1

Filed 8/29/23 P. v. Williams CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

KEITH WILLIAMS, JR.,

Defendant and Appellant.

C096809

(Super. Ct. No. 10F02827)

In 2013, defendant Keith Williams, Jr., was convicted of first degree murder with 

special circumstances of lying in wait and active participation in a street gang, as well as 

attempted premeditated murder. In 2021, he filed a petition for resentencing pursuant to 

former Penal Code section 1170.95, which the trial court summarily denied. On appeal, 

he argues that the trial court erred in denying his petition, as he made a prima facie 

showing that he was entitled to relief, notwithstanding the fact the jury found true two 

special circumstances associated with the murder charge that required a finding of 

specific intent to kill as well as a separate finding of premeditation while committing the 
2

attempted murder. As explained below, we affirm the denial of the petition as to 

defendant’s murder conviction but must reverse as to his attempted murder conviction.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

The following background is taken from this court’s nonpublished opinion in 

defendant’s direct appeal, People v. Williams (Sept. 29, 2015, C076196):

“Around 11:00 p.m. on May 19, 2009, Ja’Ron Franklin was sitting in his front 

yard with his friend and neighbor, Paul Cousins. Franklin saw two males he did not 

recognize walking on the other side of the street. The shorter[1]of the two men crossed 

the street and started firing a gun at them. The man stumbled and dropped the weapon, 

then picked it up, pointed it at Franklin and Cousins, and asked for their possessions. 

After Cousins and Franklin replied that he had the wrong people, the man fired into 

Cousins’s chest. Franklin tried to take cover behind a green electrical box, but was shot 

six times. Franklin survived but Cousins died, also having sustained multiple gunshot 

wounds. According to Franklin, the taller male fled with the shorter man after the 

shooting.

“David Rodriguez, who lived nearby, heard gunshots as he was about to go to bed 

that night. He looked out an upstairs window and heard a couple of men running to a car. 

He then saw a white Cadillac coupe drive off with its headlights off.

“Marquice Corona shared siblings with Cousins and was very close to him. 

Cousins told him that he hung out with members of the Gunz street gang. These 

members were Cousins’s friends. About a month before he was killed, Cousins told 

1 “Franklin testified that the shorter man was about five feet five inches or five feet 

six inches tall and the taller one was between 5 feet 11 inches and six feet one inch tall. 

He admitted that he had told officers at the scene of the shooting that the shooter and the 

other man were both about 5 feet 10 inches tall. Defendant is 5 feet 10 inches tall.”
3

Corona that he was getting into it with some guys from Starz. Cousins said some people 

‘want problems with him.’ At that time, Gunz was ‘beefing’ with the StarzUp gang. 

While he was never a member of the Gunz gang, when Cousins had problems with 

members of Starz, he would represent himself to be a Gunz guy.

“Kevin Robinson, a member of the Starz gang, contacted law enforcement with 

information about the case, a conversation he had with Deandre Ellison concerning 

defendant’s involvement in the shooting. Ellison agreed to give information about the 

shooting in exchange for assistance in a pending case.[2] He told officers that defendant 

‘got into [it] with some GunzUp dude’ and began shooting.[3]

“After conversing with law enforcement, Ellison decided to write a letter to 

defendant in order to learn more about the shooting. Defendant replied by telling him 

that ‘two people got hit’ and that he emptied a nine-millimeter handgun. Law 

enforcement set up three pretext calls between Ellison and defendant, who was on 

juvenile probation at the Woodward Academy in Iowa. They also asked Ellison to 

duplicate from memory the letter he sent to defendant.

“During the first pretext call, defendant told Ellison there were ‘two of them’ and 

he ‘emptied the whole bag,’ a term for using all the bullets. Defendant also said he used 

a ‘nip,’ which meant a nine-millimeter handgun. In the second pretext call, defendant 

claimed responsibility for several other shootings. He also referred to details of the 

charged shooting, such as seeing two men sitting on the ‘little green thing,’ a reference to 

the green electrical box at Franklin’s house. Defendant also mentioned a white Cadillac 

and claimed to have been the shooter. At one point during the second call, Ellison asked 

2 “Ellison died before the trial and his preliminary hearing testimony was read to the 

jury.”

3 “Ellison had told an officer that defendant said he had ‘got into it’ with people 

from ‘Gunz down.’ Defendant is a member of the Starz street gang.”
4

defendant, ‘And them, them was GDs[4] wasn’t they?’ Defendant replied: ‘Yeah. Cause, 

cause, cause, I, uh hit him up with it and they, they threw it back at me, so that’s how I 

knew they was one.’ According to defendant, ‘they said what’s up,’ and so he ‘melted 

them.’ Defendant also took credit for being the shooter in the third pretext call.

“Defendant, testifying on his own behalf, said that in 2009 he was 17 years old 

and a member of the StickUp Starz gang. On the night of the shooting, defendant was at 

a friend’s recording studio with Ellison and some others. Defendant left in a white 

Cadillac with two men, thinking they were going to a party; he sat in the back seat and 

was intoxicated. On the way, the men stopped the car and got out, one of them, ‘Bama,’

started to shoot. All three of them ran away after the shooting. A few days later, 

defendant called Ellison and told him about the shooting.

