Filed 1/25/24 P. v. Lord CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JERRY MAKATO LORD,

Defendant and Appellant.

F086022

(Super. Ct. No. CF95545234)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Heather 

Mardel Jones, Judge.

Randall Conner, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

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

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, Catherine 

Tennant Nieto, for Plaintiff and Respondent. 

-ooOoo-

* Before Levy, Acting P. J., Peña, J. and Smith, J.
2.

INTRODUCTION

In 1996, appellant Jerry Makato Lord pled guilty to willful, deliberate, and 

premeditated attempted murder (Pen. Code,1§§ 664/187, subd. (a)) and admitted an 

enhancement for the personal infliction of great bodily injury (GBI) (§ 12022.7, subd. 

(a)). He was sentenced to a term of life with the possibility of parole. 

On April 28, 2022, Lord filed a petition for resentencing under former section 

1170.95, now section 1172.6. After appointing counsel to represent Lord and accepting 

briefs from the parties, the trial court denied his petition at the prima facie stage. 

On appeal, Lord contends that the trial court erred by denying his petition at the 

prima facie stage. We affirm. 

FACTUAL AND PROCEDURAL HISTORY

The Underlying Crime

The record does not contain a description of the facts underlying Lord’s conviction 

for attempted murder. However, Lord’s change of plea form contains the following 

factual basis for his plea: “I attempted to murder a human being by a willful, deliberate 

and premeditated act and personally caused great bodily injury to that person.” 

The Trial Court’s Order Denying Lord’s Petition for Resentencing 

On March 22, 2023, following the submission of briefs by the parties and a prima 

facie hearing, the trial court issued a written order denying Lord’s petition for 

resentencing. The trial court’s order stated the following, in relevant part:

“According to the signed Plea Form, filed on February 22, 1996, Petitioner 

Lord pled ‘guilty’ to ‘lst Degree’ attempted murder and admitted personally 

causing great bodily injury pursuant to Penal Code § 12022.7. On the plea form 

itself, which is signed by Petitioner Lord, under item ‘14a. The facts on which I 

base my plea are:’, the following is handwritten in the blank provided: ‘I 

1

All undefined statutory citations are to the Penal Code unless otherwise 

indicated. 
3.

attempted to murder a human being by a willful deliberate and premeditated act 

and personally caused great bodily injury to that person.’

[¶ ] ... [¶ ]

“Evidenced by his own plea form, Petitioner Lord himself ‘willfully, 

deliberately and with premeditation’ attempted to murder victim Ramirez, and in 

so acting, Petitioner ‘personally’ caused great bodily injury. Petitioner’s factual 

basis admission provides the facts necessary to sustain his conviction. (People v. 

Romero (2022) 80 Cal.App.5th 145, 152-153. [Petitioner’s admission to 

‘intentional, deliberate, and premeditated’ murder establishes that he acted with 

express malice sufficient to sustain his conviction under the amended law and 

Petitioner ineligible for sentencing as a matter of law.].) 

“Thus, with regard to the element pursuant to Penal Code § 1172.6(a)(3), 

the record of conviction demonstrates, beyond a reasonable doubt, that Petitioner 

Lord personally acted with the intent to kill and was, and continues to be, guilty of 

‘willful, deliberate and premeditated’ attempted murder, including under 

California law as amended by the changes to §§ 188 or 189 made effective 

January 1, 2019. 

“As such, the prima facie case fails as a matter of law and fact. Petitioner 

Lord is ineligible for relief as a matter of law, and is not entitled to resentencing. 

The Petition is denied with prejudice.” 

ANALYSIS

The Record of Conviction Conclusively Establishes Lord is Ineligible for Relief as a 

Matter of Law

Lord contends that the trial court erred by denying his petition for resentencing at 

the prima facie stage. We disagree. 

A. 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). [Citation.] 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. [Citation.] The Legislature also amended the 
4.

natural and probable consequences doctrine by adding subdivision (a)(3) to section 188, 

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

participation in a crime.’ ” (People v. Harden (2022) 81 Cal.App.5th 45, 50-51; People

v. Strong (2022) 13 Cal.5th 698, 707-708.)

