Filed 11/14/23 P. v. Odell 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

FLOYD ODELL,

Defendant and Appellant.

 B324487

 (Los Angeles County

 Super. Ct. No. 

 BA436727)

APPEAL from an order of the Superior Court of Los 

Angeles County, Ronald S. Coen, Judge. Affirmed.

Karyn H. Bucur, 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, and Michael C. Keller and Charles 

S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
2

Defendant and appellant Floyd Odell (defendant) appeals 

from the trial court’s denial of his Penal Code section 1172.6

(former section 1170.95) petition seeking resentencing on prior

convictions for murder (one count) and attempted murder (two 

counts).

1

 We consider whether the trial court correctly found

defendant did not make a prima facie case for relief because his

trial jury was not instructed on felony murder, aiding and 

abetting liability pursuant to the natural and probable 

consequences doctrine, or any theory that would permit imputing 

malice to defendant.

I. BACKGROUND

A. The Offense Conduct, as Established by the Evidence 

at Trial

James Freeman (James) testified he and his wife were 

about to enter their car on May 12, 2015, when he turned to see 

the flash of a gun. He was shot once in the groin. He did not see 

who shot him and he did not recognize defendant at trial. His 

wife, Pamela Freeman (Pamela), testified she knew defendant 

from previous encounters. She saw defendant approach her 

husband, shoot him once, and fire multiple shots at her—with 

one bullet hitting her hand.

Elisha Bables (Bables) testified regarding a separate 

incident that occurred on May 18, 2015. According to Bables, 

Charles Wilson (Wilson), defendant, and friends gathered in 

Wilson’s home for “dominoes, cards, [and] drinking.” Defendant 

and Wilson argued sporadically over “[m]iscellaneous, frivolous 

1 Undesignated statutory references that follow are to the 

Penal Code.
3

things.” Defendant left, but returned a short time later “banging 

on the door.” Bables and Wilson went outside to talk to him. 

Bables was walking in front of Wilson and defendant when she 

heard shots, turned around, and saw defendant “grabbing” 

Wilson. She saw Wilson “sliding down the side of the house” and 

“it looked like [defendant] was shooting him.” Bables begged 

defendant not to hurt her and he left.

At trial, defendant testified he accidentally shot Pamela 

and James. As for Wilson, defendant testified someone else shot 

him. Defendant claimed Wilson approached defendant with a 

gun, defendant hit him, and around the same time, an unknown 

third party fired shots in their direction and defendant reacted by 

using Wilson “like a shield.” Defendant claimed he tried to revive 

Wilson, who had been shot, by “pumping his chest” but left the 

scene when defendant was unsuccessful.

B. Charges, Jury Instructions, and Judgment

Defendant was charged with the murder of Wilson, 

attempted murder of Pamela and James, assault with a firearm 

on Pamela and James, and possession of a firearm by a felon.

The jury instructions relevant to the murder and attempted 

murder charges included CALJIC No. 8.10 (defining murder), 

CALJIC No. 8.11 (malice aforethought), CALJIC No. 8.20 

(deliberate and premeditated murder), CALJIC No. 8.30 

(unpremeditated murder of the second degree), CALJIC No. 8.31 

(second degree murder—killing resulting from unlawful act 

dangerous to human life), CALJIC No. 8.66 (attempted murder),

CALJIC No. 8.67 (attempted murder—willful, deliberate, and 

premeditated), CALJIC No. 8.70 (duty of jury as to degree of 

murder), CALJIC No. 8.71 (doubt whether first or second degree 
4

murder), and CALJIC No. 8.74 (unanimous agreement as to 

offense—first or second degree murder).2

The jury found defendant guilty of the second degree 

murder of Wilson and found various firearm enhancements to be 

true, including that defendant “personally and intentionally 

discharged a firearm, to wit: handgun, which caused death to 

Charles Wilson, within the meaning of . . . section 12022.53[, 

subdivision] (d) . . . .” The jury also found defendant guilty of the 

willful, deliberate, and premeditated attempted murder of 

Pamela. It again found various firearm enhancements to be true, 

including that defendant “personally and intentionally 

discharged a firearm, to wit: handgun, which caused great bodily 

injury to Pamela . . . , within the meaning of . . . section 

12022.53[, subdivision] (d). The jury further found defendant 

guilty on both counts of assault with a firearm (again finding 

various firearm enhancements to be true) and possession of a 

firearm by a felon. The jury was not able to reach a verdict on 

the charge of attempting to murder James.

With the associated firearm enhancements, the trial court 

sentenced defendant to an indeterminate Three Strikes law 

sentence of 50 years to life in prison for the murder of Wilson, 25 

years to life in prison for the attempted murder of Pamela, and 

life in prison for one of the assault with a firearm convictions. 

Sentences on other counts and for other enhancements were 

stayed.

