Filed 12/2/22 P. v. Johnson CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication or ordered published for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

KENDAL JOHNSON,

Defendant and Appellant.

 B314638

 (Los Angeles County

 Super. Ct. No. 

TA124347)

APPEAL from an order of the Superior Court of Los 

Angeles County, Laura R. Walton, Judge. Affirmed. 

Edward H. Schulman, 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, Charles S. Lee and Yun K. Lee, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant Kendal Johnson (defendant) appeals the trial 

court’s denial of his Penal Code section 1172.6 (former Penal 

Code section 1170.95) petition for vacatur of his murder 

conviction.

1

 We are asked to decide whether the prosecution 

established beyond a reasonable doubt that defendant is 

ineligible for relief under section 1172.6; whether the statutory 

process that calls on a trial court, rather than a jury, to 

determine defendant’s eligibility for resentencing violates his 

constitutional rights; and whether we should remand the matter 

to the trial court for consideration of whether he is entitled to 

relief as to his separate attempted murder conviction under the 

current version of section 1172.6—i.e., as amended by Senate Bill 

No. 775 (2021-2022 Reg. Sess.) following the hearing on his 

petition. 

I. BACKGROUND

A. The Murder

Willie Adams Jr. (Adams) was an East Coast Crips gang 

member who sold rock cocaine out of his apartment on Stanford 

Avenue in Los Angeles. His apartment was located in the 

territory of the Avalon Garden Crips, a rival gang. 

Approximately two weeks before victim Adams’ murder, 

Donna Joubert (Joubert), Adams’ downstairs neighbor, witnessed 

people threatening Adams, telling him he couldn’t sell drugs in 

1 Undesignated statutory references that follow are to the 

Penal Code.
3

the apartment building, and saying he was going to have 

problems if they heard he was selling drugs.

2

On July 24, 2009, at around 5:30 or 6:00, Joubert saw codefendant Keith Fuller (Fuller) walking by and looking up at 

Adams’ apartment.

3

 Sometime after midnight, in the early hours 

of July 25, 2009, Renee Sharp (Sharp), another downstairs 

neighbor of Adams, was standing across the street from the 

apartment building when she saw people harassing Adams. 

Sharp began crossing the street, heard a gunshot, and saw the 

people take Adams upstairs. Sharp returned to her apartment, 

from which she could hear yelling, arguing, and ultimately more 

gunshots. 

Glenda Adkins (Adkins), a former member of the 102 East 

Coast Crips, was “working the door” at Adams’ apartment, i.e., 

letting people in and out to buy drugs. Malcolm Wilson (Wilson) 

was also at the apartment. Adkins heard Adams’ van pull up. A 

2 At defendant’s later criminal trial, Joubert denied 

witnessing Avalon gang members harassing Adams in the weeks 

before his murder. After her testimony, Detective Mario Aguilar 

testified he interviewed Joubert after the murder. An excerpt of 

a recording of the interview, during which she described the 

harassment prior to the murder, was played for the jury. 

3 At trial, Joubert testified she did not recall seeing anyone 

looking up at the apartment the evening before the murder. The 

prosecution introduced evidence that Joubert spoke with 

Detective Gerardo Pantoja in November 2009. During that 

interview, she identified Fuller on a photo identification report 

and stated she observed him looking up at Adams’ apartment

sometime prior to the murder. Joubert also acknowledged she 

wrote a statement to that effect on a photo identification report. 
4

few minutes later, she heard Adams ask her to open the door. 

She complied, and Adams, whose face was bleeding and whose tshirt was bloody, was pushed in at gunpoint by co-defendant 

Dashawn Combs (Combs).4

Adams had bullet-hole shaped blood spots on his tank top. 

Defendant and Fuller followed Adams and Combs into the 

apartment. Adkins saw all three men (defendant, Combs, and 

Fuller) carrying guns. The men referenced the Avalon Gardens 

gang and asked where the “dope” was located.5 Adkins and 

Wilson were instructed to get on the floor face down, which they 

did. Combs gave orders, and defendant followed those orders. 

