Filed 1/27/21 P. v. Leslie CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

DESHAWN LESLIE,

Defendant and Appellant.

B301848

(Los Angeles County

Super. Ct. No. TA091536)

APPEAL from an order of the Superior Court of 

Los Angeles County, H. Clay Jacke II, Judge. Affirmed.

Susan K. Shaler, 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, Idan Ivri and Roberta L. Davis, Deputy 

Attorneys General, for Plaintiff and Respondent.

________________________
2

In 2008, a jury convicted defendant and appellant Deshawn 

Leslie of the first degree murder of Ivan Nieves. Leslie’s 

accomplice was the actual killer. After passage of Senate Bill 

No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), Leslie 

petitioned for resentencing pursuant to Penal Code section 

1170.95.1 After appointing counsel for Leslie and considering 

briefing by the parties, the court denied the petition because 

Leslie’s jury was not instructed on felony murder or the natural 

and probable consequences doctrine, and he was convicted as a 

direct aider and abettor. Leslie appeals, contending that the jury 

might have relied on the natural and probable consequences 

theory despite the absence of instruction on it, and the trial court 

erred by relying on this court’s opinion in his direct appeal. We 

disagree, and affirm the court’s order.

FACTUAL AND PROCEDURAL BACKGROUND2

1. The murder

Leslie was a member of the Tree Top Piru criminal street 

gang. Leslie’s cousin, known as “Day-Day,” and William Davis 

were also members of the gang. The Segundos, a Hispanic gang, 

and the Tree Top Piru gang were rivals. Segundo gang members 

were known to wear blue baseball caps. 

1 All further undesignated statutory references are to the 

Penal Code.

2 At Leslie’s request, we have taken judicial notice of this 

court’s records in his direct appeal, case No. B206632. (Evid. 

Code, §§ 452, subd. (d), 459.) We derive the factual and 

procedural background primarily from our prior opinion, which is 

part of the record of conviction. 
3

On April 22, 2006, Day-Day was shot and wounded. 

Members of the Tree Top Piru gang believed the Segundo gang 

was responsible. That evening, Davis asked Leslie to drive him 

around so he could “ ‘look and see if anybody [was] out.’ ” Leslie 

agreed. Davis was armed with a gun. Leslie drove down Lime 

Avenue in Compton, an area claimed as the Segundo gang’s 

territory. A second vehicle, driven by another Tree Top Piru gang 

member, followed behind Leslie’s car.

Nieves, who was Latino, was seated in his Mustang on 

Lime Avenue, wearing a blue Dodgers baseball cap. He was not a 

member of any gang. Leslie parked his car in front of Nieves’s 

Mustang. He knew Davis intended to “ ‘bang on [Nieves] and ask 

him where he was from,’ ” i.e., challenge Nieves by asking for his 

gang affiliation. Davis exited the car, walked over to Nieves, 

and—believing Nieves was a Segundo gang member—fired 

numerous rounds at him. Eight shots hit Nieves, killing him.

2. Leslie’s conviction and direct appeal

At Leslie’s trial, the prosecution advanced two theories: 

that Leslie could be found guilty of first degree murder as an 

aider and abettor, or under a conspiracy theory. The jury 

convicted him of first degree murder. It also found true principalarmed and criminal street gang enhancements. (§§ 12022.53, 

subd. (d), 186.22, subd. (b)(1).) The trial court sentenced Leslie to 

50 years to life in prison, plus a consecutive life term. 

This court affirmed Leslie’s judgment in 2009. (People v. 

Leslie (Mar. 18, 2009, B206632) [nonpub. opn.].)

3. The section 1170.95 petition 

On January 29, 2019, Leslie filed a section 1170.95 

resentencing petition. Using a preprinted form, he checked boxes 

stating that a charging document had been filed against him 
4

allowing the prosecution to proceed under a felony-murder theory 

or the natural and probable consequences doctrine; he was 

convicted of first or second degree murder under one of those 

theories; he could not now be convicted of murder in light of 

changes to the law wrought by Senate Bill 1437; he was not the 

actual killer, nor did he aid and abet the actual killer with the 

intent to kill; he was not a major participant in the felony and did 

not act with reckless indifference to human life; and the victim 

was not a peace officer. He also requested the appointment of 

counsel. 