“Senate Bill 1437 also created a special procedural mechanism for those convicted 

under the former law to seek retroactive relief under the law as amended,” initially 

codified in former section 1170.95. (People v. Strong, supra, 13 Cal.5th at p. 708.) The 

initial version of former section 1170.95 permitted “a person with an existing conviction 

for felony murder or murder under the natural and probable consequences doctrine to 

petition the sentencing court to have the murder conviction vacated and to be resentenced 

on any remaining counts if he or she could not have been convicted of murder as a result 

of the other legislative changes implemented by Senate Bill No. 1437].” (People v.

Flores (2020) 44 Cal.App.5th 985, 992.)

Effective January 1, 2022, Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate 

Bill 775) made substantive amendments to former section 1170.95 that were consistent 

with our Supreme Court’s decision in People v. Lewis (2021) 11 Cal.5th 952, 972

(Lewis), and also “ ‘[c]larifie[d] that persons who were convicted of attempted murder or 

manslaughter under a theory of felony murder and the natural [and] probable 

consequences doctrine are permitted the same relief as those persons convicted of murder 

under the same theories.’ ” (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn.

18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)

On June 30, 2022, the statute was renumbered as section 1172.6 without further 

substantive changes. (See People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.)

Section 1172.6, subdivision (a) provides the following:

“(a) A person convicted of felony murder or 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, attempted murder 

under the natural and probable consequences doctrine, or manslaughter may file a 

petition with the court that sentenced the petitioner to have the petitioner’s murder, 

attempted murder, or manslaughter conviction vacated and to be resentenced on 

any remaining counts when all of the following conditions apply:
5.

“(1) A complaint, information, or indictment was filed against the petitioner 

that allowed the prosecution to proceed under a theory of felony murder, murder 

under the natural and probable consequences doctrine or other theory under which 

malice is imputed to a person based solely on that person’s participation in a 

crime, or attempted murder under the natural and probable consequences doctrine.

“(2) The petitioner was convicted of murder, attempted murder, or 

manslaughter following a trial or accepted a plea offer in lieu of a trial at which 

the petitioner could have been convicted of murder or attempted murder.

“(3) The petitioner could not presently be convicted of murder or attempted 

murder because of changes to [s]ection 188 or 189 made effective January 1, 

2019.” (§ 1172.6, subd. (a).) 

The superior court shall appoint counsel if requested by petitioner. (§ 1172.6,

subd. (b)(3).) After service of the petition, the prosecutor shall file and serve a response. 

The petitioner may file and serve a reply after the response is served. (Id. at subd. (c).) 

“After the parties have had an opportunity to submit briefings, the court shall hold a 

hearing to determine whether the petitioner has made a prima facie case for relief. If the 

petitioner makes a prima facie showing that the petitioner is entitled to relief, the court 

shall issue an order to show cause. If the court declines to make an order to show cause, 

it shall provide a statement fully setting forth its reasons for doing so.” (§ 1172.6, subd.

(c).)

The prima facie determination is a question of law, and the superior court may 

deny a petition if the petitioner is ineligible for resentencing as a matter of law. (Lewis,

supra, 11 Cal.5th at p. 966.) At the prima facie stage, the 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, 

quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980.)
6.

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 must issue an order to show 

cause.” ’ [Citations.] ‘[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.” ’ ” (Lewis, supra, 11 Cal.5th at p. 971.)

If the petitioner makes the requisite prima facie showing he or she is entitled to 

relief under section 1172.6, the superior court must issue an order to show cause and hold 

an evidentiary hearing to determine whether to vacate the murder, attempted murder, or 

manslaughter conviction and resentence the petitioner on any remaining counts. 

(§ 1172.6, subd. (d)(1).) 

We review de novo an order denying a petition under section 1172.6, without 

issuing an order to show cause. (People v. Williams (2022) 86 Cal.App.5th 1244, 1251; 

People v. Coley (2022) 77 Cal.App.5th 539, 545; People v. Harrison (2021) 73 

Cal.App.5th 429, 437.)

