Filed 9/1/21 P. v. Price CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

ANDRE PRICE,

Defendant and Appellant.

 B302565

 (Los Angeles County

 Super. Ct. No. BA415163)

APPEAL from a judgment of the Superior Court of Los Angeles 

County, David V. Herriford, Judge. Affirmed.

Stephen Temko, 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 Amanda V. Lopez, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

A jury convicted appellant Andre Price of second degree 

murder in 2014. We affirmed that conviction in 2016 in our prior, 

unpublished opinion, People v. Price (Aug. 8, 2016, B262143) (unpub. 

opn.). In 2019, appellant filed a petition for resentencing under 

Penal Code section 1170.95.1 After appointment of counsel, briefing, 

and a hearing, the trial court denied the petition, finding that

appellant was ineligible for relief because he was necessarily 

convicted as an aider and abettor to the murder. In this appeal from 

the denial of his resentencing petition, appellant argues that the 

jury might have relied on a felony murder theory and therefore 

might not have found that he acted with the requisite malice to 

support his conviction. We affirm.

BACKGROUND

I. Factual Background

The underlying facts presented at trial are discussed in detail 

in our prior opinion. We summarize them here as relevant to the 

instant appeal. 

Appellant was a friend of Rodney Longmiyer. Longmiyer’s 

cousin, Andrea Fowler, was a friend of the victim, Jeffrey Davis. The 

prosecution’s theory at trial was that appellant, Longmiyer, and 

Fowler planned to rob Davis, that in the course of that robbery, 

appellant assaulted Davis, and that Longmiyer or appellant then 

fatally shot him. 

The shooting occurred on August 2, 2012 at around 1:30 p.m. 

A witness heard two gunshots from the alley behind her apartment 

building; a few seconds later, she saw three cars in the alley 

containing individuals she believed were African-American males. 

She described one of the cars as a four-door, compact car, like a 

1All further statutory references are to the Penal Code unless 

otherwise indicated. 
3

Honda or Nissan, and another as a black or blue sedan, “like a 

Thunderbird.”

Fowler called 911 at 1:32 p.m. from her home phone. She 

reported that she and Davis were in the alley when “some guy 

started to rob us” and then “somebody shot my friend.” Fowler and 

Davis drove to the hospital in a Mazda 6, which was later secured by 

police. Davis was pronounced dead at the hospital from a gunshot 

wound to the chest. The medical examiner testified that the death 

was a homicide and that there was a muzzle imprint at the entry 

wound, meaning that the tip of the gun “was in contact with the skin 

when it was discharged.” The police recovered Davis’s cell phone 

from under the driver’s seat of the Mazda 6. 

Davis sustained other injuries shortly before his death: a red 

contusion above his right eye, contusions to the inside of both his 

upper and lower lips, bruising on the right and left side of the scalp, 

two three-inch abrasions across his left upper chest, a dark abrasion 

on the back of his right shoulder near the top, two separate bruises 

on the top of his right hand, an abrasion on his right palm below the 

thumb, and several abrasions on his left leg and knee. Based on his 

injuries, the medical examiner opined that Davis was involved in a 

physical struggle. The injuries to Davis’s hand indicated that “there 

were either punches thrown or attempts to ward off injury by trying 

to block a blow or an attack.” DNA swabs taken from Davis’s right 

knuckle contained appellant’s DNA. A defense DNA expert testified 

about different types of DNA transfer, and acknowledged during 

cross-examination that a punch could transfer one person’s DNA to 

the other’s knuckles.

Longmiyer’s girlfriend testified that in August of 2012, 

Longmiyer was driving their black 2004 Pontiac Grand Prix; the car 

was registered under appellant’s name. From her cell phone 
4

contacts, she identified appellant’s phone number and Fowler’s cell 

phone number. The prosecution presented extensive phone record 

evidence, which showed multiple calls and text messages among 

appellant’s and Longmiyer’s cell phones on the day of the shooting 

from around 8:00 a.m. until around the time of the shooting. At 1:18 

p.m., Davis’s phone was used to call Longmiyer’s phone (the only call 

made between those phones). Video surveillance from a liquor store 

near the scene of the shooting showed Davis getting out of a car and 

going into the store at 1:17 p.m., and Fowler following him a few 

minutes later. The video showed Fowler and Davis leaving the store 

parking lot in a car at 1:25 p.m., heading toward the alley.

