Filed 6/28/21 P. v. Rogers CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

MORRIS ROGERS,

Defendant and Appellant.

 B303800

 (Los Angeles County

 Super. Ct. No. A383323)

APPEAL from an order of the Superior Court of Los 

Angeles County, Mark S. Arnold, Judge. Reversed and remanded

with directions.

Derek K. Kowata, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Daniel C. Chang and Peggy Z. Huang, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________
2

A jury convicted Morris Rogers of one count of second

degree murder (Pen. Code,

1 §§ 187, subd. (a), 189) and two counts 

of assault with a deadly weapon (§ 245, subd. (a)(1)). The jury 

found not true the allegation that he personally used a firearm 

(§ 12022.5), but found true the allegation that a principal was 

armed with a firearm (§ 12022, subd. (a)). Rogers was sentenced 

to 21 years to life in state prison.

In 2018, Rogers sought resentencing relief pursuant to 

section 1170.95.2 On December 6, 2019, the superior court found 

that Rogers failed to make a prima facie case for relief and denied 

his petition. It found Rogers was not entitled to relief because he 

directly aided and abetted in the murder and because the natural 

and probable consequences theory was not presented as a basis 

for the jury’s verdict.

On appeal, Rogers argues that the superior court erred in 

not issuing an order to show cause and in impermissibly 

weighing the evidence during the court’s prima facie review. As 

we describe below, because the record does not show as a matter 

of law that Rogers was guilty of murder under a still-valid theory, 

we conclude the superior court erred in denying Rogers’s section 

1170.95 petition. We reverse with instructions for the superior

court to issue an order to show cause and conduct a hearing 

pursuant to section 1170.95, subdivision (d).

1 All unspecified statutory references are to the Penal Code.

2 Rogers filed a petition for writ of habeas corpus, which 

the trial court treated as a petition for section 1170.95 

resentencing relief.
3

BACKGROUND

A. Factual Summary

We provide a truncated summary of the facts derived from 

our ruling on Rogers’s 2001 petition for writ of habeas corpus, 

People v. Rogers (Jan. 9, 2003, B148541) (Rogers), which, in turn, 

derived facts from our direct appeal opinion, People v. Smith 

(Jun. 12, 1985, 2d Crim. No. 45051) [nonpub. opn.].

Rogers, Frederick Butler, Virgil Gulley, Raymond Flynn, 

Avery Smith, Vernon Nash, and Eric Morgan were members of a 

gang known as the 90th Street Hoover Crips. On May 24, 1982, 

they expressed a desire for revenge upon another gang, the 92nd 

Street Hoover Crips. Rogers said he “wanted to knock somebody 

out.” According to Butler, this meant that Rogers wanted to 

fight. Smith displayed a gun to fellow gang member Gulley and 

said, “I’m ready to get off now,” meaning that he wanted to shoot 

someone. Someone else said that he wanted to “check out the 

92nd Street gang,” meaning that he wanted to engage in a fight. 

(Rogers, supra, B148541, at pp. 2-3.)

That evening, the group went to the vicinity of 95th Street 

and Hoover. Rogers, Flynn, and Smith stood in the driveway of 

an auto wrecking yard, and the others stayed back, near a 

neighboring apartment house. (Rogers, supra, B148541, at p. 3.)

Butler saw Rogers, Flynn, and Smith standing side by side 

with their arms outstretched. He saw all three men holding

guns. He heard four to five shots and saw flashes from Flynn’s 

and Smith’s guns. He did not see who fired the first shot and did 

not see all three fire shots but to deflect suspicion from himself, 

he told the police that he saw all three shoot. (Rogers, supra,

B148541, at p. 3.)
4

Gulley saw Rogers, Flynn, and Smith with a gun that 

night. At the preliminary hearing, however, he could not recall 

anyone other than Smith having a gun. (Rogers, supra, B148541, 

at p. 3.)

