1

Filed 9/24/24 P. v. Saddozai CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

SHIKEB SADDOZAI,

Defendant and Appellant.

 

 A168408

 (San Mateo County Super. Ct. No. 

16-NF001414A)

Shikeb Saddozai appeals from the trial court’s dismissal of 

his resentencing petition under Penal Code section 1172.6, which 

he asserts requires vacatur of his conviction for attempted 

murder.

1 His appellate counsel filed a brief identifying no issues 

as grounds for relief, complying with the procedure established in 

People v. Delgadillo (2022) 14 Cal.5th 216, 222, 231-232

(Delgadillo). Saddozai then filed a supplemental brief raising a 

variety of issues. Because his contentions lack merit, we affirm 

the trial court’s judgment.

BACKGROUND

A.

To be convicted of murder, a jury must ordinarily find that 

the defendant acted with the requisite mental state, known as 

1 Undesignated statutory references are to the Penal Code. 
2

“ ‘malice aforethought.’ ” (People v. Chun (2009) 45 Cal.4th 1172, 

1181 (Chun), quoting § 187, subd. (a).) Prior to 2019, however, 

under an exception known as the natural and probable 

consequences doctrine, a “ ‘ “person who knowingly aids and 

abets [the] criminal conduct [of another person] is guilty of not 

only the intended crime . . . but also of any other crime the [other 

person] actually commits . . . that is a natural and probable 

consequence of the intended crime.” ’ ” (People v. Chiu (2014) 59 

Cal.4th 155, 161; see also People v. Curiel (2023) 15 Cal.5th 433, 

449 (Curiel).) In addition, the felony murder rule provided an 

exception that made “a killing while committing certain felonies 

murder without the necessity of further examining the 

defendant’s mental state.” (Chun, at p. 1182.)

In 2019, Senate Bill No. 1437 ((2017-2018 Reg. Sess.), 

Stats. 2018, ch. 1015) raised the level of culpability required for 

murder liability to be imposed under these theories. (See Stats. 

2018, ch. 1015, § 1.) It amended the definition of malice 

in section 188 to provide that “[m]alice shall not be imputed to a 

person based solely on his or her participation in a crime.” (§ 

188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) The bill also 

amended section 189, which defines the degrees of murder, to 

limit murder liability based on felony murder or a natural and 

probable consequences theory to a person who: (1) was the actual 

killer; (2) though not the actual killer, acted “with the intent to 

kill” and “aided, abetted, counseled, commanded, induced, 

solicited, requested, or assisted the actual killer” in the 

commission of first degree murder; or (3) was “a major 

participant in the underlying felony and acted with reckless 

indifference to human life, as described in subdivision (d) of 

Section 190.2.” (§ 189, subd. (e); Stats. 2018, ch. 1015, § 3.)

Section 1172.6 provides a procedural mechanism by which 

defendants who believe they could not be convicted of murder or 

attempted murder under the amended versions of sections 188 
3

and 189 may petition the trial court for relief. As relevant here, 

it provides that a “person convicted of . . . attempted murder 

under the natural and probable consequences doctrine” may file a 

petition to vacate that conviction and be resentenced on any 

remaining counts. (§ 1172.6, subd. (a).) The individual may file a 

petition if three conditions are met: “(1) A complaint, information, 

or indictment was filed against the petitioner that allowed the 

prosecution to proceed under a theory of . . . attempted murder 

under the natural and probable consequences doctrine. [¶] (2) 

The petitioner was convicted of . . . attempted murder . . . 

following a trial . . . at which the petitioner could have been 

convicted of . . . attempted murder. [¶] (3) The petitioner 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).) The petition must include a declaration that 

the petitioner is eligible for relief based on the requirements set 

forth in subdivision (a), the superior court case number and year 

of the conviction, and a statement indicating whether the 

petitioner requests the appointment of counsel. (§ 1172.6, subd. 

(b)(1).)