The men ransacked the apartment. Wilson was kicked while on 

the floor. Fuller hit Adkins in the head with a gun. 

Combs took Adams into a bedroom and made him take off 

some of his clothes.6 Defendant and Fuller tore up the apartment 

to find rock cocaine, and found it on a plate in a cabinet in the 

kitchen. Defendant and Fuller also took marijuana from a 

countertop.

4 Wilson testified he was also responsible for opening the 

door at the apartment. According to Wilson, he heard Adams ask 

for them to open the door, he opened the door, and he had a gun 

pointed in his face. Wilson said two of the defendants were 

holding Adams up and the third was pointing a gun in his face. 

He testified only one of the perpetrators had a gun. 

5 Defendant, Fuller, and Combs, were all members of the 

Avalon Garden Crips. 

6 Adkins testified Combs made Adams “get naked.” Sharp, 

who testified she saw Adams lying dead on the kitchen floor after 

the shooting, said Adams was wearing nothing but a t-shirt. 
5

At some point, defendant and Fuller left the apartment.7 

Defendant and Fuller whistled at Combs, urging him to follow. 

Combs brought Adams back into the kitchen and shot him after 

ordering him to get on the floor. Wilson was also shot, but he 

survived.

A “shots fired” call in the vicinity of Adams’ apartment 

went out around 2:15 a.m. Los Angeles Police Department 

Officers responded. Among them was Officer Oscar Villareal, 

who observed blood spots on the sidewalk in front of Adams’ 

apartment complex and followed the blood trail to the front door 

of Adams’ unit. Officer Villareal entered the apartment and 

observed blood spots in the living area and Adams’ partially nude 

body between the kitchen and living area. The apartment 

appeared to have been ransacked.

Officers discovered four expended casings in the living 

room, two shell casings, and a fired bullet. Another shell casing 

was found in a bedroom. An autopsy revealed Adams sustained

three gunshot wounds. Defendant’s fingerprints were recovered 

from a white plate on the kitchen sink counter.

B. The Initial Criminal Proceedings

Defendant (along with co-defendants Combs and Fuller)

was charged in an amended information with murdering Adams

in the commission of robbery and burglary (count 1). The 

7 At defendant’s trial, Adkins was asked whether defendant 

and Fuller were still in the apartment when Combs shot Adams. 

She said defendant “was the first one out the door” “and then 

[Fuller] left behind him.” Adkins also testified Combs “was the 

last one” and specified “[t]hat’s when he turned back around and 

shot [Wilson] . . . .” 
6

information additionally charged defendant (and the codefendants) with attempting to murder Wilson (count 2), first 

degree burglary (count 3), and two counts of home invasion 

robbery—with Adams and Wilson as the named victims (counts 4 

and 5, respectively). The information further alleged all five 

counts were committed for the benefit of, at the direction of, and 

in association with a criminal street gang with the specific intent 

to promote, further, and assist in criminal conduct by the gang. 

Personal discharge and principal-armed firearm enhancements 

were also alleged in connection with counts 1, 2, 4, and 5. 

Defendant was tried separately from co-defendants Fuller 

and Combs. Adkins, Wilson, Sharp, and Joubert testified at trial, 

along with a number of police officers and others involved in the 

investigation.8 

The jury was instructed on, among other legal principles, 

aiding and abetting, murder with malice aforethought, felony 

murder, and attempted murder (including principles of 

premeditation and deliberation). The attempted murder 

instruction informed the jury that the People must prove 

defendant “took at least one direct but ineffective step toward 

killing another person” and defendant “intended to kill that 

person.” The deliberation and premeditation instruction 

associated with the attempted murder charge informed the jury it 

must decide whether the People proved that the attempted 

murder was committed willfully, and with deliberation and 

8 As mentioned ante and described in some detail in the prior 

appellate opinion in this case, various aspects of the testimony 

Adkins and Joubert gave at trial conflicted with prior statements 

they had given to the police. (People v. Johnson (Mar. 30, 2017, 

B262599) [nonpub. opn.].)
7

premeditation, if it found defendant committed attempted 

murder. The jury was not instructed on aiding and abetting 

liability under the natural and probable consequences doctrine in 

connection with the attempted murder charge. 

