1

Filed 4/17/24 (unmodified opn. attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

NICHOLAS BEAUDREAUX,

Defendant and Appellant.

A166001

(Alameda County Super. Ct.

No. 160022B)

ORDER MODIFYING OPINION;

NO CHANGE IN JUDGMENT

BY THE COURT:

The court orders that the opinion filed in this appeal on March 28, 

2024, be modified as follows:

1. On page 1, move footnote 1 from after “Penal Code” to the end of 

the sentence (there is no change to the wording of footnote 1) so 

that the sentence and footnote read as follows:

Nicholas Beaudreaux, who is now serving an aggregate 

sentence of 50 years to life for the first degree murder and 

attempted robbery of Wayne Drummond, has twice 

unsuccessfully petitioned for resentencing under Penal Code 

section 1172.6.1

1 Undesignated statutory references are to the Penal Code. Originally 

numbered section 1170.95 when enacted in 2018 as Senate Bill No. 1437

(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4) (Senate Bill 1437), the 

statute was renumbered to section 1172.6 effective June 30, 2022 (Stats. 
2

2. On page 2, in the first paragraph of the Background section, in 

the first sentence change “a” to “the” before “clerk’s” (and 

retaining footnote 2) so the sentence and footnote read as follows:

The pertinent record of conviction consists of the clerk’s 

transcript, the trial court minutes, and the jury instructions 

and verdicts from the underlying proceedings against 

Beaudreaux in 2009.

2

3. On page 24, in the first paragraph, delete the fourth sentence 

(which begins with “After taking”) and replace with the following 

sentence so it reads:

After taking the entirety of the record of conviction into 

account, the dispositive considerations for us are that (1) while 

Crowder was charged as a codefendant with murder, he was 

never charged with discharging a gun or inflicting great bodily 

injury on Drummond, and (2) the jury instructions did not 

supply a basis for the jury to convict Beaudreaux as an aider 

and abettor, even if it concluded independently that 

Drummond was the shooter.

2022, ch. 58, § 10). Because this statutory change does not affect our 

consideration of the issues raised in this appeal, we refer to the statute as 

section 1172.6 throughout the rest of this opinion even though it was 

referenced in the proceedings below by its former enumeration. 

2 The appellate record in this case also contains (1) the 2020 appellate 

court opinion, which, as further explained below, we may consider for 

procedural history only, and (2) a probation department report, which we 

cannot consider because, “[o]rdinarily, a probation officer’s report is not a 

part of the record of conviction.” (People v. Del Rio (2023) 94 Cal.App.5th 47, 

56, following People v. Burnes (2015) 242 Cal.App.4th 1452, 1458; accord, 

People v. Soto (2018) 23 Cal.App.5th 813, 816, fn. 2.)
3

The modifications effect no change in the judgment.

Date: _____________________ ________________________P. J.

 J. Brown
4

Trial Court: Superior Court of California, County of Alameda

Trial Judge: Hon. Morris D. Jacobson

Counsel: Janet J. Gray, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Assistant Attorney General, Jeffrey M. Laurence, Senior 

Assistant Attorney General, Bridget Billeter, Supervising 

Deputy Attorney General, and Masha A. Dabiza, Deputy 

Attorney General, for Plaintiff and Respondent.
1

Filed 3/28/24 (unmodified opinion)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

NICHOLAS BEAUDREAUX,

Defendant and Appellant.

A166001

(Alameda County 

 Super. Ct. No. 160022B)

Nicholas Beaudreaux, who is now serving an aggregate sentence of 50 

years to life for the first degree murder and attempted robbery of Wayne 

Drummond, has twice unsuccessfully petitioned for resentencing under Penal 

Code3 section 1172.6. In the resentencing proceedings on his second petition, 

the trial court ruled that the order denying relief on his first petition, an 

order we affirmed in 2020, forecloses relief. 

Beaudreaux appeals again, this time relying on our Supreme Court’s 

decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis), which clarified the 

3 Undesignated statutory references are to the Penal Code. Originally 

numbered section 1170.95 when enacted in 2018 as Senate Bill No. 1437

(2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4) (Senate Bill 1437), the 

statute was renumbered to section 1172.6 effective June 30, 2022 (Stats. 

