Filed 7/5/24 P. v. Jones CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH WAYNE JONES

Defendant and Appellant.

 B328751

 (Los Angeles County

 Super. Ct. No. BA292350)

APPEAL from an order of the Superior Court of Los 

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

G. Martin Velez, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Nicholas J. Webster and Amanda V. 

Lopez, Deputies Attorney General, for Plaintiff and Respondent.
2

In 2011, a jury convicted defendant and appellant Joseph 

Wayne Jones of one count of first degree murder (Pen. Code, 

§ 187, subd. (a)), four counts of attempted willful, premeditated 

murder (id., §§ 664, 187, subd. (a)), and one count of shooting at 

an inhabited dwelling (id., § 246). In 2019, defendant filed a 

petition to vacate his murder conviction and resentence on any 

remaining counts under former Penal Code section 1170.95 (now 

§ 1172.6).1 The trial court summarily denied the petition.

On appeal, defendant contends the trial court erred by 

denying his petition without issuing an order to show cause. The 

People contend, and we agree, that defendant is ineligible for 

relief as a matter of law. We affirm.

BACKGROUND

A. Factual Background2

1. The Shootings on 84th Street and South Halldale 

Avenue

Lester Turner and Andre Turner lived in a home on 84th 

Street in the City of Los Angeles with their grandfather, John 

Turner.3 Lester and Andre were members of the Eight Trey 

Gangster Crips gang. 

1 Subsequent references to statutes are to the Penal Code. 

Effective June 30, 2022, former section 1170.95 was renumbered 

1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.)

2 The following summary is taken from our prior opinion resolving 

defendant’s direct appeal to provide context.

3 For ease of reading, we use the first names of the Turner family 

members and other individuals sharing the same last name. We 

intend no disrespect.
3

In the evening of October 20, 2005, John was sitting in a 

room inside the home facing the street. Lester, Andre, and a 

friend, Kevin Ingram, were in the driveway working on Lester’s 

car. 

Three African American men in their early 20’s and 

wearing hoodies drove a grey pickup truck down the street, got 

out of the truck, and walked toward the Turner residence. 

Unable to see the men’s faces, Andre said, “What’s up?,” and the 

men replied, “What’s up?,” before shooting at the house. One of 

the men used a rifle and the others used handguns. Numerous 

shots were fired, but no one was hit. After the shooting, the three 

men ran back to their truck and drove away. 

Around five minutes later, another shooting occurred over a 

mile away at the home of Robin Sanders on Halldale Avenue. 

Robin was inside her home with her nephew, Thomas Maleik 

Sanders. Thomas’s friend, Paul Fry, had driven Thomas to 

Robin’s house and was waiting in his car in the driveway. Fry 

was a member of the Bounty Hunter Bloods gang. Thomas was 

not a gang member. 

After finishing his laundry, Thomas got into Fry’s car with 

the windows rolled down. When Fry started the car, an African 

American man ran up to Fry’s window and pointed a handgun at 

him. Fry heard two or three clicks, but the gun did not fire. The 

man ran away toward the street. 

As Fry tried to back his car out of the driveway, he looked 

through the passenger-side window and saw a different man 

several houses down, wearing a hoodie and holding an AK-47 

rifle. The man fired the rifle several times. Fry tried to drive 

away but was shot three times. His car spun out of control and 

ended in a nearby yard. A grey pickup truck stopped near Fry’s 
4

car. Several occupants looked at Fry and Thomas and drove 

away. Thomas was shot numerous times and died as a result. 

2. Police Investigation and Defendant’s Interviews

On October 23, 2005, two detectives went to the Turner 

residence to interview Andre. As they passed through the living 

room, one detective saw a young Black man motion to Andre not 

to say anything to the police. Andre identified Damien Watts 

(also known as “Chopper”) in a six-pack photographic lineup as a 

Rollin’ 60’s Neighborhood gang member he knew from jail. Andre 

did not identify the shooter.4 In a follow-up interview later that 

evening, Andre said he knew “Chopper from 60’s” shot at his 

house, but stated he would not testify because he was not a 

snitch. Andre denied saying this at trial. 

Defendant was also interviewed on October 23, 2005. He 

identified Watts and Jason Weldon from six-pack photographic 

lineups and stated Watts and Weldon had told him Watts fired 

an AK-47 at Eight Trey Gangster Crips and at the Turner 

residence. Defendant stated that Weldon had borrowed his 

pickup truck and drove or rode in it as a passenger on October 20, 

2005. Defendant identified Anthony Padilla as the driver or 

additional passenger in the truck. 