The phone records also showed the cell towers used for each 

call. Between 1:17 and 1:32 p.m., Longmiyer’s calls to and from 

Fowler’s and Davis’s phones all used a cell tower less than half a 

mile from the shooting. After that time, Longmiyer’s phone moved 

away from the site of the shooting.

II. Procedural History

A. Trial and Direct Appeal

In 2013, appellant was charged with the murder of Jeffrey 

Davis (§ 187, subd. (a), count 1) and possession of a firearm by a 

felon (§ 29800, subd. (a)(1), count 2). The information further 

alleged that appellant personally and intentionally discharged a 

firearm causing great bodily injury and death (§ 12022.53, subds. 

(b)-(d)), and also included gang (§ 186.22, subd. (b)(1)(A))2 and prior 

conviction allegations (§ 667, subds. (a)(1), (b)-(j)). 

The trial court instructed the jury on first degree felony 

murder (CALCRIM Nos. 540A, 540B), in accordance with the 

2 The court later struck the gang allegations upon motion by 

the prosecution. 
5

prosecution’s primary theory that Davis was shot by appellant or 

Longmiyer during the commission of an attempted robbery. The 

court also instructed the jury regarding first and second degree 

murder with malice aforethought (CALCRIM Nos. 520, 521) and 

aiding and abetting (CALCRIM Nos. 400, 401). 

On May 8, 2014, the jury found appellant not guilty of first 

degree murder on count 1, but guilty of the lesser-included offense of 

second degree murder. The jury found not true the firearm 

enhancement on count 1, and acquitted appellant on count 2 of 

possession of a firearm by a felon. Following a bifurcated court trial, 

the court found true the allegations regarding appellant’s prior 

felony conviction, and sentenced appellant to 35 years to life. 

Appellant appealed his conviction. In our prior opinion, we 

found that “[i]n acquitting defendant of first degree murder, the jury 

implicitly failed to find that defendant engaged in a robbery or 

attempted robbery beyond a reasonable doubt. The jury also found 

the gun use enhancement not true thus failing to find beyond a 

reasonable doubt that defendant personally used a gun against 

Davis.” We concluded that substantial evidence supported 

appellant’s conviction for second degree murder under an aiding and 

abetting theory. First, we found that the evidence that Davis was 

shot in the chest at point blank range was sufficient to establish 

malice of the shooter; moreover, given the evidence placing 

Longmiyer at or near the scene, we found that “a jury could 

reasonably infer that Longmiyer shot Davis and thereby committed 

second degree murder.” Second, we concluded there was 

“substantial evidence at trial to support the inference that 

[appellant] knowingly and intentionally aided and abetted 

Longmiyer in the murder.”
6

B. Petition for Resentencing

On January 2, 2019, appellant filed a petition for resentencing 

under section 1170.95. On the form petition, he checked the boxes 

asserting that he was convicted of second degree murder under the 

natural and probable consequences doctrine or the felony murder 

doctrine, could not now be convicted of murder because of changes to 

section 188, and that there had “been a prior determination by a 

court or jury that I was not a major participant and/or did not act 

with reckless indifference to human life,” so that he was entitled to 

be resentenced pursuant to section 1170.95, subdivision (d)(2). 

Appellant also checked the box requesting the appointment of 

counsel. 

The prosecution filed a response. It argued that appellant 

was ineligible for resentencing because he was convicted of second 

degree murder “as an aider and abettor to the actual shooter,” and 

not based on felony murder or the natural and probable 

consequences doctrine. It further argued that the jury “was not even 

instructed on second degree felony murder or natural and probable 

consequences.” 

The court appointed counsel for appellant. Appellant filed a 

reply addressing the prosecution’s arguments regarding the 

constitutionality of section 1170.95. Shortly afterward, appellant 

filed a petition with the court seeking to represent himself for the 

resentencing proceedings. 

At a hearing on November 8, 2019, the court granted his 

request. With appellant proceeding in propria persona, the court 

held a hearing on the section 1170.95 petition. Appellant argued 

that the prosecutor had proceeded at trial under the theory that he 

was the shooter, or was guilty under a felony murder theory for 

participating in the attempted robbery of the victim, but that the 
7

jury had rejected the first theory when it found him not guilty of 

using the gun. 

The court stated it had reviewed the jury instructions given, 

including instructions on aiding and abetting, and concluded that 

since the jury rejected the allegation regarding personal use of the 

firearm, “obviously, the only theory that would have supported your 

conviction would have been as an aider and abettor.” Citing our 

prior opinion, the court noted that the prosecution advanced a 

theory of first degree felony murder, and that the trial court also 

instructed the jury “regarding first and second-degree murder with 

malice aforethought and aiding and abetting.” The court therefore 

told appellant that “the only theory that was sustained at your trial 

was aiding and abetting . . . [The prosecution] did argue that below. 