“Defendant admitted to the shooting in his correspondence with Ellison because 

he did not want to appear to be weak within his gang.” (People v. Williams, supra

C076196.) 

B. Procedural Background

Defendant’s jury was instructed, inter alia, with CALCRIM Nos. 400, 401, 403, 

601, 705, 728, and 736, but was not instructed with CALCRIM No. 702.

The jury found defendant guilty of first degree murder and found true the special 

circumstances of lying in wait and active participation in a criminal street gang (Pen.

Code, §§ 187, subd. (a), 190.2, subd. (a)(15) & (a)(22))5 and attempted premeditated 

murder (§§ 187, subd. (a), 664). The jury found the allegations that defendant personally 

used and/or discharged a firearm during the offenses not true. The jury also found the 

allegation that defendant personally inflicted great bodily injury upon the attempted 

4 “According to Ellison, ‘GD’ refers to the Gunz Down gang.”

5 Undesignated statutory references are to the Penal Code.
5

murder victim to be not true. The trial court sentenced defendant, who was a juvenile 

when the crimes were committed, to 32 years to life. (People v. Williams, supra, 

C076196.) 

On appeal, a different panel of this court affirmed defendant’s convictions. In 

particular, this court agreed the trial court erred in giving CALCRIM No. 403 on liability 

for first degree murder under a natural and probable consequences theory because that 

theory of guilt cannot be used to support a conviction for first degree murder. This court

noted that in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), “the Supreme Court said the 

public policy supporting the natural and probable consequences doctrine ‘loses its force 

in the context of a defendant’s liability as an aider and abettor of a first degree 

premeditated murder.’ (Id. at p. 166.) The [Supreme C]ourt explained that the mental 

state for first degree murder is uniquely subjective and personal, and the connection 

between the defendant’s culpability and the perpetrator’s premeditative state is too 

attenuated. (Ibid.)” (People v. Williams, supra, C076196.)

However, this court also noted that under Chiu, aiders and abettors may still be 

convicted of first degree premeditated murder but the “ ‘prosecution must show that the 

defendant aided or encouraged the commission of the murder with knowledge of the 

unlawful purpose of the perpetrator and with the intent or purpose of committing, 

encouraging, or facilitating its commission. [Citation.]’ ” (People v. Williams, supra, 

C076196, quoting Chiu, supra, 59 Cal.4th at p. 167.) This court further quoted Chiu for 

the standard of review when a trial court instructs a jury on two theories of guilt, one of 

which was legally correct and one legally incorrect: “ ‘Defendant’s first degree murder 

conviction must be reversed unless we conclude beyond a reasonable doubt that the jury 

based its verdict on the legally valid theory that defendant directly aided and abetted the 

premeditated murder. [Citation.]’ ” (Williams, supra, C076196, quoting Chiu, supra, 

59 Cal.4th at p. 167.)
6

Utilizing that standard, this court found that “[t]he two theories of accomplice 

liability are not tied to the evidence submitted by the prosecution. The prosecution’s case 

overwhelmingly points to defendant as the shooter.” (People v. Williams, supra, 

C076196.) This court also relied on case law that holds “a jury that finds the defendant 

was lying in wait ‘necessarily’ finds that the defendant also ‘premeditated and intended 

the killings.’ ” (Ibid., quoting People v. Boyette (2002) 29 Cal.4th 381, 436.) This court

found that “[a]s a matter of law, the jury’s true finding on the lying-in-wait special 

circumstance necessarily included the finding that defendant acted with the requisite 

mens rea for first degree murder.” This court concluded that “it is clear beyond a 

reasonable doubt that the jury found that defendant both intended and premeditated the 

killing, the error in instructing with CALCRIM No. 403 on the first degree murder charge 

was harmless.” (People v. Williams, supra, C076196.) 

This court also rejected defendant’s contention that the special circumstance 

findings must be vacated because it could not be determined whether the jury found 

defendant guilty of first degree murder based on the natural and probable consequences 

theory. This court concluded that because both the lying-in-wait and gang-murder

special circumstances each required the jury to find that defendant intentionally killed his 

victim, the jury necessarily found that defendant intended to kill Cousins and there was 

no error regarding the special circumstances. As stated, this court affirmed the 

convictions. However, this court remanded the cause for a new sentencing hearing for

the trial court to exercise its discretion to impose consecutive or concurrent terms.