Defendant was convicted on all five counts. As to count 1, 

the jury found him guilty of first degree murder and found true 

the allegations that he committed the murder while engaged in 

the crimes of robbery and burglary. The jury also found true, in 

connection with counts 1, 2, 4, and 5, the gang allegations and 

the allegations that a principal personally and intentionally 

discharged a firearm proximately causing great bodily injury and 

death to Adams. The jury found not true all allegations that 

defendant personally used or discharged a firearm. Defendant

was sentenced to life in prison without parole, along with 

additional terms both consecutive and concurrent.

On direct appeal of the criminal judgment, another panel of 

this court affirmed his conviction, with some modifications to his 

sentence. (People v. Johnson (Mar. 30, 2017, B262599) [nonpub. 

opn.].)

C. Defendant’s Petition for Resentencing 

1. The petition 

Defendant filed a section 1172.6 petition for resentencing in 

June 2021. Defendant asserted he was convicted of first or 

second degree murder pursuant to the felony murder rule and 

could not now be convicted of first or second degree murder 

because of changes made to Penal Code sections 188 and 189—

specifically, because he was not Adams’ actual killer, did not aid 

and abet the killer with the intent to kill, and was not a major
8

participant in the felony who acted with reckless indifference to 

human life.9

The trial court (the same judge who presided over 

defendant’s trial) found defendant made a prima facie case for 

resentencing, appointed counsel for defendant, and set a hearing 

on the petition. 

The People opposed the petition and submitted the trial 

transcripts from defendant’s trial and from Fuller and Combs’ 

trial, the clerk’s transcripts from both cases, and trial exhibits. 

Defendant objected to the prosecution’s submission of the Fuller 

and Combs materials.

10

 At the section 1172.6 hearing, defendant

also presented new evidence: his testimony. 

2. Summary of defendant’s testimony at the 

hearing

Defendant was a member of the Avalon Garden Crips gang, 

and had been a member in July 2009. He was in the area of 

Adams’ apartment complex, which he claimed was located in 

gang-neutral territory, at around 10 or 11 p.m. on the night of the 

murder.

9 Defendant’s petition did not reference his attempted 

murder conviction, but the brief defendant filed after filing the 

initial petition did. The brief stated that it appeared section 

1170.95 did not apply to that conviction because “there was no 

natural and probable consequences instruction.” 

10 The objection is not pressed on appeal. As defendant 

states, the trial court did not reference the transcripts of the 

Fuller and Combs trial in its ruling on defendant’s section 1172.6 

petition.
9

At that time, defendant joined a conversation involving an 

older man, during which the older man told them about drugs 

being sold at Adams’ apartment. Fuller and Combs—who 

defendant described as a “nobody” and a kid with “no say”—also 

joined the conversation. Defendant knew Fuller and Combs were 

Avalon Garden Crips gang members too, but he was not close to 

them. Defendant was close to Combs’ older brother; Combs was 

younger than defendant. 

After the conversation, Fuller and Combs left. Defendant 

then saw Fuller and Combs moving toward Adams’ apartment 

building, assumed they intended to rob someone, and took off 

running. Defendant retrieved a sweater from his car and caught 

up with the two when they were on their way upstairs; he 

intended to participate in a robbery to get money and drugs. 

Defendant did not have a gun, but he was pretty sure someone 

had a gun because you need a gun to perform a robbery. 

Defendant explained a weapon would be necessary to scare the 

victims and asserted it would be something to be used if needed. 

As defendant ran up the stairs behind Fuller and Combs, 

Adkins opened the apartment door and moved out of the way. 

