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Filed 6/14/24 P. v. Sands CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

PHILIP LEO SANDS,

Defendant and Appellant.

 A169369

 (San Francisco City & County 

Super. Ct. Nos. SCN195209, 

CT2131939)

Philip Leo Sands appeals from an order denying his 

petition for resentencing (Pen. Code, § 1172.6).

1 His appointed 

counsel on appeal filed a brief raising no issues, but seeking our 

independent review of the record, pursuant to People v. 

Delgadillo (2022) 14 Cal.5th 216, 230, 232. After reviewing 

Sands’s supplemental brief, we affirm. Sands is ineligible for 

resentencing as a matter of law.

BACKGROUND

A.

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

1437), effective January 1, 2019, changed the law relating to 

accomplice liability for murder to better align punishment with 

individual culpability. (Stats. 2018, ch. 1015, § 1(b), (f).) To that 

1 All undesignated statutory references are to the Penal 

Code. 
2

end, Senate Bill 1437 eliminated the natural and probable 

consequences doctrine as to murder and narrowed the felonymurder exception to the malice requirement. (People v. Mancilla

(2021) 67 Cal.App.5th 854, 862.) 

Specifically, Senate Bill 1437 amended section 189, which 

defines the degrees of murder, to limit murder liability based on 

felony murder or a natural and probable consequences theory to a 

person who: (1) was an actual killer; (2) aided and abetted the 

killer with the intent to kill; or (3) was a major participant in the 

underlying felony and acted with reckless indifference to human 

life, as those terms are used in the statute defining felony-murder 

special circumstances. (§ 189, subd. (e); Stats. 2018, ch. 1015, § 3; 

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

The definition of malice in section 188 was also amended to 

provide that “[m]alice shall not be imputed to a person based 

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

Stats. 2018, ch. 1015, § 2.) 

As a result of these amendments and later Senate Bill No. 

775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2, eff. January 

1, 2022), a person convicted of murder, attempted murder, or 

manslaughter before Senate Bill 1437 may seek retroactive relief 

by filing a petition in the trial court alleging that (1) the 

information or indictment allowed the prosecution to proceed 

under a theory of felony murder, murder under the natural and 

probable consequences doctrine, or any other theory under which 

malice is imputed based solely on the defendant’s participation in 

a crime; and (2) the petitioner could not be convicted of murder or 

attempted murder under current law. (§ 1172.6, subd. (a), 

renumbered from § 1170.95 by Assem. Bill No. 200 (2021-2022 

Reg. Sess.), Stats. 2022, ch. 58, § 10, eff. June 30, 2022; People v. 

Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).) 

If the petition includes a declaration of eligibility, the trial 

court must appoint counsel (if requested), receive briefing from 
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the parties, and then determine whether the petitioner has made 

a “prima facie case for relief.” (§ 1172.6, subds. (b)(3), (c); Lewis, 

supra, 11 Cal.5th at pp. 960, 966.) If so, then the court must 

issue an order to show cause and hold an evidentiary hearing—

where the burden is on the prosecution to prove (beyond a 

reasonable doubt) that the petitioner is ineligible for relief 

because they are guilty of murder under the law as amended by 

Senate Bill 1437. (§ 1172.6, subds. (c)-(d); Strong, supra, 13 

Cal.5th at p. 709; Lewis, at p. 960.) On the other hand, if the 

petition and record of conviction establish conclusively that the 

petitioner is ineligible for relief, the trial court may dismiss the 

petition. (See § 1172.6, subd. (c); Lewis, at pp. 970-972.)

B.

In 2001, Sands stabbed Robin Clarke, inflicting lifethreatening injuries. Robert Ramirez witnessed the stabbing. 

When Sands was charged, Ramirez was ordered to return to court 

to testify. In 2003, after Sands posted bail, he killed Ramirez by 

firing a machine gun at him at least 30 times while Ramirez sat 

in a parked car. 

In 2005, a jury convicted Sands of first degree murder 

(§ 187, subd. (a)) of Ramirez, assault with a machine gun (§ 245, 

subd. (a)(3)) against another victim who was asleep in the same 

parked car, shooting at an occupied vehicle (§ 246), unlawful 

possession and transportation of a machine gun (former § 12220), 

and other charges involving Clarke that are not relevant here. 