If the petitioner has complied with these requirements, the 

court appoints counsel (if requested), receives briefing from the 

parties, and determines whether the petitioner has made a prima 

facie case for relief (§ 1172.6, subds. (b)(3), (c); see Curiel, supra,

15 Cal.5th at p. 450.) If so, the court must issue an order to show 

cause and hold an evidentiary hearing at which the burden is on 

the prosecution to prove that the petitioner is ineligible for relief. 

(§ 1172.6, subds. (c), (d); Curiel, at p. 450.) If the petition and the 

record of conviction establish conclusively that the petitioner is 

not eligible for relief, however, the trial court may dismiss the 

petition for failure to make out a prima facie case. (Curiel, at pp. 

460, 463.)
4

B.

The conviction at issue in this appeal relates to an incident 

in which Saddozai stalked, burglarized, and attempted to murder 

his ex-girlfriend, Jane Doe. (See People v. Saddozai (Mar. 16, 

2021, A154894) [nonpub. opn.].) Angry that Doe had ended their 

relationship, he broke into her apartment and waited for her to 

come home, at which point he chased her with a knife, yelling 

“ ‘I’m gonna get you.’ ” (Ibid.) Saddozai pursued Doe out of her 

apartment, to the building’s leasing office, where she took refuge. 

(Ibid.) When Saddozai was unable to force the door open, he ran 

to the apartment complex’s pool, where another resident saw him 

holding a knife and heard him repeatedly say, “ ‘I want to kill the 

bitch.’ ” (Ibid.)

In June 2017, a jury convicted Saddozai of attempted 

willful, deliberate, and premeditated murder (§§ 664, 187, subd. 

(a)); first degree burglary (§ 460, subd. (a)); stalking (§ 646.9, 

subd. (a)); misdemeanor exhibiting a deadly weapon (§ 417, subd.

(a)(1)); misdemeanor possession of burglar’s tools (§ 466); and 

misdemeanor battery of a person the defendant formerly dated (§ 

243, subd. (e)(1)). (People v. Saddozai, supra, A154894.) The jury

also found true an allegation that Saddozai personally used a 

deadly weapon—a knife—during the commission of the crime of 

attempted willful, deliberate, and premeditated murder (§ 12022,

subd. (b)(1)).

C.

Saddozai filed a section 1172.6 petition alleging that the 

information filed against him had allowed the prosecution to 

proceed under a natural and probable consequences theory, that 

he was convicted of attempted murder before 2019, and could not 

now be convicted of attempted murder because of the 2019 

amendments to sections 188 and 189. Saddozai also requested 

appointment of counsel.
5

Saddozai was initially represented by appointed defense

counsel Jai Gohel, who filed a brief in reply to the People’s 

opposition to the petition. Based on a breakdown in

communication between Saddozai and his attorney, the court 

subsequently granted a motion for substitution of counsel under 

People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The court then

ordered that a new attorney be appointed to represent Saddozai 

in the section 1172.6 petition.

After attorney Brian C. McComas was appointed to 

represent him, Saddozai made another Marsden motion, which 

the court denied. Saddozai then sought to represent himself

under Faretta v. California (1975) 422 U.S. 806, but the court 

denied his motion. During the same hearing, he unsuccessfully 

moved to disqualify the judge, Lisa Novak, based on bias under 

Code of Civil Procedure section 170.6. Saddozai later made 

another Marsden motion, which the court again denied.

At the hearing on his section 1172.6 petition, Saddozai was 

represented by McComas. Saddozai personally moved, again 

unsuccessfully, to disqualify the judge, Elizabeth K. Lee, under 

Code of Civil Procedure section 170.6.

In denying his section 1172.6 petition, the court concluded 

that Saddozai had not established a prima facie case for relief. 