Defendant could not see Adams, but he saw there was blood “up 

the stairs.” Defendant entered the apartment behind the other 

two men, ran straight to the kitchen, opened cabinets, located 

and took drugs and money, and ran off. Defendant did not know 

what Fuller and Combs were doing. When he left the kitchen, 

defendant saw Adkins and Wilson laying on the floor. Defendant 

did not want the other men to know he had the money because he 

did not want to share, so he pocketed the money and left with the 

drugs. 
10

Defendant denied hearing any gunshots. He also denied 

hearing any yelling. Defendant said he was in the apartment for 

less than five minutes.

3. The trial court’s ruling

The trial court denied defendant’s section 1172.6 petition, 

finding defendant was a major participant in Adams’ murder who 

acted with reckless indifference to human life.

The trial court opined it was very hard to believe, given the 

way the robbery was conducted (the three defendants watched for 

Adams to return home around 2 a.m. before they struck), that it 

was not planned in advance. The court believed aspects of

defendant’s testimony made no sense, e.g., that he divined Fuller 

and Combs were going to commit a robbery merely from their

moving in the direction of Adams’ apartment. The court did 

credit defendant’s testimony that you would need a gun to rob a 

“drug house,” but the court did not believe his statement that 

there was no previous conversation about who would have guns 

and how the robbery was going to occur.

The court found the evidence indicated defendant was part 

of the ransacking of the apartment, during which Adkins was 

pistol-whipped and Wilson was kicked. This was the time at 

which Combs took Adams into his bedroom and ordered him to 

take off his clothes. The court noted the apartment was a small 

space and emphasized the testimony in the case did not suggest 

defendant left a few minutes into the crime while Fuller and 

Combs continued the robbery. Instead, in the trial court’s view, 

the testimony was that Combs executed Adams, and attempted to 

execute Wilson too, as defendant and Fuller were leaving. 
11

The trial court accordingly concluded defendant satisfied 

the People v. Banks (2015) 61 Cal.4th 788 (Banks) definition of a 

major participant in a crime. The court found defendant had a 

role in planning the criminal enterprise that led to Adams’ death, 

emphasizing that the perpetrators waited until Adams returned 

to his apartment and then committed the crime, which was 

evidence of advance planning. There was no direct evidence 

defendant supplied any guns used in the crime, but defendant’s

testimony indicated he knew guns were going to be used during 

the robbery and the court believed he in fact knew guns had been 

used during the course of the crime. The court acknowledged

there was no evidence establishing beyond a reasonable doubt 

that defendant was present at the actual moment of the fatal 

shooting (or knew in advance that Combs would execute Adams 

and attempt to kill Wilson), but the court opined defendant was

still in a position to prevent the murder because he was present 

at the scene of the crime and was older than Combs (who 

defendant described as a “nobody”). Nonetheless, the trial court 

observed, defendant did nothing to prevent anyone from getting 

hurt because he just wanted drugs and money. 

The trial court also found defendant acted with reckless 

indifference to human life as that concept is explained in People 

v. Clark (2016) 63 Cal.4th 522 (Clark). Defendant knew weapons 

were going to be used in the robbery. He was involved in the 

robbery and had an opportunity to stop the killing or aid the 

victim. Once they entered the apartment, the crime lasted seven 

to fifteen minutes, during which Adkins and Wilson were lying on 
12

the floor and Adams was restrained and told to strip. The court 

also found defendant did not attempt to minimize the violence.11

II. DISCUSSION

The three bases for reversal defendant advances are all 

unpersuasive.

As for the sufficiency of the evidence, defendant does not 

challenge the finding that he was a major participant in the 

underlying crimes; the only contested issue is whether his 

conduct exhibited a reckless indifference to human life. 

Substantial evidence supports the trial court’s determination that 

it did. Defendant participated in a middle-of-the-night, armed 

home invasion robbery of a rival gang’s apartment used for 

selling drugs. There was evidence he was present for nearly all of 

what transpired during that robbery and made no effort to 

prevent the violence that occurred. The trial court also fairly 

inferred that defendant participated in the planning for the 

robbery, and the totality of the circumstances suffices to establish 

the requisite indifference.