(People v. Williams, supra, C076916.) Defendant was subsequently resentenced to 25 

years to life.
7

C. Proceedings under Section 1172.6

In July 2021, defendant filed a petition for relief from his murder conviction under 

former section 1170.95 (now section 1172.6).6 The court appointed counsel for 

defendant. The People moved to dismiss the petition, arguing that the special 

circumstance finding of lying in wait demonstrated that the jury found defendant had the 

specific intent to kill. The People also argued that “[a] review of the appellate opinion 

also shows that the defendant was also the actual killer. Both of these findings render 

him ineligible for relief under the plain language of [section] 189(e)(1)-(3).” In response, 

defendant asserted that he was not the actual killer and did not, with intent to kill, aid, 

abet, or assist the actual killer in the commission of murder. He argued that because the 

jury was instructed on the natural and probable consequences theory of liability, he made 

a prima facie showing he was entitled to relief.

The court issued a tentative ruling in which it indicated that the record of 

conviction shows the jury made an express finding of specific intent to kill when it found 

true the lying-in-wait special-circumstance allegation. The court noted this is the malice 

necessary for first degree murder and, as a result, it appears that defendant is ineligible to 

seek relief under section 1172.6. However, the trial court ordered supplemental briefing 

and set the matter for a prima facie hearing.

The parties submitted supplemental briefs consistent with their previous 

arguments. Defendant argued7that the fact that the jury found the allegations that 

defendant personally used or discharged a firearm not true meant that the jury found

6 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no 

substantive changes in the text. (Stats. 2022, ch. 58, § 10.) We refer to the current 

section 1172.6 in this opinion. 

7 Defense counsel sought leave to incorporate defendant’s pro. per. reply into 

counsel’s reply; the trial court granted this request and considered all of defendant’s

arguments.
8

defendant was an aider and abettor and, while the direct perpetrator harbored an intent to 

kill, there was no evidence that defendant harbored such intent as an aider and abettor. 

He also argued the court should not rely on this court’s prior opinion that defendant was 

the actual killer, as it is a factual finding in conflict with the not true findings on the 

firearm and great bodily injury allegations.

Defendant further argued that because the jury was instructed on the natural and 

probable consequences theory of liability, the jury was permitted to find him guilty of 

first degree murder without finding he harbored the intent to kill and by inferring malice 

through his participation in the assault. Defendant criticized the fact that the jury was not 

instructed with CALCRIM No. 702, which would have required the jury to find that 

defendant, as an accomplice, had an intent to kill. Finally, defendant argued that he did 

not, with the intent to kill, aid, abet or assist the actual killer in the commission of the 

murder. Defendant requested an evidentiary hearing regarding his murder conviction 

“and in the interest of justice consider [whether] [he] is entitled to relief for his attempted 

murder conviction.”

At the prima facie hearing, the court stated it reviewed the verdict forms, which 

show that the allegations that defendant used a firearm were found not true and that 

“would seem to be inconsistent and would seem to lend some credibility to [defendant’s]

petition that he was convicted as an aider and abettor . . . because clearly the cause of 

death was a gun, a firearm. [¶] So that lent some support for that, although he was 

convicted of an attempted murder of Jaron Franklin, and the jury did find that attempted 

murder was committed willfully, deliberately and with premeditation which, of course, is 

express malice aforethought and would justify an intent to kill.” But the court also noted

that the jury found two special circumstances to be true. One of those circumstances was 

“the allegation that the murder of Paul Cousins was committed by defendant . . . and that 

defendant intentionally killed the victim while lying in wait within the meaning of Penal 

Code Section 190.2(a)(15).” “They also found true that [defendant] intentionally killed 
9

the victim while he was an active participant in a criminal street gang.” The court then 

cited to this court’s prior decision in which this court stated that “a jury that finds the 

defendant was lying in wait ‘necessarily’ finds that the defendant also ‘premeditated and 

intended the killings.’ ” (People v. Williams, supra, C076196.) The trial court concluded 

that, as a matter of law, the jury’s true finding on the lying-in-wait special circumstance 

necessarily included the finding that defendant acted with the requisite mens rea for first 

degree murder and that because the jury found that defendant intentionally killed the

decedent, he was not eligible for relief under the resentencing statute.

DISCUSSION

A. Additional Background

At trial, the court provided a special instruction that informed the jury that 

defendant was prosecuted under three theories of liability: as a direct perpetrator, aiding 

and abetting, and natural and probable consequences. The instruction further stated: 

“Each of these theories of liability has different requirements, and I will instruct you on 

all theories. [¶] You may not find the defendant guilty of any count unless all of you 

agree that the People have proved that count under at least one of the theories of liability. 

You do not all need to agree on the same theory.”

As for first degree murder, the jury was instructed through CALCRIM No. 520,

modified to omit implied malice. The jury was also instructed, consistent with 

CALCRIM No. 521, that “defendant has been prosecuted for first degree murder under 

the theory that the murder was willful, deliberate, and premeditated.”

Regarding accomplice liability instructions, defense counsel expressed concern 

that because this was “an opened-ended charge of murder” the jurors had to be given 

some guidance as to how to apply the laws in determining a nonshooter’s criminal 

responsibility in the homicide. In response, the trial court modified CALRCIM No. 401 

to instruct the jury that the defendant had to personally have an express intent to kill. 

