aider and abettor if he 

assisted the shooter with the intent to carry out that offense. But even if appellant did not 

intend to kill Lee or actually help the perpetrator do so, he was still liable for murder 

under the natural and probable consequences theory of aiding and abetting because that 

offense was a foreseeable result of the initial assault and battery on Williams. 

 In addition to instructing on those two theories of aiding and abetting, the 

trial court also told the jurors, “If you decide that [appellant] has committed murder, you 

must decide whether it is murder in the first or second degree. [¶] [Appellant] is guilty of 

first degree murder if the People have proved that he acted willfully, deliberately, and 

with premeditation. [Appellant] acted willfully if he intended to kill. [Appellant] acted 

deliberately if he carefully weighed the considerations for and against his choice, and, 

knowing the consequences, decided to kill. [Appellant] acted with premeditation if he 

decided to kill before committing the act that caused death.” “All other murders are of 

the second degree.” 

 Appellant’s mindset was also an issue with respect to the special 

circumstance allegation that the murder was committed to further the activities of a 

criminal street gang. The jury was instructed that in order to prove that allegation with 

respect to a defendant who was not the actual killer, but who was guilty of first degree

murder as an aider and abettor, the prosecution must prove he acted with the intent to kill. 

In the end, the jury convicted appellant as charged, and he was sentenced to 

life in prison without parole. On appeal, appellant challenged the jury’s true finding on 
4

the special circumstance allegation. He argued that with respect to accomplices, the gang 

special circumstance could only be applied if the defendant directly aided and abetted the 

murder, not if his murder liability stemmed from the natural and probable consequences 

doctrine. However, we rejected that argument for lack of authority and because it was 

not supported by the text of the special circumstance statute. (Young I, supra, G040888, 

at pp. 22-24.) We also determined there was sufficient evidence to support the 

defendants’ murder convictions under the natural and probable consequences doctrine. 

(Id. at pp. 15-20.) 

After the California Supreme Court denied review of our opinion in Young 

I, we granted appellant’s request to recall the remittitur to consider what effect, if any, the 

decision in People v. Chiu (2014) 59 Cal.4th 155 (Chiu) had on his case. In Chiu, our 

Supreme Court recognized that it is generally permissible to find a defendant guilty of 

aiding and abetting a criminal offense based on the perpetrator’s state of mind. However, 

because the mental state for premeditated murder is so “uniquely subjective and 

personal,” a defendant cannot be convicted of aiding and abetting that offense unless he 

intended to commit it himself, i.e., he personally possessed a premeditated mindset. (Id. 

at pp. 166-167.) Applying that holding to appellant’s case, we ruled that because the jury 

necessarily determined he acted with premeditation in finding him guilty of first degree 

murder, his conviction for that offense did not violate Chiu. (Young II, supra, G040888, 

at pp. 4-7.) Therefore, we again affirmed the judgment against him. 

Following the enactment of section 1170.95 in 2018, appellant filed a pro 

per petition to have his murder conviction vacated and to be resentenced under that 

section. In his petition, appellant alleged he was charged with and convicted of first 

degree murder under the natural and probable consequences theory, and he could not be 

so convicted under the law as amended by Senate Bill No. 1437 (SB 1437). Appellant 

also asked the trial court to appoint him counsel during the resentencing process. 
5

After receiving a lengthy opposition brief from the prosecution, the trial 

court scheduled a status conference on the petition. Notice of the conference was sent to 

the Riverside Public Defender’s Office in early April of 2019. 

The status conference was held on April 12, 2019. At the outset of the 

hearing, the deputy public defender declared a conflict, and the trial court appointed 

private attorney Virginia Blumenthal to represent appellant. Ms. Blumenthal promptly 

asked for a continuance, but the trial court ignored her request and decided appellant was 

ineligible for resentencing due to the jury’s true finding on the gang special circumstance 

allegation. Without allowing any input from Ms. Blumenthal on the issue, the court 

ruled, “This was an intent to kill. This matter is dismissed.” When Ms. Blumenthal 

objected to the ruling, the court concluded the hearing by saying, “All right. Thank you, 

counsel.” 

 On appeal, we reversed and remanded the matter for further proceedings. 

(People v. Young (Jan. 11, 2021, G057741) [nonpub. opn.] (Young III).) Despite the 

jury’s findings that appellant acted with the intent to kill and premeditation, we ruled 

those findings did not render him ineligible for resentencing because the jury did not 

make any findings regarding his actual role in the shooting. Therefore, we reversed the 

denial order and remanded the matter for further proceedings. 

The Attorney General petitioned for rehearing on a theory he did not raise 

in his appellate brief. Relying on our ruling in Young II that appellant’s conviction did 

not violate the holding of Chiu, the Attorney General argued that ruling precluded 

appellant from obtaining sentencing relief under section 1170.95. In the interest of 

justice, we granted the Attorney General’s petition for rehearing to consider this claim. 