The trial court appointed counsel for Leslie. The People 

opposed the petition on the grounds that Leslie was convicted as 

a direct aider and abettor, not pursuant to the natural and 

probable consequences doctrine or the felony-murder rule.3

Leslie argued, through his appointed counsel, that based on his 

version of events, he did not intend to kill, and he did not know 

Davis planned to shoot Nieves. 

After a hearing conducted pursuant to section 1170.95, 

subdivision (d)(3), the trial court denied the motion. It found that 

Leslie was not convicted under the felony-murder rule or the 

natural and probable consequences doctrine, and acted as an 

aider and abettor with the intent to kill. Therefore, his 

conviction remained valid under current law. 

3 The People also argued that Senate Bill 1437 was 

unconstitutional. The trial court did not deny the petition on this 

basis, and Senate Bill 1437’s constitutionality is not at issue here. 
5

Leslie filed a timely notice of appeal. 

DISCUSSION

Leslie contends the trial court erred by relying on this 

court’s opinion in his direct appeal, and—despite the fact the jury 

was not instructed on the natural and probable consequences 

doctrine—it could nevertheless have found him guilty of murder 

based on this theory. We disagree.

1. Senate Bill 1437

Senate Bill 1437, which took effect on January 1, 2019,

limited accomplice liability under the felony-murder rule and 

eliminated the natural and probable consequences doctrine as it 

relates to murder, to ensure that a person’s sentence is 

commensurate with his or her individual criminal culpability. 

(People v. Cruz (2020) 46 Cal.App.5th 740, 752; People v. Verdugo 

(2020) 44 Cal.App.5th 320, 323, review granted Mar. 18, 2020, 

S260493; People v. Munoz (2019) 39 Cal.App.5th 738, 749–750, 

763, review granted Nov. 26, 2019, S258234.)

Prior to passage of Senate Bill 1437, under the natural and 

probable consequences doctrine a defendant was “liable for 

murder if he or she aided and abetted the commission of a 

criminal act (a target offense), and a principal in the target 

offense committed murder (a nontarget offense) that, even if 

unintended, was a natural and probable consequence of the 

target offense.” (People v. Lamoureux (2019) 42 Cal.App.5th 241, 

248; People v. Munoz, supra, 39 Cal.App.5th at p. 749, rev.gr.) 

Senate Bill 1437 amended section 188 to state that malice may

not be imputed to a person based solely on his or her

participation in a crime. (§ 188, subd. (a)(3).) Thus, pursuant to 

Senate Bill 1437, where the felony-murder rule is not at issue, a 
6

person must act with malice to be convicted of murder. (People v. 

Munoz, at p. 749.) 

2. Section 1170.95’s petitioning procedure

Senate Bill 1437 also added section 1170.95, which created 

a procedure whereby persons convicted of murder under a felonymurder or natural and probable consequences theory may 

petition in the sentencing court for vacation of their convictions 

and resentencing. A defendant is eligible for relief under section 

1170.95 if he meets three conditions: (1) he must have been 

charged with murder under a theory of felony murder or murder 

under the natural and probable consequences doctrine, (2) must 

have been convicted of first or second degree murder, and 

(3) could no longer be convicted of first or second degree murder 

due to changes to sections 188 and 189 wrought by Senate Bill 

1437. (§ 1170.95, subd. (a).) 

Evaluation of a section 1170.95 petition requires a multistep process: an initial review to determine the petition’s facial 

sufficiency; a prebriefing, “first prima facie review” to 

preliminarily determine whether the petitioner is statutorily 

eligible for relief as a matter of law; and a second, postbriefing 

prima facie review to determine whether the petitioner has made 

a prima facie case that he or she is entitled to relief. (People v. 

Tarkington (2020) 49 Cal.App.5th 892, 897, review granted 

Aug. 12, 2020, S263219; People v. Verdugo, supra, 44 Cal.App.5th 

at pp. 327–330, rev.gr.; People v. Nguyen (2020) 53 Cal.App.5th 

1154, 1165–1166.) If the petitioner makes such a showing, the

court must issue an order to show cause (OSC) and conduct a 

hearing to determine whether to vacate the murder conviction 
7

and resentence the petitioner on any remaining counts. 