Defendant’s constitutional challenge to the section 1172.6 

procedure (assigning trial courts, not juries, to determine 

whether relief is warranted) also fails. A jury determination is 

11 The trial court expressly addressed our Supreme Court’s 

revisitation of the reckless indifference to life concept in In re 

Scoggins (2020) 9 Cal.5th 667 (Scoggins). In addition to the facts

already discussed, the trial court emphasized two or three guns 

were used in the commission of the crime and defendant was 

present at the crime scene. Defendant’s knowledge of his 

confederate’s propensity for violence or likelihood of using lethal 

force, on the other hand, was unknown.
13

not required because section 1172.6 does not increase 

punishment; it is instead an avenue for a possible reduction in 

sentence. There is also no equal protection problem with the 

procedure chosen by the Legislature.

Finally, as to the effect of recent substantive amendments 

to section 1172.6, we need not remand the matter for the trial 

court to determine whether defendant is eligible for relief on his 

attempted murder conviction. The record demonstrates the jury 

was not instructed on the natural and probable consequences 

doctrine in connection with the attempted murder charge and 

defendant is thus ineligible for resentencing as a matter of law.

A. Section 1172.6 and Appellate Review

“Effective January 1, 2019, the Legislature passed Senate 

Bill 1437 ‘to amend the felony murder rule and the natural and 

probable consequences doctrine, as it relates to murder, to ensure 

that murder liability is not imposed on a person who is not the 

actual killer, did not act with the intent to kill, or was not a 

major participant in the underlying felony who acted with 

reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, 

subd. (f).) In addition to substantively amending sections 188 

and 189 of the Penal Code, Senate Bill 1437 added section 

1170.95 [now renumbered as section 1172.6], which provides a 

procedure for convicted murderers who could not be convicted 

under the law as amended to retroactively seek relief.

[Citation.]” (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)

In October 2021, Senate Bill No. 775 was enacted and 

amended former section 1170.95, effective on January 1, 2022. 

(Stats. 2021, ch. 551, § 1). As a result of these amendments, 

section 1172.6 provides that “person[s] convicted of felony murder 
14

or murder under the natural and probable consequences doctrine 

or other theory under which malice is imputed to a person based 

solely on that person’s participation in a crime, attempted 

murder under the natural and probable consequences doctrine, or 

manslaughter,” may file a petition to have that conviction 

vacated under certain circumstances. (§ 1172.6, subd. (a).) If the 

petitioner makes a prima facie showing that the petitioner is 

entitled to relief, the trial court must issue an order to show 

cause. If an order to show cause issues, the court then “hold[s] a 

hearing to determine whether to vacate the murder, attempted 

murder, or manslaughter conviction and to recall the sentence 

and resentence the petitioner on any remaining counts,” unless 

the parties “waive a resentencing hearing and stipulate that the 

petitioner is eligible to have his or her . . . conviction vacated and 

to be resentenced.” (§ 1172.6, subd. (d)(1)-(2).) “At the 

hearing . . . the burden of proof . . . [is] on the prosecution to 

prove, beyond a reasonable doubt, that the petitioner is guilty of 

murder or attempted murder . . . .”

12 (§ 1172.6, subd. (d)(3).)

On appeal from a trial court’s order denying a section 

1172.6 petition following a subdivision (d)(3) hearing, this court 

evaluates the sufficiency of the evidence for the court’s 

determination using the substantial evidence standard of review.

12 The trial court held the order to show cause hearing on 

defendant’s petition prior to the effective date of Senate Bill No. 

775. With the exception of defendant’s argument regarding his 

attempted murder conviction, defendant does not argue the trial 

court’s analysis is infirm under the prevailing version of section 

1172.6. We have reviewed the trial court’s ruling and conclude it 

comports with current law.
15

(People v. Garrison (2021) 73 Cal.App.5th 735, 747.) Questions of 

law are reviewed de novo. (Lewis, supra, 11 Cal.5th at 961.)

B. Substantial Evidence Supports the Trial Court’s 

Finding that Defendant Exhibited the Requisite 

Reckless Indifference to Life 

A defendant who is a major participant in a murder and 

exhibits reckless indifference to human life can be convicted of 

felony murder under current law and is therefore ineligible for 

section 1172.6 relief. (§ 1172.6, subds. (a)(3), (d)(3); see also

§ 189, subd. (e)(3).) That is the case here.