Defense counsel stated that this resolved his concern regarding accomplice liability.
10

As modified, CALCRIM No. 401 informed the jury in part: “To prove that the 

defendant is guilty of first degree murder based on aiding and abetting that crime, the 

People must prove that: [¶] 1. The perpetrator committed first degree murder; [¶] 2. 

The defendant knew that the perpetrator intended to commit first degree murder; [¶] 3. 

The defendant personally had an express intent to kill; [¶] 4. Before or during the 

commission of the crime, the defendant intended to aid and abet the perpetrator’s 

commission of first degree murder; [¶] AND [¶] 5. The defendant’s words or conduct 

did in fact aid and abet the perpetrator’s commission of first degree murder.” As drafted, 

CALCRIM No. 401 also provided a similar instruction, with the same elements as above 

but as to second degree murder and attempted murder. After providing the elements of 

the three offenses, the instruction then informed the jury “[s]omeone aids and abets a 

crime if he knows of the perpetrator’s unlawful purpose and he specifically intends to, 

and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s 

commission of that crime.”

With CALCRIM No. 403, the jury was instructed as to the natural and probable 

consequence theory as it applied to murder, as charged in count one, and attempted 

murder, as charged in count two, based on the target crime of assault. The jury was 

further instructed, “A coparticipant in a crime is the perpetrator or anyone who aided and 

abetted the perpetrator. It does not include a victim or innocent bystander.”

The jury was also informed that to find the special circumstances of lying in wait 

and active participation in a street gang true, the People had to “prove not only that the 

defendant did the acts charged, but also that he acted with a particular intent or mental 

state. The instruction for each special circumstance explains the intent or mental state 

required.” (CALCRIM No. 705.)

With respect to the special circumstance that defendant committed murder while 

an active participant in a criminal street gang, the jury was instructed in part: “[T]he 

People must prove that: [¶] 1. The defendant intentionally killed Paul Cousins; [¶] 2. 
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At the time of the killing, the defendant was an active participant in a criminal street 

gang; [¶] 3. The defendant knew that members of the gang engage in or have engaged in 

a pattern of criminal gang activity; [¶] AND [¶] 4. The murder was carried out to 

further the activities of the criminal street gang. [¶] Please refer to the separate 

instructions I have given to decide whether the defendant aided and abetted the 

intentional killing of Paul Cousins.” (CALCRIM No. 736.) 

The jury was also separately instructed pursuant to CALCRIM No. 601, that if it 

found defendant guilty of attempted murder, it “must then decide whether the People 

have proved the additional allegation that the attempted murder was done willfully, and 

with deliberation and premeditation” within the meaning of section 664. The instruction 

continued, in part: “The defendant/perpetrator acted willfully if he intended to kill when 

he acted. The defendant/perpetrator deliberated if he carefully weighed the 

considerations for and against his choice and, knowing the consequences, decided to kill. 

The defendant/perpetrator premeditated if he decided to kill before acting. [¶] The

attempted murder was done willfully and with deliberation and premeditation if either the 

defendant or the perpetrator or both of them acted with that state of mind.” (CALCRIM 

No. 601.)

The trial court noted that CALCRIM No. 702 was withdrawn after the parties 

agreed that it did not apply in this case.8

During closing arguments, the prosecutor argued all three theories of liability, 

including the natural and probable consequences for murder and attempted murder. The 

prosecutor told the jury that under the natural and probable consequences doctrine, 

defendant did not have to have an intent to kill and “the gun allegation would go away 

because he didn’t personally use a firearm.”

8 The reason for this was not stated on the record; the trial court stated that after 

much discussion and research, the parties agreed the instruction did not apply.
12

B. Analysis

We begin with Senate Bill No. 1437’s (2017-2018 Reg. Sess.) (Senate Bill 1437)

amendments of sections 188 and 189, the enactment of section 1172.6, and subsequent 

statutory amendments.

As relevant here, “Senate Bill No. 1437 . . . amended the felony-murder rule” and 

“amended the 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; 

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

“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,” codified in 

section 1172.6. (Strong, supra, 13 Cal.5th at p. 708.) The original version of the statute 

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) amended section 1172.6 and “ ‘[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; see People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.)

As relevant here, to make a prima facie case for eligibility under section 1172.6, 

defendant had to show that a complaint, information, or indictment was filed against him

that allowed the prosecution to proceed under a theory of murder or attempted murder 
13

under the natural and probable consequences doctrine. He must also show he was 

convicted of murder or attempted murder and that he could not presently be convicted of 

such because of changes to section 188 or 189. (§ 1172.6, subd. (a).) “When the trial 

court receives a petition containing the necessary declaration and other required 

information, the court must evaluate the petition ‘to determine whether the petitioner has 

made a prima facie case for relief.’ [Citations.] If the petition and record in the case 

establish conclusively that the defendant is ineligible for relief, the trial court may 

dismiss the petition. [Citations.] If, instead, the defendant has made a prima facie 

showing of entitlement to relief, ‘the court shall issue an order to show cause.’ ” (Strong, 

supra, 13 Cal.5th at p. 708, citing People v. Lewis (2021) 11 Cal.5th 952, 970-972 

(Lewis); § 1172.6, subd. (c).)