The instructions were given. And you were convicted of that. . . . 

Had you been convicted of felony murder, we might have been in a 

different position, but you weren’t.” The court concluded that the 

“only explanation” for appellant’s conviction was “as an aider and 

abettor. There’s no other legal basis for that. . . . Because of that 

you’re not entitled to relief under this statute.” Accordingly, the 

court denied the petition, finding that appellant was ineligible for 

relief because he was convicted as an aider and abettor and not 

pursuant to the felony murder rule or natural and probable 

consequences doctrine. 

Appellant timely appealed. 

DISCUSSION

I. Governing Law

In 2018, the Legislature enacted Senate Bill No. 1437 (SB 

1437), the primary purpose of which is to align a person’s culpability 

for murder with his or her own actions and subjective mens rea. 

(See Stats. 2018, ch. 1015, § 1, subd. (g).) To effectuate that 
8

purpose, SB 1437 amended sections 188 and 189. As amended, 

section 188, subdivision (a)(3) now provides that “in order to be 

convicted of murder, a principal in a crime shall act with malice 

aforethought. Malice shall not be imputed to a person based solely 

on his or her participation in a crime.” (§ 188, subd. (a)(3).) Section 

189 now provides that a participant in qualifying felonies during 

which a death occurs generally will not be liable for murder unless 

(1) he or she was “the actual killer,” (2) he or she, “with the intent to 

kill, aided, abetted, counseled, commanded, induced, solicited, 

requested, or assisted the actual killer in the commission of murder 

in the first degree,” or (3) he or she “was a major participant in the 

underlying felony [who] acted with reckless indifference to human 

life.” (§ 189, subds. (e)(1)-(3).) The effect of these changes was to 

restrict the application of the felony murder rule and the natural 

and probable consequences doctrine as applied to murder. (People v. 

Lamoureux (2019) 42 Cal.App.5th 241, 248.) “Felony murder and 

aiding and abetting a murder remain crimes, but to be convicted of 

murder it isn’t enough to participate in a felony that results in a 

death. Now, a person so accused must have killed the victim, aided 

the person who did kill the victim with the intent to kill them, or 

acted as a major participant in the felony with reckless indifference 

to human life.” (People v. Johns (2020) 50 Cal.App.5th 46, 54.) 

SB 1437 also added section 1170.95 to the Penal Code. 

Section 1170.95 permits a person convicted of murder on a charging 

document that allowed the prosecution to argue felony murder or 

the natural and probable consequences doctrine to petition the 

sentencing court to vacate the conviction and resentence on any 

remaining counts if the person could not be convicted of murder 

under sections 188 and 189 as amended by SB 1437. (§ 1170.95, 

subd. (a).)
9

A petition for relief under section 1170.95 must include: “(A) 

A declaration by the petitioner that he or she is eligible for relief 

under this section, based on all the requirements of subdivision (a). 

[¶] (B) The superior court case number and year of the petitioner’s 

conviction. [¶] (C) Whether the petitioner requests the appointment 

of counsel.” (§ 1170.95, subd. (b)(1).) If any of this information is 

missing “and cannot be readily ascertained by the court,” the court 

may deny the petition without prejudice. (§ 1170.95, subd. (b)(2).)