The jury also found true a special circumstance allegation that 

Sands intentionally killed a witness to prevent them from 

testifying (§ 190.2, subd. (a)(10)) and an enhancement allegation 

that Sands personally and intentionally discharged a firearm, 

which caused Ramirez’s death (§ 12022.53, subd. (d)). 

The trial court sentenced Sands to a prison term of life 

without the possibility of parole, plus an additional 

indeterminate term of 25 years to life. On direct appeal, this 
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Division affirmed the judgment. (People v. Sands (Oct. 31, 2008, 

A112684) [nonpub. opn.].) 

C.

In 2022, Sands petitioned for resentencing in the superior 

court. He requested the appointment of counsel and included a 

declaration stating that an information had been filed against 

him that allowed the prosecution to proceed under felony murder 

or natural and probable consequences theories, and he could not 

now be convicted of murder because of the 2019 amendments to 

sections 188 and 189. 

After appointing counsel and reviewing the record of 

conviction, the superior court denied Sands’s petition, concluding 

that he is ineligible for resentencing because the jury was not 

instructed on felony murder, the natural and probable 

consequences doctrine, or any other theory under which malice 

could be imputed to Sands based solely on his participation in a 

crime and because the personal and intentional discharge finding 

made clear he was convicted as Ramirez’s actual killer.

DISCUSSION

After Sands’s appointed counsel on appeal filed a brief 

raising no issues, Sands submitted a letter in which he argued 

that the superior court improperly relied on the jury’s firearm 

enhancement (§ 12022.53, subd. (d)) finding; that the absence of 

instructions on felony murder or natural and probable 

consequences murder does not preclude resentencing relief; and 

that the People did not meet their burden to show he is guilty of 

murder under current law. He is wrong.

Here, the jury was not instructed on felony murder, the 

natural and probable consequences doctrine, or any other theory 

under which malice could be imputed to Sands based solely on his 

participation in a crime. There is no evidence Sands was one of 

multiple perpetrators. Accordingly, the record of conviction—
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including the jury’s firearm enhancement finding that Sands 

personally and intentionally discharged a firearm causing 

Ramirez’s death and the jury’s special circumstance finding that 

Ramirez was intentionally killed to prevent him from testifying—

establishes that Sands was convicted based on his own express 

malice (not imputed malice). 

In other words, Sands was the actual killer, the killing was 

intentional, and resentencing under section 1172.6 is therefore 

unavailable. (See Strong, supra, 13 Cal.5th at p. 710; People v. 

Williams (2022) 86 Cal.App.5th 1244, 1258-1259 [special 

circumstance finding on allegation that required intent to kill 

made defendant ineligible for resentencing]; People v. Romero 

(2022) 80 Cal.App.5th 145, 152 [“a petitioner is ineligible for 

resentencing if he or she was the actual killer, acted with the 

intent to kill or malice aforethought, or was a major participant 

. . . who acted with reckless indifference to human life”].) 

Sands is correct that an enhancement under section 

12022.53, subdivision (d), “on its own” is not determinative of a 

resentencing petition because it does not show the defendant 

acted with malice aforethought. (People v. Offley (2020) 48 

Cal.App.5th 588, 597-598 (Offley).) But Offley is plainly 

distinguishable in that it involved a shooting by multiple gang 

members and the jury had been instructed on the natural and 

probable consequences doctrine. (Id. at pp. 592-593.) The court 

explained that, in other cases, “additional information from the 

record will establish that a defendant’s conviction was not based 

on the natural and probable consequences doctrine, and that the 

jury must have convicted the defendant on the basis of his own 

malice aforethought.” (Id. at p. 599.) 

This is such a case. Here, the jury’s implicit findings that 

Sands personally discharged a firearm and intended to kill 

Ramirez distinguish this case from both Offley, supra, 48 
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Cal.App.5th at pages 597-598 and People v. Maldonado (2023) 87 

Cal.App.5th 1257, 1262 & fn. 3.

DISPOSITION

The order denying the resentencing petition is affirmed.

BURNS, J. 

WE CONCUR:

SIMONS, ACTING P. J.

CHOU, J.

P. v. Sands (A169369)