(See Alameda County Management Employees Assn. v. Superior Court (2011) 195 

Cal.App.4th 325, 338, fn. 10 [when good cause exists, courts may address an issue that 

was first raised on rehearing].) 
6

After we set the matter for rehearing, however, the Supreme Court handed 

down its decision in Lewis. Because Lewis clarified the rules for how trial courts should 

adjudicate resentencing petitions under section 1170.95, we conclude the matter should 

be remanded to the trial court to apply those rules in the first instance before we weigh in 

on appellant’s eligibility for resentencing. 

DISCUSSION

In Lewis, the Supreme Court recognized SB 1437 changed the substantive 

law of murder in two respects. (Lewis, supra, 11 Cal.5th at p. 959.) First, it restricted the 

felony murder rule by amending section 189. As amended, that section provides a person 

is liable for murder for a death occurring during the commission of an enumerated felony 

only if “(1) The person was the actual killer. [¶] (2) The person was not the actual killer, 

but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, 

requested, or assisted the actual killer in the commission of murder in the first degree. [¶] 

(3) The person was a major participant in the underlying felony and acted with reckless 

indifference to human life . . . .” (§ 189, subd. (e).) 

SB 1437 also abolished the natural and probable consequences doctrine in 

murder cases by adding an important limitation to section 188, which defines malice for 

purposes of murder. Section 188 now provides that, except when the felony murder rule 

applies, “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.” (§ 188, subd. (a)(3).) 

Section 1170.95 is the procedural mechanism for challenging a murder 

conviction that was obtained in contravention of these new principles. As explained in 

Lewis, “Pursuant to section 1170.95, 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 
7

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 for 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.’ 

(§ 1170.95, subds. (a)(1)–(3); see also § 1170.95 subd. (b)(1)(A).) Additionally, the 

petition shall state ‘[w]hether the petitioner requests the appointment of counsel.’ (§ 

1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), ‘the court 

may deny the petition without prejudice to the filing of another petition . . . .’ (§ 1170.95, 

subd. (b)(2).) 

“Where the petition complies with subdivision (b)’s three requirements, 

then the court proceeds to subdivision (c) to assess whether the petitioner has made ‘a 

prima facie showing’ for relief. (§ 1170.95, subd. (c).) 

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

made, the trial court issues an order to show cause, and then must hold a hearing ‘to 

determine whether to vacate the murder conviction and to recall the sentence and 

resentence the petitioner on any remaining counts in the same manner as if the petitioner 

had not . . . previously been sentenced, provided that the new sentence, if any, is not 

greater than the initial sentence.’ (§ 1170.95, subd. (d)(1).) ‘The prosecutor and the 

petitioner may rely on the record of conviction or offer new or additional evidence to 

meet their respective burdens.’ (§ 1170.95, subd. (d)(3).) 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.’ (§ 1170.95, subd. (d)(3).)” (Lewis, supra, 11 

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

The primary issue in Lewis was whether this statutory framework allows 

trial courts to reject a facially sufficient petition for resentencing based on the record of 

conviction without appointing counsel for the petitioner. Given the language, structure

and purpose of section 1170.95, Lewis ruled trial courts may consider the record of 
8

conviction in determining whether the petitioner has made a prima facie case for 

resentencing. (Lewis, supra, 11 Cal.5th at pp. 970-971.) However, they may not do so 

without appointing counsel and affording counsel an opportunity for briefing. (Id. at pp. 

961-970.) Therefore, when the petitioner requests an attorney in conjunction with a 

facially sufficient petition for resentencing, the trial court must allow input from counsel 

before considering the merits of the petition. (Ibid.)

Beyond that, Lewis also made clear that the bar for establishing a prima 

facie case for resentencing is very low, and that the trial court’s role in determining 

whether that bar has been cleared in a given case is quite limited. (Lewis, supra, 11 

Cal.5th at pp. 970-972.) While the trial court may consider the underlying record of 

conviction, it must take petitioner’s factual allegations as true and find in his favor unless 

the record shows he is ineligible for relief. (Ibid.) 

In addition, Lewis cautioned that while prior appellate opinions are part of 

the record of conviction, their probative value is “case-specific” and “‘might not supply 

all the answers’” in determining whether a petitioner is eligible for resentencing. (Lewis, 

supra, 11 Cal.5th at p. 972.) Furthermore, “[i]n reviewing any part of the record of 

conviction [for purposes of determining eligibility], a trial court should not engage in 

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

[Citation.]” (Ibid.) 

Because Lewis was so recently decided, neither the parties nor the trial

court had the benefit of these rules when appellant’s petition for resentencing was 

adjudicated. Yet they are obviously important because they bear on appellant’s right to 

counsel and the scope of the trial court’s review in assessing his petition. They are also 

highly relevant to the People’s claim regarding the significance of our prior opinion in 

Young II. Therefore, we reverse and remand for further proceedings, which is precisely 

what the Supreme Court did in Lewis after issuing its ruling in that case. (Lewis, supra, 

11 Cal.5th at p. 972.) 
9

DISPOSITION

The trial court’s order denying appellant’s petition for resentencing is 

reversed, and the matter is remanded. The trial court is directed to consider appellant’s 

petition anew and adjudicate the merits of the petition in light of the rules set forth in 

Lewis. 

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

THOMPSON, J.