In a subsequent interview, defendant admitted he was a

passenger in the truck during both shootings. He reported that 

Weldon came to pick him up at his house because “one of the 

homies had got shot.” During their conversation, another man, 

Derek Brown, called defendant to report someone had threatened 

4 Fred Johnson lived across the street from the Turners and 

witnessed the shooting. During a live lineup in December 2005 and 

later at trial, Johnson identified Watts as the man who shot the rifle. 
5

his father. Defendant and Weldon picked up Brown and Watts 

and decided to get an AK-47 rifle. 

Brown, Weldon, and Watts told another gang member they 

were going to “put in work” by robbing someone and “shoot[ing] 

up something.” Defendant drove them to pick up Padilla, who 

then drove the group to the Turner residence where Watts, 

Weldon, and Brown shot at the house. Padilla had difficulty 

driving the truck. Defendant took the wheel and drove. After the 

Turner shooting, defendant thought they would go home but 

“they don’t want to listen.” 

When the men drove by the Sanders residence, defendant 

and Brown told the others that Sanders and Fry were not gang 

bangers. Watts insisted on stopping and getting out of the truck. 

Defendant stated, “I told them, . . . that dude [Sanders] is 

innocent. I knew them dudes were no gang bangers.” 

3. Gang Evidence

Detective David Ross testified about the use of gang 

monikers, how to join a gang, and the importance of territory to a 

gang. He also explained the concept of putting in work, the best 

example of which was shooting at rival gang members. 

Detective Ross knew that defendant (“Capo”) and Watts 

(“Chopper”) were members of the Rollin’ 60’s Neighborhood Crips 

gang. One of the gang’s rivals was the Eight Trey Gangster 

Crips. Both shootings in this case occurred in Eight Trey 

Gangster Crips territory. Based on a hypothetical mirroring the 

facts of both shootings, Detective Ross opined both were 

committed for the benefit of, at the direction of, or in association 

with the Rollin’ 60’s Neighborhood Crips gang to promote or 

further its criminal conduct. 
6

B. Procedural Background

Defendant was tried alone in August 2011. A jury 

convicted him of one count of first degree murder (§ 187, 

subd. (a)), four counts of willful, deliberate, and premeditated 

attempted murder (§§ 664, 187, subd. (a)), and one count of 

shooting at an inhabited dwelling (§ 246). The jury found true 

the allegations each charged offense was committed for the 

benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). On 

the murder and attempted murder counts, the jury found true the 

allegations a principal personally and intentionally discharged a 

firearm (§ 12022.53, subd. (d)). In addition, the jury found 

defendant intentionally murdered Thomas while being an active 

participant in a criminal street gang (§ 190.2, subd. (a)(22)). The 

trial court sentenced defendant to an overall term of life 

imprisonment without the possibility of parole plus four life 

terms and a consecutive term of 110 years to life. 

A panel of this court affirmed defendant’s convictions in 

People v. Jones (Mar. 29, 2013, B236850) [nonpub. opn.]. This 

court rejected defendant’s challenge to the sufficiency of evidence 

supporting the gang-murder special circumstance finding 

(§ 190.2, subd. (a)(22)). (Id. at p. 12.) “Viewing, as we must, the 

evidence in the light most favorable to the judgment,” this court 

found “sufficient evidence to support the jury’s special 

circumstance findings.” (Ibid.) 

In February 2022, defendant filed a resentencing petition 

under former section 1170.95, seeking resentencing on his 

murder conviction. The trial court appointed counsel and 

received additional briefing by the parties. Following a prima 

facie hearing, the court summarily denied the petition, relying on 

the court file (including the jury instructions and verdicts) and 
7

finding defendant ineligible for relief as a matter of law. 

Defendant timely appealed. 

DISCUSSION

A. Governing Law: Section 1172.6

Through Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 1) 

(S.B. 1437), the Legislature clarified the felony murder rule and 

eliminated the natural and probable consequences doctrine to 

ensure any murder conviction and attached sentence is 

commensurate with individual culpability. (People v. Gentile

(2020) 10 Cal.5th 830, 842–843; People v. Lewis (2021) 11 Cal.5th 

952, 957, 971 (Lewis); accord, § 189, subd. (e).) The Legislature 

also added former section 1170.95 (now section 1172.6), pursuant 

to which individuals convicted of felony murder or murder under 

the natural and probable consequences doctrine may petition for 

vacatur of their convictions and resentencing. (§ 1172.6, 

subd. (a).)