If the petition contains the required information, then the 

court proceeds to subdivision (c) to assess whether the petitioner has 

made “a prima facie showing” for relief. (§ 1170.95, subd. (c); see 

also People v. Lewis (July 26, 2021, S260598) __Cal.5th __ [2021 WL 

3137434] at *2–3 (Lewis)). In Lewis, our Supreme Court recently

determined that subdivision (c) requires a “single” process to assess

the prima facie showing, including appointing counsel if requested

by petitioner, and briefing by the parties. (Id. at *4; see also § 

1170.95, subd. (c).)3

The court may look at the record of conviction, including a 

prior appellate opinion, to determine whether a petitioner has made 

a prima facie case for relief under section 1170.95. (Lewis, supra, at 

*10; see also People v. Edwards (2020) 48 Cal.App.5th 666, 674–675, 

abrogated on other grounds by Lewis, supra, at *5-6 [court can 

review “readily available record of conviction” including “charging 

information and jury instructions”]; People v. Cruz (2017) 15 

Cal.App.5th 1105, 1110.) However, “the prima facie inquiry under 

3 Lewis, decided after briefing was completed in this appeal, 

rejected the “two-step” prima facie process previously embraced by 

many courts. (See Lewis, supra, at *4.) This holding is not at issue 

here, as the trial court appointed counsel for appellant and allowed 

briefing and a hearing prior to finding appellant ineligible for relief.
10

subdivision (c) is limited. . . . ‘“[T]he court takes petitioner’s factual 

allegations as true and makes a preliminary assessment regarding 

whether the petitioner would be entitled to relief if his or her factual 

allegations were proved. If so, the court must issue an order to show 

cause.’” [Citations.] ‘[A] court should not reject the petitioner's 

factual allegations on credibility grounds without first conducting an 

evidentiary hearing.’ [Citation.] ‘However, if the record, including 

the court’s own documents, “contain[s] facts refuting the allegations 

made in the petition,” then “the court is justified in making a 

credibility determination adverse to the petitioner.”’” (Lewis, supra, 

at *10, quoting People v. Drayton (2020) 47 Cal.App.5th 965, 978, 

abrogated on other grounds by Lewis, supra, at *5-6.) “In reviewing 

any part of the record of conviction at this preliminary juncture, a 

trial court should not engage in ‘factfinding involving the weighing 

of evidence or the exercise of discretion.’” (Lewis, supra, at *11.)

“If the trial court determines that a prima facie showing for 

relief has been made, the trial court issues an order to show cause, 

and then must hold a hearing ‘to determine whether to vacate the 

murder conviction and to recall the sentence and resentence the 

petitioner on any remaining counts in the same manner as if the 

petitioner had not . . . previously been sentenced, provided that the 

new sentence, if any, is not greater than the initial sentence.’ (§ 

1170.95, subd. (d)(1).) ‘The prosecutor and the petitioner may rely 

on the record of conviction or offer new or additional evidence to 

meet their respective burdens.’ (§ 1170.95, subd. (d)(3).) At the 

hearing stage, ‘the burden of proof shall be on the prosecution to 

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

resentencing.’ (§ 1170.95, subd. (d)(3).)” (Lewis, supra, at *3.)

We review de novo the predominantly legal question of 

whether a petitioner has made a prima facie showing. (See Drayton, 
11

supra, 47 Cal.App.5th at p. 981; see also Smiley v. Citibank, N.A.

(1995) 11 Cal.4th 138, 146 [“Independent review is called for when 

the underlying determination involves a purely legal question or a 

predominantly legal mixed question.”].)4

II. Analysis

Appellant contends that the trial court erred in denying his 

petition because some jurors might have found him guilty under the 

felony murder rule. We disagree. The court correctly found 

appellant ineligible for relief under section 1170.95 as a matter of 

law because he was convicted of second degree murder as an aider 

and abettor, not under a felony murder theory.

To be eligible for relief, appellant must make a prima facie 

showing that he “could not be convicted of first or second degree 

murder because of changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1170.95, subd. (a)(3).) A direct aider and 

abettor can be convicted of murder notwithstanding the 

amendments to sections 188 and 189, because such persons 

necessarily “know and share the murderous intent of the actual 

perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1118; see 

4 The parties disagree as to the stage at which the court 

denied appellant’s petition. Respondent argues that the court did so 

at the prima facie stage under section 1170.95, subdivision (c), while 

appellant contends that the court proceeded to the hearing and 

engaged in factfinding under subdivision (d). There is no indication 

in the record that the court issued an order to show cause or held a 

hearing under subdivision (d) at which the parties were able to 

present new or additional evidence. The court permitted the parties 

to present argument and relied on the record of conviction, 

consistent with its duties at the prima facie stage under subdivision 

(c). In any event, appellant does not raise a procedural challenge on 

appeal and argues that the result would be the same at either stage. 
12

People v. Gentile (2020) 10 Cal.5th 830, 848 [SB 1437 “does not 

eliminate direct aiding and abetting liability for murder because a 

direct aider and abettor to murder must possess malice 

aforethought.”].) “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. Offley (2020) 48 

Cal.App.5th 588, 595-596.) Accordingly, appellant was required to 

make a prima facie showing that he was not convicted as a direct 

aider and abettor and thereby fell within the provisions of the 

statute. (§ 1170.95, subds. (a)(3) & (c).) He failed to do so.

