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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE

,
Plaintiff and Respondent

,

v.

K ENDAL JOHNSON

,
Defendant and Appellant. B314638

(Los Angeles County Super. Ct. No. TA124347 )

APPEAL from a n 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 Att orney s 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 resen tencing violate s 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 Adam s , telling hi m 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 co

defendant 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 th e 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’ apartme nt, 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 w ith 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 s tatement 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, who se face was bleeding and wh ose t

shirt 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, C om bs, 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 co caine, and found it on a plate in a cabinet in the
kitchen. Defendant and Fuller also took marijuana from a

counter top

.

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 i n 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 brough t 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’ uni t. 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 li ving 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 wa s asked whether defendant and Fuller were still in the apartment when Combs shot Adams

. S he said d efendant “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 h e turned back around and shot [Wilson]

. . . 

### .”6

information additionally charged defendant (and the co

defendants) 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

w ere 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
inves tigation. 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 i nformed 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 give n 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 princi pal 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 wi thout 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 sec tion 1172.6 petition for resentencing in
June 2021. Defendant asserted he was convicted of first or second degree murder pursuant to the felony murder rul e 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 major8

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 hear ing 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 submis sion of the Fuller
and Combs materials

. 10 At the section 1172.6 hearing, d efendant 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 appeare d 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
buil ding , 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 no t 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 sta irs 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 of f. 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 o pined it was very hard to believe, given the way the robbery was conducted (the three defendants watch ed 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

m oving 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 t he robbery was going to occur.
T he 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 Co m bs 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 t he robbery. Instead, in the trial court’s view,

t he 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 i n 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 e xecute 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 tria l 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 a n 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 on12

the floor and Adams was restrained and told to strip. The court
also found defen dant 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, d efendant does not challenge the finding that he was a major participant in th e 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 i nvasion 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 tha t defendant participated in the planning for the robbery , and the totality of the circumstances suffice s 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

. D efendant’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 tria l court to determine whether defendant is eligible for relief on his attempted murder conviction . T he record demonstrates the jury was not instructed on the natural and probable consequences
doctrine in connection with the attempted murder charge and
defe ndant 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 lif e. ’ (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 c ould 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 the se amendments,
section 1172.6 provides that “ person[s] convicted of felony murder14

or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a perso n 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 va cate 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 h er

. . . 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 evid ence 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, d efendant 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 an d 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. (§ 117 2. 6, subd s . ( 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 re cently 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 know ledge 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 a ny 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 activ ities 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.)
P articipation “ 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 kn ew 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 A dams’ apartment. And while it is true the jury found only Combs fired the fatal shot , the re was also evidence that the robbers used their guns to obtain compliance from the victims ( e.g., Fuller strik ing 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 w ere perpetrated17

on all three victims

. 13 T he 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 apart ment 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. T he 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 d uring 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. Overa ll, 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

, t here 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 a ssuming 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 tota lity 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 o ne 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 in sufficient to19

prove he acted with reckless indifference to human life , b ut 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 o r 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,
how ever, 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 und er 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.) S ection 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 the20

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, s ection 1172.6 “i s ‘ 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. ; s ee 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, 1 91 .) Rather, “‘[t] he Legislatur e 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.]” ( I d

. a t 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 D efendant 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 disc retionary sentencing procedures, defendant points to no authority (an d 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 sta tute 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, argu e 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 mur der under the natural and probable consequences
doctrine.
W e 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 attempt ed murder convictions that are predicated

on the natural and probable consequences doctrine. (§ 1 172.6
, 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 defendant22

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. San chez (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 doctrin e 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.