(§ 1170.95, subds. (c), (d); People v. Nguyen, at pp. 1165–1166.)

4

 

At that hearing, the burden of proof is on the prosecution to 

prove, beyond a reasonable doubt, that the petitioner is ineligible 

for resentencing. Both the People and the petitioner may rely on 

the record of conviction, including an appellate opinion in the 

case, and, where appropriate, may also present additional 

evidence to demonstrate the petitioner is, or is not, entitled to 

resentencing. (§ 1170.95, subd. (d)(3); see People v. Tarkington, 

supra, 49 Cal.App.5th at pp. 899, fn. 5, 909, rev.gr.; People v. 

Verdugo, supra, 44 Cal.App.5th at p. 333, rev.gr.) “If the 

prosecution fails to sustain its burden of proof, the prior 

conviction, and any allegations and enhancements attached to 

the conviction, shall be vacated and the petitioner shall be 

resentenced on the remaining charges.” (§ 1170.95, subd. (d)(3);

People v. Nguyen, supra, 53 Cal.App.5th at p. 1166.)

3. Because Leslie was not convicted under the felonymurder rule or the natural and probable consequences doctrine,

he is ineligible for relief 

Leslie is not eligible for relief under section 1170.95 

because the jury instructions conclusively show he was convicted 

based on a theory—direct aiding and abetting—that survives 

Senate Bill 1437’s amendments to sections 188 and 189. 

“[P]otential relief under section 1170.95 extends only to those 

convicted of murder by operation of the natural and probable 

4

It does not appear that the trial court issued an OSC in the 

instant matter, but the record shows the parties and the court 

considered the hearing to be pursuant to section 1170.95, 

subdivision (d)(3).
8

consequence doctrine or of felony murder. [Citation.]” (People v.

Soto (2020) 51 Cal.App.5th 1043, 1056 (Soto), review granted 

Sept. 23, 2020, S263939; § 1170.95, subd. (a)(3); People v. Lee

(2020) 49 Cal.App.5th 254, 263–265, review granted July 15,

2020, S262459.) Leslie’s jury was not instructed on either the

natural and probable consequences doctrine or the felony-murder

rule; therefore, he could not have been convicted based on either

of these theories. (Soto, at p. 1055 [trial court may rely on jury

instructions when determining whether petitioner has made a

prima facie showing of entitlement to relief]; People v. Edwards

(2020) 48 Cal.App.5th 666, 674, review granted July 8, 2020,

S262481 [where jury instructions showed petitioner was not

convicted under felony-murder or natural and probable

consequences theories, he could not meet the statutory

prerequisites for filing a § 1170.95 petition]; People v. Lewis

(2020) 43 Cal.App.5th 1128, 1138, review granted Mar. 18, 2020,

S260598 [where court file shows petitioner was convicted of

murder without instruction or argument on the felony-murder

rule or the natural and probable consequences doctrine, summary

denial would be appropriate].)

Instead, Leslie was convicted of willful, deliberate, and 

premeditated murder as a direct aider and abettor. To render 

that verdict, the jury necessarily determined he acted with the 

intent to kill. As this court explained in its 2009 opinion: “The 

instruction on murder stated that the perpetrator was guilty of 

first degree murder if he acted willfully, deliberately, and with 

premeditation. It further stated that ‘[t]he defendant acted

willfully if he intended to kill.’ CALCRIM No. 401 advised that,

to be guilty as an aider and abettor, Leslie had to have known

that the perpetrator intended to commit the crime, i.e., murder,
9

and ‘intended to aid and abet the perpetrator in committing the

crime.’ If a defendant knows the perpetrator intends to commit

murder, and intends to aid the perpetrator in committing the

murder, the aider and abettor necessarily intends to kill.”

(People v. Leslie, supra, B206632.)

Because the jury necessarily found Leslie acted with 

express malice, he could still be convicted under current law. 

Senate Bill 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. Lewis, supra, 43 Cal.App.5th at p. 1135, rev.gr.; People v. 