Tyran Martin was visiting with Charles Poole and Kim 

Gaines when the shooting began. He was wounded in the 

shoulder and leg. There were three or four guns that fired 10 to 

15 shots. Martin could not tell how many people were shooting. 

(Rogers, supra, B148541, at p. 4.)

Poole, who is known as “Squirrel,” was seated in his car 

when he heard what sounded like firecrackers. Gaines fell onto 

him. Poole looked toward the auto wrecking yard, where he saw 

flashes of gunfire. He saw more than one and possibly three 

guns. Gaines died as a result of the shooting. Poole suffered 

gunshot wounds to the abdomen and leg. (Rogers, supra, 

B148541, at p. 4.)

After the shooting, the group fled the scene. Rogers and 

Smith encountered William Fray. Rogers pointed a gun at Fray

from a distance of three feet. (Rogers, supra, B148541, at p. 4.)

While running from the scene, Flynn boasted to Gulley, 

“Yeah that was Squirrel out there. I shot . . . Squirrel.” (Rogers, 

supra, B148541, at p. 5.)

Rogers, Flynn, and Smith were charged with Gaines’s 

murder and assault with a deadly weapon on Poole and Martin. 

Butler and Gulley were granted immunity to testify for the 

prosecution. (Rogers, supra, B148541, at p. 5.)

B. Trial and Direct Appeal

At trial, the People did not attempt to establish which 

defendant shot Gaines. Although the court instructed on natural 

and probable consequences liability for murder, the People did 
5

not argue that theory to the jury. Rather, the People argued each 

of the defendants were principals and equally guilty because they 

aided and abetted in the commission of the murder.

The trial court instructed the jury pursuant to CALJIC 

Nos. 3.00, which defined principals, and 3.01, which set forth the 

elements for aiding and abetting. In part, CALJIC No. 3.00 

instructed that, “One who aids and abets is not only guilty as a 

principal of the particular crime that to his knowledge his 

confederates are contemplating committing, but he is also liable 

as a principal for the natural and reasonable or probable 

consequences of any act that he knowingly aided or encouraged.”

As to CALJIC No. 3.01, the trial court instructed the jury 

that “A person aids and abets the commission of a crime if, with 

knowledge of the unlawful purpose of the perpetrator of the 

crime, he aids, promotes, encourages or instigates by act or 

advice the commission of such crime.”

The jury convicted Rogers, Flynn, and Smith of second 

degree murder as to Gaines and two counts of assault with a 

deadly weapon as to Poole and Martin. They found true the 

allegation that Smith and Flynn personally used a firearm, but 

did not find that allegation true as to Rogers. The jury also found 

true the allegation that a principal was armed with a firearm.

This court affirmed the judgment against Rogers and his 

codefendants on June 12, 1985.

3 On direct appeal, all three 

defendants argued that the court’s use of CALJIC Nos. 3.00 and 

3.01 was erroneous under People v. Beeman (1984) 35 Cal.3d 547

(Beeman). (People v. Smith, et al., supra, 2d Crim. No. 45051.) In 

3 We remanded the matter for resentencing due to an error 

in Flynn’s sentence.
6

Beeman, our Supreme Court held that CALJIC No. 3.01 was 

defective because the instruction did not explicitly state that an 

aider or abettor must have the intent or purpose either of 

committing, or of encouraging or facilitating commission of, the 

offense. (Beeman, supra, at p. 560.) We concluded that CALJIC 

No. 3.00 suffered from the same defect, citing People v. Caldwell

(1984) 36 Cal.3d 210, 223-224.

We agreed that the trial court committed instructional 

error under Beeman, but found the error to be harmless.

4

Notably, we stated that all three defendants shot at Gaines and 

that the jury had found true the allegation that all three 

defendants personally used a firearm. (People v. Smith, et al., 

supra, 2d Crim No. 45051, at pp. 6-7, 20.) As we later 

determined, these factual findings were erroneous.