2022, ch. 58, § 10). Because this statutory change does not affect our 

consideration of the issues raised in this appeal, we refer to the statute as 

section 1172.6 throughout the rest of this opinion even though it was 

referenced in the proceedings below by its former enumeration. 
2

applicable procedural law governing section 1172.6 resentencing proceedings

in some notable ways. He also relies on Senate Bill No. 775 (2021–2022 Reg. 

Sess.) (Stats. 2021, ch. 551) (Senate Bill 775), which was enacted in late 2021, 

codifying and in some respects clarifying Lewis. 

We will again affirm. We agree with Beaudreaux that, in light of Lewis

and Senate Bill 775, the trial court erred at the prima facie stage of these 

resentencing proceedings by once again failing to appoint counsel, and by 

relying on substantive facts summarized in this court’s 2011 opinion 

affirming his conviction. But those errors were harmless.

The dispositive question here is this. Based on the record of conviction 

before us—which consists of the jury instructions in Beaudreaux’s 2009 trial, 

the jury’s verdicts, and the findings accompanying the verdicts—must we 

conclude that Beaudreaux was convicted as Drummond’s actual killer? We 

think so. The record here is limited, but it is sufficient to refute conclusively 

Beaudreaux’s attempt to allege entitlement to section 1172.6 relief. 

I. BACKGROUND

The pertinent record of conviction consists of a clerk’s transcript, the

trial court minutes, and the jury instructions and verdicts from the 

underlying proceedings against Beaudreaux in 2009.

4 Supplementing that, 

we grant Beaudreaux’s request for judicial notice under Evidence Code 

sections 452 and 459 of (1) our 2011 appellate opinion affirming his 

conviction in the underlying case (People v. Beaudreaux (Jul. 21, 2011, 

4 The appellate record in this case also contains (1) the 2020 appellate 

court opinion, which, as further explained below, we may consider for 

procedural history only, and (2) a probation department report, which we 

cannot consider because, “[o]rdinarily, a probation officer’s report is not a 

part of the record of conviction.” (People v. Del Rio (2023) 94 Cal.App.5th 47, 

56, following People v. Burnes (2015) 242 Cal.App.4th 1452, 1458; accord, 

People v. Soto (2018) 23 Cal.App.5th 813, 816, fn. 2.)
3

A126140) [nonpub. opn.] (Beaudreaux I)), and (2) the clerk’s transcript filed 

in the appeal from the trial court’s denial of his previous resentencing 

petition (People v. Beaudreaux (Aug. 31, 2020, A159751) [nonpub. opn.]

(Beaudreaux II).) From this limited record, we glean the following procedural 

facts.

A. Beaudreaux’s 2009 Trial and Convictions

In December 2008, Beaudreaux and a codefendant, Brandon Crowder,

were charged in an information filed by the Alameda County District 

Attorney with the same two counts: (1) murdering Drummond in violation of 

section 187, subdivision (a), and (2) attempting to rob Drummond in violation 

of section 211, both crimes occurring on or about September 4, 2006.

Each count included the same two sentencing enhancement allegations: 

against Crowder, under section 12022, subdivision (a)(1), that during the 

commission of the crime “a principal” was armed with a firearm; and against 

Beaudreaux, under sections 12022.5, 12022.7, and 12022.53, that he 

personally and intentionally discharged a firearm and caused great bodily 

injury and death to Drummond. But only Beaudreaux was charged with 

personally and intentionally discharging a firearm, causing great bodily 

injury and death to Drummond. 

A jury trial followed. In the parlance of criminal trial practice, Crowder 

“flipped” just as trial began. On the second day of the proceedings, the trial 

court accepted Crowder’s change of plea on the murder count from not guilty

to no contest to the lesser included offense of voluntary manslaughter under 

section 192, subdivision (a). The court dismissed the remainder of the 

charges against him and proceeded against Beaudreaux alone, with Crowder 

among the witnesses testifying on behalf of the prosecution. 

The jury was instructed in relevant part on malice murder, felony 

murder, and attempted robbery, including the instruction that “[t]he 
4

defendant has been prosecuted for first degree murder under two theories: 

(1) The murder was willful, deliberate and premeditated; and (2) Felony 

murder.” The instruction on malice murder stated: “The defendant is 

charged in Count 1 with murder in violation of Penal Code [section] 187. [¶]

To prove that the defendant is guilty of this crime, the People must prove 

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.” (Italics added.) 