“[T]he ‘prima facie bar was intentionally and correctly set very low.’ ” (Lewis, 

supra, 11 Cal.5th at p. 972.) The trial court must accept the defendant’s allegations as 

true and “should not engage in ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’ ” (Ibid.) “The record of conviction will necessarily inform the 

trial court’s prima facie inquiry under section [1172.6], allowing the court to distinguish 

petitions with potential merit from those that are clearly meritless. This is consistent with 

the statute’s overall purpose: to ensure that murder culpability is commensurate with a 

person’s actions, while also ensuring that clearly meritless petitions can be efficiently 

addressed as part of a single-step prima facie review process.” (Id. at p. 971.) 

In this case, the trial court denied defendant’s petition at the prima facie stage 

under section 1172.6, subdivision (c). A denial at this stage is appropriate only if the 

record of conviction demonstrates that defendant is ineligible for relief as a matter of law, 

that is, that the record of conviction shows that he was not convicted under a theory of 

liability affected by Senate Bill 1437’s amendments to the law of murder or Senate Bill 

775’s amendments to the law regarding attempted murder. (See People v. Mancilla

(2021) 67 Cal.App.5th 854, 864.) 
14

It is undisputed that if defendant was the actual killer, he would not be entitled to 

relief under section 1172.6. (See People v. Garcia (2022) 82 Cal.App.5th 956, 969-971 

[affirming denial of resentencing because record of conviction “unequivocally 

establishes” the defendant was the sole perpetrator and actual killer].) Although this 

court previously found the evidence “overwhelmingly points to defendant as the shooter,”

in light of the jury’s not true findings on the firearm and great bodily injury allegations,

for purposes of determining whether defendant has made a prima facie case for relief

under section 1172.6, we decline to conclude defendant was the actual shooter. (Cf.

People v. Henley (2022) 85 Cal.App.5th 1003, 1017-1020 [jury’s not true finding on the 

allegation that the defendant personally used a firearm barred the court from concluding 

in a § 1172.6 resentencing proceeding that she did use a firearm].) 

As Senate Bill 1437 and its companion, Senate Bill 775, statutorily eliminated the 

natural and probable consequences doctrine as it relates to murder and attempted murder, 

the question before us is whether, without weighing conflicting evidence or making 

credibility determinations, the record of conviction irrefutably establishes as a matter of 

law that the jury convicted defendant under a legally valid theory of murder and 

attempted murder, i.e. as a direct aider and abettor. (See People v. Harden, supra, 

81 Cal.App.5th at p. 56.)

This is a purely legal conclusion, which we review de novo. (See People v. 

Williams (2022) 86 Cal.App.5th 1244, 1251.)

1. First Degree Murder

As defendant notes, the jury was instructed on three alternative paths to liability 

for both count one and count two: as the actual killer, as a direct aider and abettor of the 

shooter, or as an intentional aider and abettor of an assault. Defendant argues that it is 

reasonably probable the now-abrogated natural and probable consequences doctrine was 

used by one or more jurors as their basis for their findings of guilt as to murder and 

attempted murder as well as the firearm, great bodily injury and special circumstance 
15

allegations, for three reasons. First, he argues the natural and probable consequences 

theory was specifically promoted and heavily relied upon by the prosecutor in closing 

statements, who also stressed that there need not be unanimity on any particular theory of 

liability and gave jurors hypothetical examples of how votes might be split but still 

collectively arrive at a guilty verdict. Next, he argues the jury’s not true findings for the 

firearm and great bodily injury allegations “dovetail precisely” with the prosecutor’s 

suggested outcomes based on the natural and probable consequence doctrine. Finally, he 

argues the jury’s true findings on the special circumstance allegations, which he claims 

were premised on the theory that defendant was the actual killer, are inconsistent with the 

not true findings on the firearm and great bodily injury allegations. He argues the true 

findings could have been based on the natural and probable consequences doctrine, as the 

jury was not provided with an instruction on aider and abettor liability for special 

circumstances through CALCRIM No. 702. We disagree.

At trial, the prosecutor’s argument was not entirely based on the natural and 

probable consequence doctrine. As the People note, the prosecutor argued all three 

theories of liability and, in doing so, repeatedly told the jury that he was only providing 

the “short” version of these instructions; the jury was required to “look at the elements” 

as provided in the instructions. Moreover, a prosecutor’s closing argument does not set 

forth a specific factual basis for a jury’s verdict because a prosecutor’s argument is “not 

binding on the jury or the court.” (People v. Leonard (2014) 228 Cal.App.4th 465, 500.) 

Our Supreme Court has explained, “It is elementary . . . that the prosecutor’s argument is 

not evidence and the theories suggested are not the exclusive theories that may be 

considered by the jury.” (People v. Perez (1992) 2 Cal.4th 1117, 1126.) 