The court reasoned that the jury was instructed on neither felony 

murder nor the natural and probable consequences doctrine, and 

the only theory of attempted murder presented to the jury 

remains valid under current law. The court further reasoned 

that the verdict forms established that Saddozai was the actual 

perpetrator of the attempted murder, that the jury found him 

guilty of “attempted, willful, deliberate[,] and premeditated 

deadly murder,” and the jury also found he used a deadly or 

dangerous weapon (a knife) in committing that crime. As a 

result, the court determined, “the record establishes that he acted 
6

with the intent to kill and premeditation and deliberation when 

he attempted to murder Jane Doe with a knife.”

DISCUSSION

Where, as here, the petitioner has filed a supplemental 

brief in compliance with the procedures established in Delgadillo, 

we issue an opinion addressing the arguments presented in that 

brief. (Delgadillo, supra, 14 Cal.5th at p. 232.) We

independently review the trial court’s determination that 

Saddozai did not make a prima facie showing of eligibility for 

relief under section 1172.6. (See People v. Morales (2024) 102 

Cal.App.5th 1120, 1131.) We likewise review de novo the other 

legal questions presented in Saddozai’s supplemental brief. (See, 

e.g., People v. Rells (2000) 22 Cal.4th 860, 870.) Applying these 

standards, we affirm the trial court’s dismissal of Saddozai’s

section 1172.6 petition.

A.

Eligibility for Relief Under Section 1172.6

Saddozai contends that because the allegations in his 

petition sufficed to establish a prima facie case for relief under 

section 1172.6, the trial court erred in dismissing his petition. He 

argues that, in dismissing his petition, the trial court improperly

engaged in fact finding. We disagree. 

In assessing whether a petitioner has made out a prima 

facie case under section 1172.6, the trial court may consider 

whether the allegations in the petition are refuted by the record 

of conviction. (Curiel, supra, 15 Cal.5th at p. 460.) The record of 

conviction includes the court’s own documents, such as the clerk’s 

transcript, trial court minutes, jury instructions, verdict forms, 

and prior appellate opinions. (See, e.g., People v. Beaudreaux

(2024) 100 Cal.App.5th 1227, 1232; People v. Maldonado (2023) 

87 Cal.App.5th 1257, 1269; People v. Allen (2023) 97 Cal.App.5th 

389, 395, fn. 4.) Jury findings are “generally preclusive” in 
7

section 1172.6 petitions. (Curiel, at pp. 453-454.) The trial court 

may dismiss the petition without an evidentiary hearing if the

petition, together with the record of conviction, conclusively 

establishes that the defendant is not eligible for relief. (Id., at p. 

450.) 

The trial court here correctly determined that Saddozai’s 

attempted murder conviction was not based on the natural and 

probable consequences doctrine. The verdict form indicates the 

jury found him guilty of “Attempted Willful, Deliberate, And 

Premeditated Murder” in violation of sections 664 and 187, 

subdivision (a), as alleged in count one of the information. Count 

one of the operative information alleged that Saddozai “did 

unlawfully and with malice aforethought” attempt to murder 

Doe, thereby committing “Attempted Willful, Deliberate, and 

Premeditated Murder.” And, the verdict form indicates that the

jury found true the allegation that Saddozai “personally used a 

deadly or dangerous weapon . . . [a] [k]nife . . . during the 

commission of the crime of Attempted Willful, Deliberate[,] and 

Premeditated Murder.” (§ 12022, subd. (b)(1)). 

Further, neither the jury instructions nor the prosecution’s 

closing argument relied on the natural and probable 

consequences doctrine for attempted murder. Because the trial 

court relied on the jury instructions, but they were not included 

in the record on appeal, we take judicial notice of the portion of 

the clerk’s transcript and reporter’s transcript containing the jury 

instructions in the record of Saddozai’s direct appeal (A154894). 

The court instructed the jury that “[t]o prove that the defendant 

is guilty of attempted murder, the People must prove that: [¶] . . . 