The felony-murder instruction stated: “The defendant is charged in 

Count 1 with murder, under a theory of felony murder. [¶] To prove that the 

defendant is guilty of first degree murder under this theory, the People must 

prove that: [¶] 1. The defendant committed attempted robbery; [¶] 2. The 

defendant intended to commit attempted robbery; [¶] AND [¶] 3. While 

committing attempted robbery, the defendant did an act that caused the 

death of another person. [¶] A person may be guilty of felony murder even if

the killing was unintentional, accidental, or negligent.” (Italics added.)

The jury was also instructed that, if it found Beaudreaux guilty of the 

crimes charged against him, it was to consider the firearm use allegations in 

accordance with the following guidance: “To prove that the defendant 

intentionally discharged a firearm, the People must prove that: [¶] 1. The 

defendant personally discharged a firearm during the commission of that 

crime; [¶] AND [¶] 2. The defendant intended to discharge the firearm. [¶] If 

the People have proved both 1 and 2, you must then decide whether the 

People also have proved that the defendant’s act caused the death of a 

person.” (Italics added.)

There was a jury instruction addressing Crowder’s testimony, which 

stated as follows: “Before you may consider the testimony of Brandon 
5

Crowder as evidence against the defendant regarding the crimes of murder 

and attempted robbery, you must decide whether Brandon Crowder was an 

accomplice to those crimes. A person is an accomplice if he or she is subject 

to prosecution for the identical crime charged against the defendant. 

Someone is subject to prosecution if he or she personally committed the crime 

or if: [¶] 1. He or she knew of the criminal purpose of the person who 

committed the crime; [¶] AND [¶] 2. He or she intended to, and did in fact, 

aid, facilitate, promote, encourage, or instigate the commission of the crime.”

The instruction further stated that if the jury decides a witness is an 

accomplice, it could not convict based on his or her testimony alone and 

should view with caution any incriminating testimony by the accomplice.

In July 2009, the jury found Beaudreaux guilty of the first degree 

murder and attempted robbery of Drummond, and found the sentencing 

enhancement allegations against him to be true. The jury did not indicate 

whether it based its first degree murder verdict on a theory of malice murder 

or felony murder. But it did specifically find that he “personally and 

intentionally discharge[d] a firearm and caused great bodily injury and death 

to WAYNE DRUMMOND.”

The trial court sentenced Beaudreaux to a total state prison term of 50 

years to life, consisting of 25 years to life for first degree murder and 25 years 

to life under section 12022.53, subdivision (d).

5 On appeal, this court 

affirmed in Beaudreaux I. Our opinion there includes a lengthy summary of 

the facts on which the conviction is based. 

5 The court stayed its sentences for Beaudreaux’s attempted robbery 

conviction and the special allegation that accompanied that count. 
6

B. Beaudreaux’s First and Second Resentencing Petitions

After Senate Bill 1437 went into effect on January 1, 2019 (People v.

Strong (2022) 13 Cal.5th 698, 708 (Strong)), Beaudreaux, representing 

himself, filed a petition for resentencing and checked a box requesting 

appointment of counsel. Without appointing counsel or seeking further 

briefing, and based on the facts of the crime as recounted in Beaudreaux I, 

the trial court denied his petition for failure to set forth a prima facie case for 

relief. This court affirmed that denial by unpublished opinion in 

Beaudreaux II.

Eighteen months later, Beaudreaux, still representing himself, again

petitioned for resentencing under section 1172.6. He contended under 

penalty of perjury that he could not have been found guilty of murder under 

present law and requested, based on Lewis, that the court appoint counsel for 

him based on his facially sufficient petition. The trial court denied

Beaudreaux’s second petition in a written order without seeking any response 

from the People, and also denied Beaudreaux’s request for counsel. The court 

explained as follows: 

“The instant petition appears to be similar to defendant’s prior petition. 

Notwithstanding defendant’s actual reliance on Lewis, supra, 11 Cal.5th 952 

and apparent reliance on Senate Bill 775 . . . , neither authority appears to 

contemplate, let alone permit, giving defendants such as Beaudreaux a 

second or subsequent opportunity to litigate a claim that was decided against 

them and that decision is final. Put another way, Beaudreaux does not 

appear to be entitled to a second bite of the apple. [¶] For all these reasons, 

the [section 1172.6] petition filed on 14 March 2022 is DENIED.” 

Beaudreaux timely appealed.
7

II. DISCUSSION

A. The Senate Bill 1437 Resentencing Scheme

Senate Bill 1437 amended “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(f).) 