Additionally, and as discussed below, the gang-murder special-circumstance 

allegation was not confined to the theory that defendant was the actual killer but rather 

included the theory of direct aiding and abetting, separate and aside from the natural and 

probable consequences doctrine. Thus, also contrary to defendant’s claim, the jury’s not 
16

true findings on the firearm and great bodily injury allegations do not necessarily mean 

the jury rendered any verdict or finding under the natural and probable consequences 

doctrine in response to the prosecutor’s argument.

Also contrary to defendant’s claim, we find the not true findings on the firearm 

and great bodily injury allegations are not inconsistent with the true findings on the 

special circumstance allegations. The jury’s not true findings on the firearm and great 

bodily injury allegations were the equivalent to an acquittal. Because the burden of proof 

was on the prosecution, an acquittal will usually mean only that the jury was not 

convinced beyond a reasonable doubt of a fact advanced by the prosecution. (People v.

Harrison (2021) 73 Cal.App.5th 429, 440.) Although not considered at the prima facie 

stage in this appeal, it remains a possibility that the jury found he was the actual killer but 

because of “ ‘mistake, compromise or lenity’ ” found the firearm and great bodily injury 

allegations not true. (People v. Avila (2006) 38 Cal.4th 491, 600.) Furthermore, while it 

may have been difficult for jurors to unanimously agree as to the identity of the shooter, 

their verdict reflects they had no difficulty concluding defendant was liable for first 

degree murder under the theory of direct aiding and abetting.

Defendant asserts the instructions on the special circumstances were fatally flawed 

because they referred to defendant as the actual killer and did not provide clear directions 

regarding accomplice liability as an aider and abettor. Although he acknowledges the 

jury was given CALCRIM No. 401, the aiding and abetting an intentional murder 

instruction, he argues that if the jury referred to that instruction, it was possible doing so 

led the jury to consider whether defendant aided and abetted the assault when that 

instruction referred to someone aiding and abetting a crime. According to defendant, it is

also reasonably likely that the jury followed the aiding and abetting instruction on the 

natural and probable consequences doctrine when considering the special circumstances 

instructions. We are not persuaded. 
17

To prove the special circumstances, the jury was informed the People had to 

“prove not only that the defendant did the acts charged, but also that he acted with a 

particular intent or mental state.” (CALCRIM No. 705.) Thus, the jury was informed 

regarding the necessity of a physical act (actus rea) and the requisite accompanying 

mental state (mens rea). 

As for the required mental state, the jurors were instructed that the special 

circumstance finding of active participation in a criminal street gang required the jury to 

find an intentional killing, rather than a killing based on the natural and probable 

consequences doctrine, or due to the defendant’s participation in a felony. (§ 190.2, 

subd. (a)(22); see CALCRIM No. 736; see also People v. Navarro (2021) 12 Cal.5th 285, 

308 [a special circumstance for murder committed for the benefit of a criminal street 

gang requires a finding of intent to kill].)

As for the physical act required, defendant contends that because the jury found he 

was not the actual killer, there is a material conflict in the verdicts where the jury also 

found true the special circumstances that defendant intentionally killed Cousins. He 

argues that given the not true findings on the firearm allegations, he could only be

properly convicted of murder as a direct aider and abettor—the possibility of which he 

claims was thwarted because the jury was not instructed as to aiding and abetting 

principles, such as with CALCRIM No. 702. We find that although CALCRIM No. 702 

was not given, the gang-murder special-circumstances instruction did provide direction 

regarding aiding and abetting principles when it referred the jury to instructions on aiding 

and abetting an intentional killing.

9

 

9 CALCRIM No. 702 would have instructed the jury that if it found defendant was 

not the actual killer, in considering the special circumstances, the jury had to find that the 

defendant acted with the intent to kill. Yet the language of CALCRIM No. 702 says it 

applies to offenses listed in section 190.2, subdivision (a)(2) through (a)(6). As the 

special circumstances regarding a gang murder is under subdivision (a)(22) and lying in 
18

Specifically, in the gang-murder special-circumstances instruction (CALCRIM 

No. 736) the jury was told to “refer to the separate instructions I have given to decide 

whether the defendant aided and abetted the intentional killing of Paul Cousins.” The 

reference to separate aiding and abetting instructions in the gang-murder specialcircumstance instruction could not implicate the instruction on aiding and abetting under 

the natural and probable consequences doctrine (CALCRIM No. 403) because the aiding 

and abetting referred to in CALCRIM No. 403 only applied to aiding and abetting the 

assault. Instead, the instruction pertaining to aiding and abetting an intentional killing, as 

referenced in the gang-murder special-circumstance instruction, could only be

CALCRIM No 401, the instruction on aiding and abetting an intentional killing. 