Clark, supra, 63 Cal.4th 522, outlined how courts should 

determine whether a defendant acted with reckless indifference 

to human life. (Id. at 618-623.) Our high court recently 

recounted the pertinent factors with some elaboration in 

Scoggins, supra, 9 Cal.5th 667: “Did the defendant use or know 

that a gun would be used during the felony? How many weapons 

were ultimately used? Was the defendant physically present at 

the crime? Did he or she have the opportunity to restrain the 

crime or aid the victim? What was the duration of the interaction 

between the perpetrators of the felony and the victims? What 

was the defendant’s knowledge of his or her confederate’s 

propensity for violence or likelihood of using lethal force? What 

efforts did the defendant make to minimize the risks of violence 

during the felony? [Citation.] ‘“[N]o one of these considerations 

is necessary, nor is any one of them necessarily sufficient.”’ (Id.

at p. 618, quoting Banks, supra, 61 Cal.4th at p. 803.)” (Scoggins, 

supra, 9 Cal.5th at 677.) As Scoggins explains, “[r]eckless 

indifference to human life is ‘implicit in knowingly engaging in 

criminal activities known to carry a grave risk of death.’”
16

(Scoggins, supra, 9 Cal.5th at 676.) The concept “‘encompasses a 

willingness to kill (or to assist another in killing) to achieve a 

distinct aim, even if the defendant does not specifically desire 

that death as the outcome of his actions.’” (Id. at 676-677.) 

Participation “in a garden-variety armed robbery” where “death 

might be possible but not probable” is accordingly insufficient. 

(Banks, supra, 61 Cal.4th at 802.)

Substantial evidence supports the trial court’s 

determination that these factors reveal defendant harbored the 

requisite reckless indifference at the time of Adams’ murder. 

Regarding gun use and numerosity, even defendant’s own 

testimony establishes he knew in advance a gun would be used; 

as he put it, you need a gun to perform a robbery. But apart from 

defendant’s version of events, there was evidence (Adkins’ 

testimony) that all three assailants—including defendant—were 

carrying guns when they entered Adams’ apartment. And while 

it is true the jury found only Combs fired the fatal shot, there was 

also evidence that the robbers used their guns to obtain 

compliance from the victims (e.g., Fuller striking Adkins in the 

head with his gun while defendant was present at the scene).

The factors related to defendant’s role in the crime and its 

duration also support the trial court’s ruling. It is undisputed 

defendant was physically present for the home invasion robbery, 

entering Adams’ apartment with Combs and Fuller and 

ransacking it while searching for drugs and money. Although (as 

the trial court found) the prosecution did not establish beyond a 

reasonable doubt that defendant was present when the fatal shot 

was fired, he was present when acts of violence were perpetrated 
17

on all three victims.

13

 The use of actual violence (including the 

rather ominous command that Adams disrobe) would reasonably 

indicate to any participant in the crime a greater risk of lethal 

violence than a garden variety armed robbery where only threats 

and intimidation are used.

14

 The trial court also found the 

robbery lasted approximately seven to fifteen minutes, which is a 

fairly significant stretch of time—not a quick, in-and-out episode. 

These are all aggravating factors under the Clark and Scoggins

criteria.

Consideration of defendant’s knowledge about his 

confederates’ propensity for violence or likelihood of using lethal 

force is less straightforward. The trial court correctly found there 

was no evidence defendant knew in advance his accomplices were 

13 Adkins testified defendant was present when Adkins and 

Wilson were instructed to get on the ground, when Adkins was 

hit with a gun, when Wilson was kicked, and when Combs took 

Adams into another room in the apartment and forced him to 

strip.