In our prior opinion, we found that the jury necessarily 

convicted appellant of second degree murder under an aiding and 

abetting theory, and that substantial evidence supported that 

finding. The court properly relied on that finding in concluding that 

appellant was ineligible for resentencing under section 1170.95. 

(See Lewis, supra, at *5-6 [holding that “a trial court can rely on the 

record of conviction,” and “[a]ppellate opinions . . . are generally 

considered to be part of the record of conviction”].) Because he was 

convicted under a direct theory requiring a finding of malice, 

appellant was not entitled to relief as a matter of law.

Appellant does not challenge the court’s reliance on our prior 

opinion. He also acknowledges that “there was a general 

understanding among the parties that the prosecution was using 

felony murder only in conjunction with first degree murder.” 

However, he argues that the court erred by failing to consider the 

possibility that some of the jurors disregarded the jury instructions 

given and “may have based their guilty verdict on an illegal theory 

(i.e., second degree felony murder).” He cites no authority for this 

proposition. To the contrary, we presume the jury followed the 
13

instructions it was given. (See People v. Prince (2007) 40 Cal.4th 

1179, 1295; People v. Holt (1997) 15 Cal.4th 619, 662.) 

Here, the jury was instructed it could find appellant guilty of 

first degree murder based on either a theory of malice murder—as 

the perpetrator or an aider and abettor—or under a felony murder 

theory based on an underlying robbery or attempted robbery. If it 

found appellant not guilty of first degree murder, the jury was 

instructed that it could find appellant guilty of the lesser crime of 

second degree malice murder, again as the perpetrator or an aider 

and abettor. The prosecution’s theory at trial relied primarily on 

first degree felony murder, which the jury rejected. Appellant has 

failed to supply any evidence to suggest that the jury did not follow

its instructions in finding that appellant possessed the requisite 

malice to support a conviction for second degree murder. His 

suggestion that the jury “could have been confused” is mere 

speculation; he does not point to any evidence or argument during 

the trial to support it. Moreover, the jury instructions regarding 

felony murder were expressly linked to liability for first degree 

murder. (See CALCRIM No. 540A [instructing on the elements 

required to “prove that the defendant is guilty of first degree murder 

under [a felony murder] theory”]; ibid. [instructing jury to apply 

robbery or attempted robbery instructions “when you decide whether 

the People have proved first degree murder under a theory of felony 

murder”].)

Appellant also notes that the jurors were instructed that they 

did not have to agree on the same theory of liability and suggests 

this could have resulted in some jurors relying on felony murder for 

a second degree murder conviction. The jury was instructed that 

appellant was being prosecuted for first degree murder under “two 

theories: (1) malice aforethought, and (2) felony murder,” and that it 
14

could not convict appellant “unless all of you agree that the People 

have proved that the defendant committed murder under at least 

one of these theories. You do not all need to agree on the same 

theory.” (CALCRIM No. 548.) But here, the jury rejected both

theories of guilt for first degree murder when it found appellant not 

guilty of that charge. The jury was not instructed that it could apply 

a felony murder theory to any charge other than first degree murder 

and there is no evidence suggesting that any juror impermissibly 

relied on felony murder to convict appellant of second degree 

murder.

Appellant is not assisted by his reliance on two notes 

submitted by the jury during deliberation. On May 7, 2014, the jury 

submitted the following question to the trial court: “Would another 

felony, such as felony assault, be a basis for felony murder[?] What 

is the basis for felony assault?” The trial court responded: “Assault 

cannot form the basis of felony murder.” The following day, the jury 

submitted a second note, reporting that it was “[h]ung on murder 

count 1 first degree,” and asking: “Can we convict [appellant] for 

aiding & abetting 2nd degree murder[?]” In response, the trial court 

referred the jury to the instructions already given. Appellant 

speculates that these questions show that the jury was “having a 

difficult time coming to an agreement on the theory of liability,” and 

ultimately arrived at a “compromised verdict” that could have 

included some jurors relying on felony murder instead of finding 

malice. We are not persuaded. If anything, these questions support 

the conclusion that the jury ultimately found appellant guilty of 

second degree murder as an aider and abettor, particularly after the 

trial court informed the jury it could not use assault as an 

alternative basis for felony murder and that it could convict 

appellant as an aider and abettor for second degree murder. 
15

Thus, the record of appellant’s conviction established he was 

ineligible for relief under section 1170.95 as a matter of law based 

on the jury’s findings rejecting first degree felony murder and 

convicting appellant of second degree murder as an aider and 

abettor. The court accordingly did not err in denying appellant’s 

petition.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.