[t]he defendant took at least one direct but ineffective step 

toward killing another person” and “[t]he defendant intended to 

kill that person.” (CALCRIM No. 600.) Likewise, the People 

argued Saddozai had the intent to kill Doe and took at least one 

step toward doing so based on his arming himself with a knife, 
8

his statement to a bystander that he was going to kill her, and 

his pursuit of Doe and other actions. The jury thus necessarily 

found that Saddozai intended to kill Doe and personally used a 

knife to attempt to kill her; Saddozai was convicted of attempted 

murder based on his own actions and mental state, rather than 

his participation in another person’s criminal act. 

Saddozai asserts there were “plausible factual scenarios” in 

which he “did not have the specific intent to kill or malice,” but 

the jury’s verdict necessarily excludes any such scenarios.

Saddozai additionally contends that, in denying his 

petition, the trial court relied on evidence not heard by the jury. 

But this mischaracterizes the trial court’s determination, which 

relied only on the record of conviction.

In sum, because Saddozai could not have been convicted 

based on a natural and probable consequences theory, the trial 

court properly dismissed his petition. (See People v. Coley (2022) 

77 Cal.App.5th 539, 548.)

B.

Claims of Judicial Bias

Saddozai raises both statutory and constitutional claims 

concerning bias by Judges Novak and Lee, who presided over 

proceedings related to his section 1172.6 petition. Neither set of 

claims has merit.

First, Saddozai challenges the denial of his motions under 

Code of Civil Procedure section 170.6 to disqualify the judges for

bias. Saddozai has forfeited his statutory argument, however, by 

failing to file a timely petition for writ of mandate—the sole 

method for obtaining review of denial of a disqualification motion. 

(See Code Civ. Proc., § 170.3, subd. (d); People v. Nieves (2021) 11 

Cal.5th 404, 498, fn. 13 (Nieves).)
9

Second, Saddozai argues that the denial of his motions 

violated his due process right to a fair and impartial judge. To 

succeed on his due process claim, he must show a constitutionally 

intolerable probability that the judge was actually biased—a 

standard met only in extreme circumstances. (People v. Freeman

(2010) 47 Cal.4th 993, 996, 1001, 1005.) The question is whether 

the record reflects an intolerable possibility that the judge had an 

interest in the outcome of Saddozai’s proceeding, such as a 

pecuniary interest, personal interest based on a relationship to a 

party, or a discriminatory prejudice. (See Nieves, supra, 11 

Cal.5th at p. 499.) Based on the record here, Saddozai has not 

come close to meeting this standard. 

Saddozai concedes that he had no prior relationship with 

either judge. He complains that Judge Lee muted his 

microphone and cut him off while he was speaking. But the 

record reflects that Saddozai was represented by counsel at the 

time, and Judge Lee muted Saddozai’s microphone because “he 

[was] not willing to listen to the Court and hear what the Court 

ha[d] to say,” he was “talking over . . . his counsel,” and “the court 

reporter [was] asking for one at a time.” 

Finally, the fact that the prosecution successfully 

challenged another judge does not suggest that the judges who 

rejected Saddozai’s challenges were biased against him. Even 

assuming the rulings were erroneous, mistaken rulings alone do 

not establish judicial bias. (See People v. Farley (2009) 46 Cal.4th 

1053, 1110.)
10

C.

Challenges Relating to Saddozai’s Trial and Arrest

Saddozai raises numerous claims of error relating to his 

original trial and arrest by police.

2 But relief under section 

1172.6 is limited to cases in which the defendant “could 

not presently be convicted of murder or attempted murder 

because of changes to Section 188 or 189 made effective January 

1, 2019.” (§ 1172.6, subd. (a)(3), italics added.) Assertions of trial 

error or challenges to the sufficiency of the evidence at trial are 

not cognizable in this appeal. (See People v. Farfan (2021) 71 

Cal.App.5th 942, 947 (Farfan).)