14 Indeed, this was not a standard armed robbery. Rather, it 

was a middle-of-the-night home invasion robbery of a drug dealer 

in a rival gang. The evidence indicates defendant and the others 

waited to carry out the crime until Adams was arriving at his 

home, accosting him outside and forcing him to secure their 

access to his apartment at gunpoint. It thus carried a 

particularly high risk of deadly violence. (See, e.g., In re 

McDowell (2020) 55 Cal.App.5th 999, 1013 [armed home invasion 

robbery of drug dealer posed obvious risk of lethal violence 

evidencing reckless indifference to human life]; People v. 

Bascomb (2020) 55 Cal.App.5th 1077, 1089-1090 [planned armed 

robbery of drug dealer at his home is factor showing reckless 

indifference].)
18

likely to use lethal force. But there is evidence that defendant, 

Fuller, and Combs were all in the same criminal street gang and 

that defendant was present during all or nearly all of the seven to 

fifteen minute episode where violence was used. Defendant’s 

presence when violence was used—before culminating minutes 

later in Adams’ murder—is some evidence he had advance 

knowledge of his accomplices’ propensity for violence. But the 

record does not establish defendant knew before taking part in

the home invasion robbery at Adams’ apartment that Combs and 

Fuller were especially violent individuals or likely to use lethal 

force. Overall, then, we are of the view that the propensity for 

violence considerations do not strongly militate in favor of a 

reckless indifference to life finding.

Finally, and in significant contrast, there was solid

evidence that defendant had an opportunity to restrain the crime 

and aid the victims but did nothing to discourage the use of 

violence or help the captive victims. Defendant was older than 

fellow gang member Combs, and there is no reason apparent in 

the record why defendant would have felt compelled to go along 

with the violent crime without protest. Even assuming defendant 

was not present when Combs actually shot Adams, defendant 

still could have taken other steps to encourage Combs to leave 

the apartment without shooting Adams and Wilson.

The totality of the evidence just summarized is substantial 

and supports the trial court’s reckless indifference finding. 

Defendant focuses on two points in urging the contrary, but 

neither is convincing. He argues the trial court’s finding that 

defendant knew one of his codefendants would be armed with a 

gun is not sufficient to prove the requisite mental state. 

Defendant is correct that such knowledge alone is insufficient to 
19

prove he acted with reckless indifference to human life, but our 

discussion to this point demonstrates that is not the only factor 

that supports the trial court’s finding. Defendant also 

emphasizes the trial court’s factual findings in his favor: he was 

not aware any of his confederates were likely to kill Adams or 

attempt to kill Wilson, it was unknown whether defendant knew 

of Combs’ propensity for violence or likelihood of using lethal 

force, and defendant (and Fuller) apparently left the apartment 

before Combs shot Adams and Wilson. None of these findings, 

however, compel a conclusion that defendant lacked the ability to 

restrain the crime.

C. The Section 1172.6 Procedure Is Constitutional

Defendant contends the constitution requires a jury, not a 

trial judge, to determine whether he is entitled to relief under 

section 1172.6. He argues that due process and equal protection

guarantees require such a result because an individual who today 

is tried on the same offenses would have a jury determine the 

relevant issues, not the trial judge.

The Due Process Clause of the Fourteenth Amendment and 

the jury-trial guarantee of the Sixth Amendment, “[t]aken 

together, . . . indisputably entitle a criminal defendant to ‘a jury 

determination that [he] is guilty of every element of the crime 

with which he is charged, beyond a reasonable doubt.’” (Apprendi 

v. New Jersey (2000) 530 U.S. 466, 476-477.) Section 1172.6

petitioners, however, are not criminal defendants charged anew 

with murder and therefore constitutionally entitled to a jury 

trial. Rather, they are individuals who have been convicted of 

murder, whose convictions are final, and who can constitutionally

be punished for murder despite the ameliorative changes to the 
20

law of murder enacted by Senate Bill 1437. (See, e.g., People v. 