Within 60 days after service of a facially compliant petition, 

the prosecutor must file and serve a response, to which the 

petitioner may file and serve a reply. (§ 1172.6, subd. (c).) 

Following this briefing period, the court “shall hold a hearing to 

determine whether the petitioner has made a prima facie case for 

relief.” (Ibid.) If the petition and record in the case establish 

conclusively the petitioner’s ineligibility for relief as a matter of 

law, the trial court may summarily deny the petition. (See People 

v. Strong (2022) 13 Cal.5th 698, 708; Lewis, supra, 11 Cal.5th at 

pp. 970–972; § 1172.6, subd. (c).) 

Persons liable for murder under current law include actual 

killers, aiders and abettors who act with intent to kill, or major 
8

participants in the underlying felony who act with reckless 

indifference to human life. (§ 189, subd. (e)(3).)

We review de novo whether the trial court properly denied 

a section 1172.6 petition without issuing an order to show cause. 

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

B. Defendant Was Ineligible for Relief as a Matter of 

Law

Defendant contends the trial court erred by summarily 

denying his petition. His contention is premised on the jury 

instructions at trial and whether they permitted his conviction

for murder on an imputed malice theory of liability. We conclude 

they did not. 

The record of conviction demonstrates defendant was 

convicted of murder as either a direct perpetrator or an aider and 

abettor to that crime. The jury instructions and verdict prove 

this conviction as a matter of law.

The jury was instructed on the elements of murder under 

CALCRIM No. 520, which required the prosecution to prove 

beyond a reasonable doubt that “1. The defendant committed an 

act that caused the death of another person; [¶] AND [¶] 2. When 

the defendant acted, he had a state of mind called malice 

aforethought.” CALCRIM No. 520 defined both “kinds of malice 

aforethought, express malice and implied malice,” while 

CALCRIM No. 521 further instructed the jury to “decide whether 

the murder [is] of the first or second degree.” The instructions

clarified defendant was “prosecuted for first degree murder under 

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

The defendant is guilty of first degree murder if the People have 

proved that he acted willfully, deliberately, and with 
9

premeditation.” The instructions defined “willfully” to mean 

defendant “intended to kill” and placed on the People “the burden 

of proving beyond a reasonable doubt that the killing was first 

degree murder rather than a lesser crime.” 

The jury also received instruction on the special 

circumstance allegation (§ 190.2, subd. (a)(22); CALCRIM 

Nos. 700, 702) that defendant intentionally murdered Thomas 

while being an active participant in a criminal street gang. The 

instruction informed the jury that if it found defendant “guilty of 

first degree murder,” it had to decide whether the People met 

their burden of proving the special circumstance allegation true 

beyond a reasonable doubt. To prove this allegation if defendant 

was “not the actual killer” but was “guilty of first degree murder 

as an aider and abettor,” the People had to prove “that the 

defendant acted with the intent to kill.” 

The jury also received instruction on the general principles 

of aiding and abetting (CALCRIM No. 400), which informed the 

jury a person may be guilty of a crime by either personally 

committing the crime (defined as “a perpetrator”) or aiding and 

abetting the perpetrator of the crime. As to the theory of aiding 

and abetting, specifically, the jury was instructed with CALCRIM 

No. 401, which provided in relevant part: 

“To prove that [the] defendant is guilty of a 

crime based on aiding and abetting that crime, the 

People must prove that: 

“1. The perpetrator committed the crime; 

“2. The defendant knew that the perpetrator 

intended to commit the crime; 

“3. Before or during the commission of the 

crime, the defendant intended to aid and abet the 

perpetrator in committing the crime; [¶] AND [¶] 
10

“4. The defendant’s words or conduct did in fact 

aid and abet the perpetrator’s commission of the 

crime. 

“Someone 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.” 

By convicting defendant of first degree murder, the jury 

necessarily found him guilty as the perpetrator or as an aider and 

abettor to first degree murder. To find defendant guilty under 

the latter theory of liability, the instructions required the jury to 

find defendant knew the perpetrator’s unlawful purpose and 

specifically intended to “aid, facilitate, promote, encourage, or 

instigate the perpetrator’s commission of that crime.” In 

applying these instructions to the count of murder, the jury could 

only have understood “the crime” as used in the instruction to 

mean murder. By finding defendant guilty of first degree 

murder, the jury must also have found defendant intended to kill

and, by words or conduct, did in fact aid and abet the commission 

of murder. 