C. Habeas Corpus Proceedings

In 2001, Rogers filed a petition for writ of habeas corpus

alleging ineffective assistance of appellate counsel. He argued 

counsel failed to raise errors “which ultimately mislead this court 

on direct appeal in reaching unreasonable factual findings 

regarding the Beeman error claim.”

4 In our direct appeal opinion, we conducted our harmless 

error analysis pursuant to People v. Garcia (1984) 36 Cal.3d 539. 

(See People v. Smith, et al., supra, 2d Crim. No. 45051, at p. 6.) 

Thereafter, our Supreme Court held that in cases of Beeman

error, we should apply the higher harmless error standard as 

articulated in Chapman v. California (1967) 386 U.S. 18, 24 [87 

S.Ct. 824, 17 L.Ed.2d 705]. (People v. Dyer (1988) 45 Cal.3d 26, 

64.) In our 2003 denial of Rogers’s petition for writ of habeas 

corpus, we applied the Chapman standard and acknowledged the 

Garcia standard was no longer applicable.
7

On January 9, 2003, this court issued an order denying the 

habeas petition. (Rogers, supra, B148541.) In that order, we 

acknowledged that our harmless error analysis on direct appeal 

as to Rogers was based on factual mistakes, concluding that 

“[t]he evidence does not establish as a matter of law that he was 

one of the shooters. . . . [¶] Based upon [the] evidence, the jury 

found to be not true, as to Rogers, all allegations that he 

personally used a firearm.” (Id. at p. 7.)

Nonetheless, we again determined the Beeman error was 

harmless. We noted that the evidence established that Rogers 

sought revenge for a fellow gang member; he wanted to fight 

members of the rival gang; and he was present when Smith 

expressed a desire to kill rival gang members. Further, there 

was evidence from which the jury could conclude that Rogers 

went to the site of the shooting with a handgun and pointed it as 

if he intended to shoot, “as well as inconsistent statements from 

the same witnesses that would cast doubt on at least the latter 

part of that conclusion.” We found Rogers’s mere presence 

encouraged the shootings, and he actively collaborated with the 

group to go forth and seek revenge. We concluded, “The evidence 

against Rogers is susceptible of but a single interpretation: he 

accompanied the others to the site of the shooting knowing they 

at least intended to assault rival gang members and intending to 

encourage and facilitate that criminal conduct. The evidence 

therefore establishes Rogers’s intent as a matter of law, and 

there is no contrary evidence worthy of consideration.” (Rogers,

supra, B148541, at p. 9.)

D. Section 1170.95 Petition

On October 17, 2018, Rogers filed a petition with the 

superior court seeking resentencing relief pursuant to section 
8

1170.95. The court appointed counsel, and the parties submitted 

opposition and reply briefs. To their briefs, the parties attached 

relevant portions of our direct appeal opinion and a complete copy 

of our 2003 order.5 The parties presented a portion of the trial 

transcript to the court, which included the court’s instructions to 

the jury and counsel’s closing arguments.

On December 6, 2019, the court denied Rogers’s section 

1170.95 petition. In describing the salient facts in its ruling, the

court observed that the three defendants discussed a desire for 

revenge, a witness saw three people pointing guns at rival gang 

members, and shots were fired. Fray testified that he 

encountered Rogers as Rogers left the scene of the shooting and 

that Rogers pointed a gun at him. The court stated that, “[t]his is 

not a natural and probable consequences case. A natural and 

probable consequences case is one where the suspect intends to 

commit a target crime, but a different crime then occurs. Under 

natural and probable consequences, the suspects would be liable

for the crime that occurred if it was a natural and probable 

consequence of the target crime. In this case, the intent was to 

seek revenge against rival gang members, which was why the 

defendant and the codefendants were armed. This is a direct 

5 Rogers attached a copy of CALJIC No. 3.00 (1976 rev.) 

and CALJIC No. 3.01 (1974 rev.) to his reply brief. It is not clear 

whether these records are from Rogers’s trial. The text of these 

instructions differ in insubstantial ways from the instructions the 

court read to the jury. The appellate record also includes one

page of the amended abstract of judgment dated August 25, 1999. 