2 This court granted the Attorney General’s request that we 

take judicial notice of the jury instructions. (Evid. Code, §§ 452, 

subd. (d), 459, subd. (a).)
5

C. Section 1172.6 Petition

Defendant filed a section 1172.6 petition for resentencing in 

April 2022. After appointing counsel for defendant and receiving 

briefing, the trial court held a hearing and denied defendant’s 

petition based on his failure to make a prima facie case for relief.

At the hearing, defendant’s attorney argued the court 

should issue an order to show cause and hold an evidentiary 

hearing because “[his] feeling [was] . . . that the—the continuing 

ar[c] of jurisprudence published about this statute continually 

bends toward more and not less in terms of allowing a petitioner 

to have to in court litigate the petition on the merits not [sic] an 

evidentiary hearing. [¶] And it’s an extremely rare case that 

someone is simply barred as a matter of law from being able to 

have an O.S.C. [Defendant’s attorney] was remembering a 

discussion that . . . [Senate Bill No.] 775 specified that the court 

can look at an appellate opinion in a matter for the limited 

purpose of determining case procedural history. And [defendant’s 

attorney] suddenly remembered an 1170.95 case that [he] had 

maybe a year and a half ago, somewhere in the—where the 

appellate opinion actually misstated the procedural history. And 

had . . . an O.S.C. not been granted and had an evidentiary 

hearing not been held, that never would have emerged because 

we wouldn’t have had access to all the documents, to the original 

certified court documents, the trial transcript and the clerk’s 

transcript. [¶] . . . [T]hat’s why the court should err on the side of 

caution and err on the side of the spirit of the statute and grant 

an evidentiary hearing and hold one. Whatever the result, 

whatever the issues that might be present at an evidentiary 

hearing . . . the . . . predominant tone of all the case law that’s 
6

published on this matter is for conducting a hearing and being 

able to litigate it.”

The trial court declined to issue an order to show cause. 

Citing People v. Harden (2022) 81 Cal.App.5th 45, the court 

observed the jury instructions and the verdicts conclusively 

established, with no fact finding or weighing of the evidence

necessary, that defendant was convicted as the actual killer and 

therefore ineligible for relief as a matter of law. The trial court 

emphasized that, in this case, “[t]he only theory of murder and 

attempted murder was malice which would be express for the 

attempted murder.”3 The trial court also cited the jury’s true 

findings as to the various firearm enhancements.

II. DISCUSSION

Defendant’s only challenge to the trial court’s finding that 

he failed to make a prima facie case for relief under section 

1172.6 is an invocation of his trial attorney’s feeling that courts 

ought to err on the side of issuing an order to show cause and 

holding an evidentiary hearing. This is not the law. If, after 

briefing and argument, “the petitioner makes a prima facie 

showing that the petitioner is entitled to relief, the court shall 

issue an order to show cause.” (§ 1172.6, subd. (c).) If, on the 

other hand, “the petition and record in the case establish 

3 The reporter’s transcript indicates the trial court also said

“[t]he only instruction of felony murder natural and probable 

consequences were given in the verdicts.” It is not clear what the 

trial court might have meant by this. There were no written 

instructions as to felony murder or the natural and probable 

consequences doctrine and no references to these theories in the 

verdict forms.
7

conclusively that the defendant is ineligible for relief, the trial 

court may dismiss the petition.” (People v. Strong (2022) 13 

Cal.5th 698, 708; accord People v. Lewis (2021) 11 Cal.5th 952, 

971 [“The record of conviction will necessarily inform the trial 

court’s prima facie inquiry . . . , allowing the court to distinguish 

petitions with potential merit from those that are clearly 

meritless”].)

Here, the trial court correctly determined the record of 

conviction conclusively establishes defendant was not “convicted 

of felony murder 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” or “attempted murder under the natural and probable 

consequences doctrine.” (§ 1172.6, subd. (a).) The jury 

instructions (and the true findings on the firearm enhancements) 

establish defendant was convicted as the actual (attempted) 

killer, not on any theory of criminal liability that did not involve 

his own mens rea. (Harden, supra, 81 Cal.App.5th at 52 [“if the 

record shows that the jury was not instructed on either the 

natural and probable consequences or felony-murder doctrines, 

then the petitioner is ineligible for relief as a matter of law”].)

In addition to challenging the denial of his section 1172.6 

petition, defendant contends the case should be remanded to the

trial court so that court can exercise discretion conferred by 

Senate Bill No. 620 (2017–2018 Reg. Sess.) to strike or dismiss 

certain firearm enhancements. If the argument is advanced 

independent of the aforementioned argument for reversal that we 

have rejected, it is still wrong. “[T]he authority to strike or 

dismiss a firearm enhancement applies only to nonfinal 

judgments or to final judgments where the defendant is being 
8

resentenced under some other law.” (People v. Baltazar (2020) 57 

Cal.App.5th 334, 341.) Defendant will not be resentenced under 

section 1172.6 and his criminal judgment is final.

DISPOSITION

The order denying defendant’s section 1172.6 petition is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.