Verdugo, supra, 44 Cal.App.5th at pp. 335–336, rev.gr. [petitioner 

ineligible where conviction for premeditated murder required 

specific intent to kill]; People v. Nguyen, supra, 53 Cal.App.5th at 

p. 1164 [direct aiding and abetting theory is still viable after 

passage of Sen. Bill 1437]; Soto, supra, 51 Cal.App.5th at

pp. 1056–1057, rev.gr.) 

Leslie does not dispute that the prosecution relied on a 

direct aiding and abetting theory at trial, and that the jury was 

instructed that malice was required to find him guilty. At the 

hearing on the petition, Leslie’s counsel conceded that the jury 

concluded he was a direct aider and abettor. Nonetheless, Leslie 

advances several arguments in support of his contention that he 

is entitled to resentencing. None has merit. 

Leslie hypothesizes that the jury could have convicted him 

based on the natural and probable consequences doctrine, despite 

the fact it was never instructed on it. He points out that 
10

CALCRIM No. 520 uses the phrase “natural consequences” in its 

definition of implied malice.

5 From this, he argues that the jury 

could have concluded he “harbored the requisite intent for 

murder by committing an act, the ‘natural consequences’ of which 

were dangerous to human life.” 

A similar argument was rejected in Soto, supra, 51 

Cal.App.5th 1043, review granted. There, the “natural 

consequences” language was contained in both the implied malice 

instruction and in a second degree murder instruction. (Id. at 

p. 1056.) After discussing the “distinctly different concepts” 

underlying aiding and abetting and the natural and probable 

consequences doctrine (ibid.), the court observed that Soto’s jury 

had not been instructed on any target offense upon which the 

natural and probable consequences theory could have been based.

“The ‘natural consequences’ language in the instruction for 

second degree murder does not transform [defendant’s] conviction 

into one for murder under the natural and probable consequences 

doctrine within the meaning of section 1170.95.” (Id. at 

pp. 1058–1059; see People v. Edwards, supra, 48 Cal.App.5th at 

p. 674, rev.gr. [fact instruction and argument included phrase 

5 As provided to Leslie’s jury, CALCRIM No. 520 stated in 

relevant part: “There are two kinds of malice aforethought, 

express malice and implied malice. Proof of either is sufficient to 

establish the state of mind required for murder. [¶] The 

defendant acted with express malice if he unlawfully intended to 

kill. [¶] The defendant acted with implied malice if: [¶] 1. He 

intentionally committed an act; [¶] 2. The natural consequences 

of the act were dangerous to human life; [¶] 3. At the time he 

acted, he knew his act was dangerous to human life; [¶] AND [¶] 

4. He deliberately acted with conscious disregard for human life.”
11

“natural and probable consequences” did not demonstrate 

petitioner was charged or convicted under that doctrine].) 

The same is true here. Leslie’s jury was not instructed on a 

target crime or on the natural and probable consequences theory 

of liability. The notion that the jury could have vaulted from the

single phrase “natural consequences” in the implied malice 

instruction, to full consideration of a natural and probable 

consequences theory upon which it was never instructed, is 

fanciful. Moreover, the jury here did not rely on an implied 

malice theory: it found Leslie guilty of first degree murder, 

which—based on the instructions given—required a finding he 

committed the murder willfully, intentionally, and with 

premeditation. 

In a further attempt to show his jury could have adopted a 

natural and probable consequences theory, Leslie reasons that at 

trial, the parties discussed whether a natural and probable 

consequences instruction should be given; thus, there must have 

been substantial evidence to support such an instruction; and 

therefore, the jury might have convicted based on that theory. 

But the conclusion does not follow from the premise.6 The salient 

point is that the jury was not instructed on the doctrine, 

regardless of the content of the parties’ discussions. Equally 

unpersuasive is Leslie’s assertion that the “jury was not bound by 

the prosecutor’s theory.” The jury was bound by the instructions, 

which we presume it followed. (See, e.g., People v. Silveria and 

6

In fact, during the parties’ discussion the prosecutor 

averred that there was insufficient evidence of a target crime to 

support a natural and probable consequences instruction. At the 

hearing on the petition, Leslie’s counsel echoed that sentiment. 
12

Travis (2020) 10 Cal.5th 195, 245 [court presumes jury 

“understood and followed” instructions].) The instructions given 

did not allow reliance on the natural and probable consequences 

doctrine.7 

Leslie also contends that the trial court resolved the wrong 

question. In his view, the issue before the court was whether the 

jury could have convicted him on a theory that is no longer valid. 