The clerk of the Los Angeles County Superior Court was unable 

to find a copy of the accusatory pleading, the abstract of 

judgment, or the probation officer’s report.
9

aider and abettor case.” The court dismissed the petition without 

issuing an order to show cause.

Rogers timely appealed the order.

DISCUSSION

A. Legal Framework

Prior to the enactment of Senate Bill No. 1437, a defendant 

who aided and abetted a crime that resulted in a victim’s death 

could be convicted of murder under a natural and probable 

consequences theory even if the defendant did not act with 

malice. (People v. Offley (2020) 48 Cal.App.5th 588, 595.) The 

Legislature enacted Senate Bill No. 1437 “to amend the felony 

murder rule[6] 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).)

Senate Bill No. 1437 did not alter the viability of a murder 

conviction based on direct aiding and abetting liability. (People v. 

Offley, supra, 48 Cal.App.5th at p. 596 [“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”].) For direct aider and abettor liability, “the aider and 

abettor must possess malice aforethought.” (People v. Gentile

(2020) 10 Cal.5th 830, 844; see People v. McCoy (2001) 25 Cal.4th 

1111, 1118 [one who directly aids and abets in murder “must 

6 The felony murder rule is not at issue in this appeal.
10

know and share the murderous intent of the actual 

perpetrator”].)

Senate Bill No. 1437 also enacted section 1170.95, which 

provides a vehicle for persons who were convicted of murder 

pursuant to a now invalidated theory to petition to have their 

conviction vacated and to be resentenced. (People v. Lewis (2020) 

43 Cal.App.5th 1128, 1135, review granted Mar. 18, 2020, 

S260598; see § 1170.95 subd. (a).)

Section 1170.95 sets forth a multistep decision-making

process. First, a petitioner must make a prima facie showing 

that he was “ ‘convicted of felony murder or murder under a 

natural and probable consequences theory,’ ” and that “ ‘all of the 

following conditions apply: [¶] (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 for first degree or 

second degree murder. [¶] (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.’ ” (People v. 

Nguyen (2020) 53 Cal.App.5th 1154, 1164, citing § 1170.95, 

subd. (a).)

At these initial stages, “the ‘trial court should not evaluate 

the credibility of the petition’s assertions, but it need not credit 

factual assertions that are untrue as a matter of law . . . . [I]f the 

record “contain[s] facts refuting the allegations made in the 

petition . . . the court is justified in making a credibility 

determination adverse to the petitioner.” [Citation.] However, 
11

this authority to make determinations without conducting an 

evidentiary hearing pursuant to section 1170.95, [subdivision] (d) 

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 . . . .’ 

[Citation.]” (People v. Nguyen, supra, 53 Cal.App.5th at pp. 1165-

1166.) A petitioner fails to establish a prima facie showing if the 

petition is untrue as a matter of law. (Ibid.; see People v. 

Swanson (2020) 57 Cal.App.5th 604, 612, review granted Feb. 17, 

2021, S266262 [stating that the “contents of the record of 

conviction defeat a prima facie showing when the record shows as 

a matter of law that the petitioner is not eligible for relief”]; but 

see People v. Garcia (2020) 57 Cal.App.5th 100, 116, review 

granted Feb. 10, 2021, S265692 [“The trial court should not 

accept the petitioner’s assertions as true and issue an order to 

show cause if substantial evidence in the record supports a 

murder conviction under current law”].)

“ ‘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.’ ” (People v. Offley, supra, 48 Cal.App.5th at p. 596, 

quoting § 1170.95, subd. (c).) Thereafter, “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).) “The prosecutor and the petitioner may rely on the 

record of conviction or offer new or additional evidence to meet 

their respective burdens.” (Ibid.)