These necessary findings meet the standard of direct aiding 

and abetting murder under current law. (See People v. Pacheco 

(2022) 76 Cal.App.5th 118, 124 (Pacheco) [“Under a direct aider 

and abettor liability theory, the prosecution must prove the 

person who is not the actual killer ‘engaged in the requisite acts 

[actus reus] and had the requisite intent [mens rea]’ to aid and 

abet the target crime of murder”].)5 

5 Our Supreme Court dismissed review in Pacheco following its 

decision in People v. Curiel (2023) 15 Cal.5th 433. In light of our 
11

As defendant has acknowledged, the jury never received an

instruction on felony murder, the natural and probable 

consequences doctrine, or any target crime on which that doctrine 

could be based. (See, e.g., CALCRIM Nos. 401–402, 540A–540C, 

548.) Having received none of these instructions and finding 

defendant guilty of first degree murder as a perpetrator or direct 

aider and abettor, the jury necessarily found defendant was the 

actual killer or acted with malice aforethought and engaged in 

conduct that did in fact aid and abet the perpetrator’s 

commission of murder. (Accord, People v. Cortes (2022) 75 

Cal.App.5th 198, 205–206 (Cortes); People v. Harden (2022) 81 

Cal.App.5th 45, 52–53; People v. Estrada (2022) 77 Cal.App.5th 

941, 946.) 

Defendant relies on People v. Langi (2022) 73 Cal.App.5th 

972 (Langi), for the proposition the jury could have imputed 

malice on him based entirely on his participation in the shooting 

culminating in Thomas’s death. Defendant’s reliance is 

misplaced. In Langi, a jury convicted the defendant of second 

degree murder in connection with the beating death of a robbery 

victim. (Id. at p. 976.) The robbery victim fell and struck his 

head after someone in a group that included the defendant 

punched the victim “directly in the face.” (Ibid., original italics.) 

“As the case was tried, the jury could have found [Langi] 

guilty as an aider and abettor even if it found that someone else 

threw the fatal punch. The jury was not required to find, and did 

not necessarily find, that it was [Langi] who threw that punch. 

Read with the caution dictated by Lewis, the prior opinion [and 

conclusion above, we need not (and do not) consider defendant’s 

alternative argument under Pacheco concerning the jury’s true finding 

under section 190.2, subdivision (a)(22). 
12

jury instructions do] not conclusively establish that [Langi] was 

convicted as the actual killer.” (Langi, supra, 73 Cal.App.5th at 

p. 980.) 

Absent any finding by the jury that Langi was the actual 

killer, the Langi court reviewed the jury instructions comprising 

part of Langi’s record of conviction. (Langi, supra, 73 

Cal.App.5th at pp. 980–981.) In its review, the court found 

Langi’s conviction was based on two instructions “of central 

significance” to its analysis: (1) a second degree murder 

instruction (CALJIC No. 8.31), and (2) general principles of 

aiding and abetting (CALJIC No. 3.01). (Id. at p. 981.) As

Langi’s conviction was for second degree murder, the court found

CALJIC No. 8.31 permitted a conviction insofar the perpetrator

deliberately performed a fatal act (a punch) “with knowledge of

the danger to, and with conscious disregard for, human life,” and

did not require finding the perpetrator’s purpose was to kill the

victim. (Id. at pp. 981–982.) For the jury to convict the

defendant as an aider and abettor of second degree murder, it

could have found Langi “need only have intended to encourage

the perpetrator’s intentional act—in this case, punching [the

victim]—whether or not [Langi] intended to aid or encourage

[the] killing, and whether or not he personally knew of and

disregarded the risk of such a killing.” (Id. at p. 983, fn. omitted.)

Unlike the defendant in Langi, defendant in this case was 

convicted of first degree murder. The instructions on this theory 

of liability required the finding of express malice as either the 

perpetrator (the actual killer) or as an aider and abettor. As 

such, the instructional ambiguities in Langi permitting the jury 

to impute implied malice do not exist in this case. (Accord, 

Cortes, supra, 75 Cal.App.5th 198, 205–206 [“Nothing in the 
13

charges, the instructions, or the balance of the trial permitted the 

jury to find Cortes guilty on a theory other than direct aiding and 

abetting or liability as a perpetrator of murder and attempted 

murder”].) 

DISPOSITION

The order summarily denying defendant’s petition for 

resentencing is affirmed.

MORI, J

We concur:

COLLINS, Acting P. J.

ZUKIN, J.