B. Analysis

Lord entered a plea of no contest to willful, premeditated and deliberate attempted 

murder and he admitted to an enhancement for the personal infliction of GBI in the 

commission of that offense. As discussed further below, his conviction could not have 

been based upon a theory of imputed malice, such as the natural and probable 

consequences doctrine, and he is therefore ineligible for resentencing relief under section 

1172.6 as a matter of law. 

“Attempted murder requires the specific intent to kill and the commission of a 

direct but ineffectual act toward accomplishing the intended killing.” (People v.

Lee (2003) 31 Cal.4th 613, 623.) “[U]nlike murder, attempted murder is not divided into 
7.

degrees. The prosecution, though, can seek a special finding that the attempted murder 

was willful, deliberate, and premeditated, for purposes of a sentencing enhancement.” 

(People v. Mejia (2012) 211 Cal.App.4th 586, 605.) An aider and abettor may be 

convicted of the premeditation penalty provision even though he or she did not personally 

deliberate or premeditate the act of murder. (People v. Lee, supra, 31 Cal.4th at pp. 624-

625.) However, he or she must still possess the intent to kill. (Id. at pp. 623-624.)

Here, in entering his guilty plea, Lord expressly admitted that he had acted with 

the intent to kill. The factual basis for his plea was based upon the following written 

admission: “I attempted to murder a human being by a willful, deliberate and 

premeditated act and personally caused great bodily injury to that person.” “ ‘Willful’ is 

synonymous with ‘express malice’: in other words, a specific intent to kill. [Citation.] 

Premeditation occurs when the [attempted] killing is ‘ “considered beforehand,” ’ and 

deliberation occurs when the decision to kill is ‘ “formed or arrived at or determined 

upon as a result of careful thought and weighing of considerations for and against the 

proposed course of action.” ’ ” (People v. Mejia, supra, 211 Cal.App.4th at p. 604.) 

Regardless of whether Lord or his trial counsel wrote these statements, Lord 

admitted the truth of these facts and they are binding upon him. (See People v. Romero

(2022) 80 Cal.App.5th 145, 152-153 [A defendant’s admissions in entering a guilty plea 

“pursuant to a negotiated plea” are not “ ‘ “ ‘stray comment[s]’ ” ’ ”; to the contrary, they 

are binding and part of the record of conviction].)

Lord nonetheless contends that his admissions did not foreclose the possibility that 

malice was imputed to him as the aider and abettor to a non-murder target offense. 

According to Lord, his admissions could be interpreted to mean that he “ ‘personally 

caused great bodily injury’ to Ramirez and that he committed ‘a willful, deliberate, and 

premeditated act’ in furtherance of a target crime, which thereby exposed him to liability 

for his co-perpetrator’s premeditated attempted murder.” Lord’s argument is premised 

upon the possibility that he was convicted as an aider to a non-murder act. However, 
8.

Lord’s admission to the personal infliction of great bodily injury in the commission of 

the crime of attempted premeditated murder forecloses such a possibility. 

Section 12022.7, subdivision (a) provides: “Any person who personally inflicts 

great bodily injury on any person other than an accomplice in the commission of a felony 

or attempted felony shall be punished by an additional and consecutive term of 

imprisonment in the state prison for three years.” (Italics added.) By enacting section 

12022.7, “the Legislature intended to impose an additional penalty for causing great 

bodily injury only on those principals who perform the act that directly inflicts the injury, 

and that one who merely aids, abets, or directs another to inflict the physical injury is not 

subject to the enhanced penalty of section 12022.7.” (People v. Cole (1982) 31 Cal.3d 

568, 571, italics added; People v. Rodriguez (1999) 69 Cal.App.4th 341, 348-349 

[same].) “Accordingly, ‘one who merely aids, abets, or directs another to inflict the 

physical injury is not subject to the enhanced penalty of section 12022.7.’ ” (People v. 

Slough (2017) 11 Cal.App.5th 419, 423.) Thus, Lord was convicted as the direct 

perpetrator of a premeditated attempted murder, and not as an aider and abettor to a nonmurder crime to whom malice may have been imputed. Lord is therefore ineligible for 

section 1172.6 resentencing relief as a matter of law. 

DISPOSITION 

The trial court’s order denying Lord’s petition for resentencing is affirmed.