B. The Resentencing Court Erred in Denying Rogers’s

Petition During Its Prima Facie Review

Rogers argues that the resentencing court erred in denying 

his petition without issuing an order to show cause and holding 
12

an evidentiary hearing. He maintains the court impermissibly 

engaged in factfinding during its prima facie review to conclude 

that he was guilty of murder as a direct aider and abettor. 

Respondent argues the court properly found the petition failed as 

a matter of law because Rogers was prosecuted as a direct aider 

and abettor. We agree with Rogers.

Given the procedural peculiarities of this case, Rogers’s 

record of conviction did not establish as a matter of law that 

Rogers was a direct aider and abettor. As we acknowledged in 

both our direct appeal opinion and our 2003 order, due to the 

Beeman instructional error, neither CALJIC No. 3.00 nor 

No. 3.01 required the jury to find Rogers intended to commit 

murder. Thus, nothing in the trial record establishes that Rogers 

harbored the required mens rea to hold him culpable as a direct 

aider and abettor. To the contrary, the instructions advised the 

jury they could convict Rogers if the murder was “the natural and 

reasonable or probable consequence[ ] of any act that he 

knowingly aided or encouraged” (CALJIC No. 3.00), and if he 

acted “with knowledge of the unlawful purpose of the 

perpetrator” (CAJLIC No. 3.01). These instructions allow for a 

possibility that the jury convicted him under a natural and 

probable consequences theory that is no longer valid.

In our 2003 order, we did not determine that the evidence 

established Rogers harbored malice in the commission of the 

murder as is now required for a conviction for murder as an aider 

and abettor. Rather, in applying the harmless error standard for 

prejudicial error, we considered whether Rogers had “ ‘the intent 

to encourage and bring about conduct that is criminal, not the 

specific intent that is an element of the target offense.’ ” (Rogers,

supra, B148541, at p. 8.) We applied the existing understanding 
13

of the Chapman standard to conclude that “the murder verdict 

surely [was] not attributable to the [instructional] error.” 

(Rogers, supra, at p. 8.) We concluded the record showed that 

Rogers “accompanied the others to the site of the shooting 

knowing they at least intended to assault rival gang members 

and intending to encourage and facilitate that criminal conduct.” 

(Id. at p. 9.) Our holding suggests that the facts supported a 

verdict based on application of the natural and probable 

consequences doctrine. (See People v. Duke (2020) 55 Cal.App.5th 

113, 122, review granted Jan. 13, 2021, S265309 [noting that the 

harmless error analysis in the direct appeal opinion concluded 

only that the defendant could have been convicted under the 

natural and probable consequences doctrine]; cf. People v. Lewis, 

supra, 43 Cal.App.5th at pp. 1138-1139 [concluding that the 

harmless error analysis in the direct appeal opinion foreclosed 

§ 1170.95 relief because “[t]he issue whether [the] defendant 

acted as a direct aider and abettor had thus been litigated and 

finally decided against [the] defendant”].) Thus, nothing in the 

record of conviction before the resentencing court permitted it to 

conclusively determine Rogers was a direct aider and abettor.

Accordingly, the matter must be remanded for an order to 

show cause pursuant to section 1170.95, subdivision (c), and a 

hearing pursuant to section 1170.95, subdivision (d), during 

which the parties “may rely on the record of conviction or offer 

new or additional evidence to meet their respective burdens.” 

(§ 1170.95, subd. (d)(3).) We express no opinion on Rogers’s

ultimate entitlement to relief following the evidentiary hearing.
14

DISPOSITION

The order denying Rogers’s petition for resentencing under 

section 1170.95 is reversed and the matter is remanded to the 

superior court. On remand, the superior court shall issue an 

order to show cause and conduct a hearing in accordance with 

section 1170.95, subdivisions (c) and (d).

NOT TO BE PUBLISHED

FEDERMAN, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.