In other words, he appears to assert that, if there was evidence 

from which the jury could have found him guilty on a natural and 

probable consequences theory in addition to a direct aiding and 

abetting theory, his petition should have been granted. But 

7 Leslie’s citations to People v. Barton (1995) 12 Cal.4th 186, 

People v. Webster (1991) 54 Cal.3d 411, and People v. Guerra 

(1985) 40 Cal.3d 377, are unavailing. The cited portion of Barton 

discussed the standard for instruction on a lesser included 

offense, a conceptually distinct issue from that here. (People v. 

Barton, at p. 203.) In Webster, the defendant took both a key and 

a vehicle from the victim, and the jury instructions did not 

specify which item was the object of the robbery. To determine 

whether the evidence was sufficient, the court considered 

whether each item was taken by means of force and fear and 

from the victim’s person or immediate presence. In this regard, 

the court reasoned that it could “not uphold the robbery findings 

unless we conclude there was substantial evidence to support all 

the robbery theories before the jury.” (People v. Webster, at 

pp. 439–443 & fn. 16.) The cited portion of Webster has no 

relevance to the questions at issue here. And in Guerra, the court 

instructed on both felony murder and premeditated murder; our 

Supreme Court reasoned that there was “no principled way” for it 

to determine which theory the jury adopted. (People v. Guerra, at 

pp. 387–388.) In other words, unlike the situation here, the jury 

was actually instructed on both theories. 
13

based on the plain language of section 1170.95, the touchstone is 

whether the petitioner could not be convicted under current law. 

The People’s task, therefore, is to show the converse, that the 

petitioner could be convicted of murder despite Senate Bill 1437’s 

amendments to sections 188 and 189. Where a jury has already 

found petitioner guilty on a theory requiring malice, this fact

necessarily proves he could be convicted of murder despite Senate 

Bill 1437’s amendments. Even assuming arguendo that there 

was sufficient evidence to prove guilt on a natural and probable 

consequences theory, this circumstance would not detract from 

the ineligibility showing.

Leslie next argues that the court erred by relying on this 

court’s 2009 opinion.

8

 This contention fails for at least three 

reasons. First, section 1170.95 expressly states that at a

subdivision (d)(3) hearing, the parties may rely on “the record of 

conviction.” (§ 1170.95, subd. (d)(3).) An appellate opinion is part 

of the record of conviction. (See, e.g., People v. Lewis, supra,

43 Cal.App.5th at p. 1136, fn. 7, rev.gr.; People v. Verdugo, supra,

44 Cal.App.5th at p. 333, rev.gr.; People v. Tarkington, supra,

4 Cal.App.5th at p. 899, fn. 5, rev.gr.) Second, Leslie did not 

object to the trial court’s reliance on the 2009 opinion; therefore, 

he has forfeited this contention. (Evid. Code, § 353, subd. (a).) 

Third, even if the trial court erred, any misstep was harmless. 

“[R]egardless of the trial court’s reliance on the facts in this 

court’s prior opinion to explain how the malice element of murder 

8 Our Supreme Court is currently considering whether 

superior courts may consider the record of conviction in 

determining whether a defendant has made a prima facie 

showing of eligibility for relief under section 1170.95. (People v. 

Lewis, S260598.)
14

may have been satisfied at [defendant’s] trial, the jury 

instructions themselves demonstrate as a matter of law that 

[defendant] could not make a prima facie showing that he is 

entitled to relief.” (Soto, supra, 51 Cal.App.5th at p. 1055, 

rev.gr.)

In sum, because the jury instructions given conclusively 

demonstrate as a matter of law that Leslie was not convicted of 

murder under a natural and probable consequences or felonymurder theory, the trial court correctly denied his section 1170.95 

petition. (Soto, supra, 51 Cal.App.5th at p. 1059, rev.gr.) 

Because the trial court did not err, Leslie’s contention that his 

due process rights were violated necessarily fails.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

DHANIDINA, J.