CALCRIM No. 401 was modified to require the People to prove that a perpetrator 

committed first degree murder, that defendant knew the perpetrator’s intent to commit 

first degree murder, defendant personally had an express intent to kill, and defendant 

intended to, and did in fact, aid and abet the perpetrator in committing first degree 

murder. (CALCRIM No. 401.) Thus, the jury’s true finding on the gang-murder special 

circumstances necessarily means the jury found defendant shared the perpetrator’s intent 

to kill Cousins and actually aided and abetted the perpetrator in killing Cousins and was 

connected to a valid theory of accomplice liability. Contrary to defendant’s claim, the 

fact that the instruction later referred to someone aiding and abetting a crime does not 

invite the jury to consider the assault as the intended crime. Rather, it reiterates the 

elements that were just instructed as to first degree, second degree, or attempted murder. 

A reasonable juror would not have been confused about the relationship between aiding 

wait is under subdivision (a)(15), it appears this instruction was not required. In addition, 

because the instructions on each special circumstance and the modified instruction 

regarding aiding and abetting an intentional killing all required the jury to find that 

defendant intended to kill the victim, instructing on CALCRIM No. 702 would have been 

redundant.
19

and abetting an intentional killing and the natural and probable consequences doctrine; 

the latter was not implicated by the gang-murder special-circumstance instructions. 

Moreover, because the gang-murder special circumstances provided an opportunity to 

find defendant was an aider and abettor, there is no potential conflict between the jury’s 

findings of not true on the firearm allegations and the true findings on the gang-murder 

special circumstance.

We find People v. Pacheco (2022) 76 Cal.App.5th 118, review granted May 18, 

2022, S274102 instructive, albeit in a distinguishing manner.

10 There, the trial court 

instructed on the natural and probable consequences doctrine; the defendant was 

convicted of first degree murder, as an aider and abettor, and a gang-murder special 

circumstance was found true. (Pacheco, at pp. 121-122.) The defendant petitioned for 

relief under section 1172.6. (Pacheco, at p. 121.)

The appellate court held that the true finding on the gang-murder special 

circumstance did not conclusively establish that the defendant was guilty of murder 

without resort to the natural and probable consequences doctrine because the gangmurder special-circumstances instruction did not instruct the jury regarding principles of 

aiding and abetting the murder. (People v. Pacheco, supra, 76 Cal.App.5th at pp. 127-

10 On May 18, 2022, our Supreme Court granted review in People v. Pacheco, supra, 

76 Cal.App.5th 118, (S274102) but has deferred further action pending disposition of 

People v. Curiel (Nov. 4, 2021, G058604 [nonpub. opn.]), review granted January 26, 

2022, S272238 [lead case], which presents the following issue: “Does a jury’s true

finding on a gang-murder special circumstance (Penal Code, § 190.2, subd. (a)(22)) 

preclude a defendant from making a prima facie showing of eligibility for resentencing 

under Penal Code section [1172.6]?” However, we find that this case does not fall under 

the question presented in Curiel, because we do not merely rely on the existence of the 

true finding on the gang-murder special circumstance. Rather, we conclude that the trial 

court’s modification of the gang-murder special-circumstance instruction, to include 

reference to the aiding and abetting an intentional killing instruction (CALCRIM 

No. 401), ensured the jury was properly instructed as to the requisite intent and acts in 

aiding and abetting first degree murder.
20

128, review granted.) Instead, the aiding and abetting instructions informed the jurors 

they could find the defendant guilty of murder if he aided and abetted one of the three 

target crimes (assault with a deadly weapon, assault, or disturbing the peace) and the 

nontarget crime (murder) was a natural and probable consequence of one of the target 

crimes. As a result, the jury could have potentially found the defendant intended to kill 

the victim under the gang-murder special-circumstance enhancement (the mens rea), but 

also found under the natural and probable consequence theory, that the defendant only 

actually aided and abetted a nontarget offense (the actus reus). (Id. at p. 128.) “In other 

words, without weighing the evidence, it is possible Pacheco intended to kill, but he did 

nothing to directly ‘aid, facilitate, promote, encourage, or instigate’ the [non]target crime 

of murder. [Citation.]” (Ibid.) 

Here, unlike in Pacheco, the gang-murder special-circumstance instruction did

refer the jury to the instruction on direct aiding and abetting. Accordingly, unlike in 

Pacheco, there was no opportunity for the jury to find defendant intended to kill Cousins 

and, under the natural and probable consequence theory of aiding and abetting, that he 

only aided and abetted the assault. A jury would not have been confused about applying 

CALCRIM No. 401, the instruction regarding aiding and abetting an intentional killing,

where the gang-murder special-circumstance instruction told it to do so. The jury 

instruction covering aiding and abetting the intentional killing required the jury to find 

that, if defendant was acting as an accomplice, he must have shared the perpetrator’s 

intent to kill and aided and abetted the killing. “We presume the jury followed the 

instructions it was given.” (People v. Chism (2014) 58 Cal.4th 1266, 1299.)