Conley (2016) 63 Cal.4th 646, 656 [“the Legislature . . . may 

choose to modify, limit, or entirely forbid the retroactive 

application of ameliorative criminal law amendments if it so 

chooses”].) In other words, section 1172.6 “is ‘an act of lenity’

that requires, under specified circumstances, reduction of the 

offense for which [a defendant] was properly convicted.” (People 

v. James (2021) 63 Cal.App.5th 604, 609.) “No constitutional 

provision required the Legislature to authorize relief under the

conditions specified in section [1172.6] and none compels it to 

make the conditions subject to jury determination.”

15

 (Ibid.; see

also People v. Howard (2020) 50 Cal.App.5th 727, 740.)

Defendant’s reliance on the Equal Protection Clause fares 

no better. “‘[T]he 14th Amendment does not forbid statutes and 

statutory changes to have a beginning, and thus to discriminate 

between the rights of an earlier and later time.’ [Citation.]” 

(People v. Floyd (2003) 31 Cal.4th 179, 191.) Rather, “‘[t]he 

Legislature properly may specify that such statutes are 

prospective only, to assure that penal laws will maintain their 

desired deterrent effect by carrying out the original prescribed 

punishment as written.’ [Citation.]” (Id. at 188; see also People 

v. Lizarraga (2020) 56 Cal.App.5th 201, 210 [“‘Retroactive 

application of a punishment-mitigating statute is not a question 

of constitutional right but of legislative intent’”].)

15 Defendant argues Senate Bill 1437 was not an act of lenity

because it does not involve discretionary sentencing procedures. 

While some acts of lenity have involved discretionary sentencing 

procedures, defendant points to no authority (and we are aware 

of none) holding that only such procedures can constitute acts of 

lenity.
21

D. Passage of Senate Bill No. 775 Does Not Require a 

Remand

At the time the trial court denied defendant’s section 

1170.95 petition, the relief available under that statute applied 

only to those convicted of murder. (Former § 1170.95, subd. (a); 

Stats. 2018, ch. 1015, § 4.) As previously mentioned, Senate Bill 

No. 775 expanded the statute to apply to convictions for 

attempted murder as well.

Defendant argues this expansion requires us to remand the 

matter to the trial court for a hearing on his eligibility for 

resentencing on the attempted murder conviction. The People, in 

turn, argue defendant would have to file a new resentencing 

petition for relief on the attempted murder conviction. They 

further argue that defendant is ineligible for relief as a matter of 

law in any event, citing the absence of a jury instruction on 

attempted murder under the natural and probable consequences 

doctrine.

We will assume for argument’s sake that defendant is 

entitled to rely in this appeal on amendments made by Senate 

Bill No. 775. But even as so amended, the statutory scheme 

applies only to attempted murder convictions that are predicated 

on the natural and probable consequences doctrine. (§ 1172.6, 

subd. (a) [“A person convicted of . . . attempted murder under the 

natural and probable consequences doctrine . . . may file a 

petition”].) The jurors in this case were not instructed on that 

doctrine as to the attempted murder count. They were instead 

instructed on a theory of direct aiding and abetting, as well as on 

attempted murder and premeditation and deliberation in 

attempted murder. The jury was advised that an attempted 

murder conviction required a finding that “the defendant 
22

intended to kill [the victim].”16 Direct aiding and abetting 

remains a valid theory of attempted murder after the enactment 

of Senate Bill No. 775. (People v. Sanchez (2022) 75 Cal.App.5th 

191, 197.) Defendant is thus ineligible for resentencing as a 

matter of law, and no remand is necessary.

16 Defendant concedes the jury was not instructed on the 

natural and probable consequences doctrine as to the attempted 

murder count. He nevertheless contends this does not mean he is 

ineligible for relief because the court’s instructions on felony 

murder, in combination with its aiding and abetting instructions 

and in light of the evidence presented, could have led the jury to 

conclude attempted murder was a natural resulting consequence 

of the underlying burglary and robbery. The argument is 

unavailing; we proceed on the understanding that the jury 

properly followed the instructions it was given. (See People v. 

Seumanu (2015) 61 Cal.4th 1293, 1336 [reviewing court must 

assume the jury properly followed the instructions provided].)
23

DISPOSITION

The order denying defendant’s petition for resentencing 

under section 1172.6 is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.