2 Saddozai contends that his conviction was the result of 

false, coerced, and biased testimony; juror misconduct; and 

discrimination and misconduct by the police, prosecution, trial 

judge, and court-appointed defense investigator. He argues that 

evidence was improperly excluded; other evidence was 

improperly admitted; potentially exculpatory evidence was not 

collected, preserved, or disclosed; and the evidence at trial was 

insufficient to support the jury’s verdict. He asserts that his trial 

and direct appeal counsel were ineffective. He seeks to challenge 

the trial court’s decision to allow the victim to proceed under a 

pseudonym, as well as the court’s denial of his motion for a new 

trial based on evidence not presented to the jury. He argues his 

trial was unlawful because he was not indicted by a grand jury.

He also contends that the police used unlawful and excessive 

force against him during his arrest and illegally seized his cell 

phone. And he claims a variety of trial errors in the context of 

his arguments that his section 1172.6 counsel provided 

ineffective assistance in failing to pursue them as a basis for 

resentencing relief.
11

D.

Ineffective Assistance of Counsel Claims as to Saddozai’s 

Section 1172.6 Petition

Saddozai contends that he received constitutionally 

ineffective assistance from the attorneys representing him in his 

section 1172.6 petition in the trial court and in this appeal. We 

disagree.

Our Supreme Court has held that a defendant in an appeal 

from the denial of a section 1172.6 petition does not have a 

constitutional right to counsel. (Delgadillo, supra, 14 Cal.5th at 

pp. 222, 226-227; People v. Lewis (2021) 11 Cal.5th 952, 973.) 

Because Saddozai has a statutory right to the appointment of 

counsel (see § 1172.6, subd. (b)(3)), however, we assume without 

deciding that he also has a statutory right to competent counsel. 

(Cf. In re Clark (1993) 5 Cal.4th 750, 780.)

To establish ineffectiveness of counsel, Saddozai must show 

that his attorney’s performance was deficient and that the 

attorney’s deficient performance prejudiced his defense, depriving 

him of a fair trial. (See Strickland v. Washington (1984) 466 U.S. 

668, 687.)

Here, Saddozai’s attorneys’ omission of arguments 

unrelated to the 2019 amendments to sections 188 and 189 did 

not constitute deficient performance because such arguments are 

not cognizable in a section 1172.6 petition. (See § 1172.6, subd. 

(a)(3); People v. Hernandez (2024) 103 Cal.App.5th 1111, 1122-

1123; Farfan, supra, 71 Cal.App.5th at p. 947.) Similarly lacking 

in merit is Saddozai’s argument that his appellate counsel’s 

preparation of the appellate record was inadequate because he 

declined to conduct an independent fact investigation aimed at

“impeach[ing]” the case presented by the prosecution at trial. 

Further, contrary to Saddozai’s contention, his counsel’s 

determination that there are no arguable issues and filing of a 
12

no-issues brief did not create a conflict of interest. (See 

Delgadillo, supra, 14 Cal.5th at p. 222; People v. Wende (1979) 25 

Cal.3d 436, 442 & fn. 3, disapproved of on other grounds by In re 

Sade C. (1996) 13 Cal.4th 952.) Similarly, we reject Saddozai’s 

argument that the trial court erred in failing to take action in 

response to his appointed counsel’s purported conflict of interest.

Finally, even assuming his attorneys were deficient in some 

way, Saddozai’s ineffective assistance claim would fail because he 

is unable to establish prejudice. As we have explained, he is 

ineligible for relief under section 1172.6, and the outcome would 

have been no different absent the alleged mistakes by his 

attorneys. For the same reason, Saddozai’s appellate counsel was 

not ineffective for declining to brief ineffective assistance of 

counsel claims concerning the attorneys who litigated his section 

1172.6 petition in trial court.

DISPOSITION

The trial court’s order denying the petition is affirmed.

BURNS, J. 

WE CONCUR:

JACKSON, P.J.

SIMONS, J.

P. v. Saddozai (A168408)