Because the jury instruction on the gang-murder special circumstance, as modified 

to incorporate the instruction on aiding and abetting an intentional killing, required the 

jury to find both that defendant acted with an intent to kill and that he either intentionally 

killed the victim or aided and abetted the victim’s intentional killing, his conviction is 

still viable under sections 188 and 189. (See CALCRIM No. 705.)
21

Thus, we conclude that as a matter of law the jury finding of true on the special 

circumstance of active participation in a criminal street gang establishes defendant’s 

ineligibility for resentencing on his murder conviction. Because the jury finding on the 

gang-murder special circumstance is dispositive, we need not address whether the lyingin-wait special circumstance also renders defendant ineligible for resentencing under 

section 1172.6. (See People v. Brooks (2017) 3 Cal.5th 1, 39 [reviewing court may 

uphold the trial court’s ruling if it is supported by any legally correct theory].)

As a final note, we reject defendant’s argument that the trial court engaged in 

improper factfinding when it cited to this court’s prior decision in which we opined that 

the evidence overwhelmingly pointed to defendant being the actual killer. Defendant 

characterizes this as inappropriate judicial factfinding by the trial court. The reality is the 

trial court merely quoted from our previous opinion and did not rely on it in rendering its 

ruling. Defendant is ineligible for resentencing on his murder conviction under section 

1172.6 as a matter of law and he cannot establish that he would have been afforded an 

evidentiary hearing absent error by the court. (Lewis, supra, 11 Cal.5th at pp. 972-974.)

2. Attempted Premeditated Murder

Defendant argues he made a prima facie showing he is entitled to relief on his 

attempted murder conviction because, notwithstanding the finding the jury made that the 

crime was premeditated, the instructions did not properly instruct the jury to find 

defendant had the requisite mental state. Again relying on the jury’s finding the firearm 

allegations not true, defendant argues that it is reasonably likely the jury used the natural 

and probable consequence instruction to determine his liability as an accomplice. He 

argues this must be so because the jury was not instructed on CALCRIM No. 702 and, in 

light of the natural and probable consequences instruction, the jury could have found he

aided and abetted an assault without any intent to kill. The People argue defendant

forfeited this claim when he failed to amend his petition to include a challenge to his 

conviction for first degree murder. The People note that Senate Bill 775, which clarified 
22

the provisions under section 1172.6 applied to attempted murder, became effective after 

defendant filed his petition but before the prima facie hearing.

We agree that the petition does not appear to include a challenge to defendant’s 

attempted murder conviction. Even assuming defendant’s request, made in passing, that 

the trial court “in the interest of justice consider [whether] [he] is entitled to relief for his 

attempted murder conviction” was sufficient to place the issue before the trial court, 

defendant never sought a ruling, or clarification of the ruling as applied to attempted 

murder. Nevertheless, we exercise our discretion to address the issue because it raises a 

pure question of law, does not require the resolution of disputed factual issues, and the 

parties have addressed the merits of the claim. (People v. Dunley (2016) 247 Cal.App.4th 

1438, 1447.) 

The People argue that, by finding that the attempted murder was premeditated, the 

jury determined defendant acted with the intent to kill and therefore had the requisite 

mental state required for a valid conviction under the amended law. We conclude that 

under the circumstances of this case, the premeditation finding was insufficient to 

establish defendant’s ineligibility for relief under section 1172.6.

The jury was instructed on the elements of attempted murder under CALCRIM 

No. 600. The instruction did not refer the jury to any aiding and abetting instruction. 

Thus, the jury was not informed whether or how to apply either the instruction on aiding 

and abetting an intentional killing under CALCRIM No. 401 or the instruction regarding 

aiding and abetting under the natural and probable consequences doctrine under 

CALCRIM No. 403. The jury could have relied on either or neither instruction. 

The jury’s finding of premeditation does not provide clarity on the jury’s belief as 

to defendant’s mental state, because the instruction did not require the jury find that 

defendant himself acted with premeditation and deliberation. As noted ante, CALCRIM 

No. 601 instructed the jury to determine “whether the People have proved the additional 

allegation that the attempted murder was done willfully, and with deliberation and 
23

premeditation,” but it also informed the jury “[t]he attempted murder was done willfully 

and with deliberation and premeditation if either the defendant or the perpetrator or both

of them acted with that state of mind.” (CALCRIM No. 601, italics added.) When the 

jury found the allegation true, it simply indicated its agreement that “the attempted 

murder was committed willfully, deliberately and with premeditation” but did not specify 

that it was done by defendant. Thus, the special finding of premeditation reveals the 

jury’s determination that a participant committed the attempted murder willfully, 

deliberately, and with premeditation, but that finding cannot be said, as a matter of law, 

to be tethered specifically to defendant.

Accordingly, as to the premeditated attempted murder conviction, we conclude the 

record does not show as a matter of law the jury did not rely on the invalid theory of 

natural and probable consequences in finding defendant guilty. Therefore, the 

premeditation findings are insufficient to establish defendant’s ineligibility for relief such 

that an evidentiary hearing is required.

DISPOSITION

The trial court’s summary denial of defendant’s petition for relief under section 

1172.6 as to defendant’s murder conviction is affirmed but as to the attempted murder 

conviction is reversed and remanded for an evidentiary hearing. 

 /s/

EARL, P. J.

We concur:

 /s/

HULL, J.

 /s/

DUARTE, J.