Among the amendments enacted by Senate Bill 1437 was the addition 

of section 188, subdivision (a)(3), providing that principals must act with 

express or implied malice in order to be convicted of murder, with the 

exception of the felony-murder rule as stated in an amended section 189. 

(Stats. 2018, ch. 1015, § 2.) In addition, section 189, subdivision (e), as 

amended, states that in order to be convicted of felony murder, a defendant

must be the actual killer; a person who, with the intent to kill, aided or

abetted the actual killer in the commission of the murder in the first degree;

or a major participant in the underlying felony who acted with reckless 

indifference to human life. (Stats. 2018, ch. 1015, § 3.)

Senate Bill 1437 also created a procedure for defendants already 

convicted of murder under the former law to obtain retroactive resentencing 

in the trial court. That procedure permits these defendants to petition for 

resentencing if they could not currently be convicted under the newly 

amended sections 188 and 189. It calls for a series of adjudication steps, 

starting with a determination of prima facie sufficiency under section 1172.6, 

subdivision (c); followed, where necessary, by an evidentiary hearing under 

section 1172.6 subdivision (d); and finally, where the petitioner prevails at 

the evidentiary hearing, by redesignation of the conviction at issue under

section 1172.6, subdivision (e). (Stats. 2018, ch. 1015, § 4.)
8

In People v. Duchine (2021) 60 Cal.App.5th 798 (Duchine), the panel 

explained the prima facie determination stage of this process as follows: 

“[T]he time for weighing and balancing and making findings on the ultimate 

issues arises at the evidentiary hearing stage rather than the prima facie 

stage, at least where the record is not dispositive on the factual issues. Thus, 

absent a record of conviction that conclusively establishes that the petitioner 

engaged in the requisite acts and had the requisite intent, the trial court 

should not question his evidence. The court may . . . consider the record of 

conviction at the prima facie stage, but may not evaluate the evidence, make 

credibility findings adverse to the petitioner, engage in factfinding or exercise 

discretion. [Citation.] The record should be consulted at the prima facie 

stage only to determine ‘readily ascertainable facts,’ such as the crime of 

conviction and findings on enhancements.” (Id. at p. 815.)

B. Refinement of the Section 1172.6 Procedural Framework

Beaudreaux’s first resentencing petition was denied by the trial court 

in January 2020, and we affirmed the denial order in Beaudreaux II. In 

affirming, we rejected contentions from Beaudreaux that, at the prima facie 

stage of the proceedings, the trial court erred by relying on facts stated in 

Beaudreaux I and by failing to hold a hearing before summarily denying 

relief. The California Supreme Court granted Beaudreaux’s petition for 

review, and ordered the appeal held in abeyance pending decision in Lewis. 

In July 2021, the Supreme Court issued its opinion in Lewis, and in 

December 2021, it dismissed Beaudreaux’s petition for review without 

disturbing our opinion in Beaudreaux II. Undaunted, Beaudreaux filed 

another resentencing petition. The present appeal is from the summary 

denial of that second petition. 

Beaudreaux is correct that, at least potentially, changes in the 

applicable law since the denial of his first resentencing petition could have 
9

some bearing on this appeal. Lewis focused specifically on the prima facie 

stage of the section 1172.6 process. Prior to Lewis, one line of authority in 

the courts of appeal parsed out this initial stage of section 1172.6 proceedings

into two separate steps and held that the prima facie sufficiency of a 

resentencing petition may be determined without appointing counsel, even 

where a petitioner requests representation. (Lewis, supra, 11 Cal.5th at 

pp. 961–962.) Resolving a split among the courts of appeal on this point, the 

Lewis court held that petitioners are entitled to the appointment of counsel 

upon the filing of a facially sufficient section 1172.6 resentencing petition,

and also that “only after the appointment of counsel and the opportunity for 

briefing” may the prima facie determination be made. (Lewis, at p. 957, 

original italics.) 

Lewis further held, consistent with the consensus view among the 

courts of appeal at the time, exemplified by Duchine, that “[t]he record of 

conviction will necessarily inform the trial court’s prima facie inquiry under 

[section 1172.6], allowing the court to distinguish petitions with potential 

merit from those that are clearly meritless. This is consistent with the 

statute’s overall purpose: to ensure that murder culpability is commensurate 

with a person’s actions, while also ensuring that clearly meritless petitions 

can be efficiently addressed as part of a single-step prima facie review 

process.” (Lewis, supra, 11 Cal.5th at p. 971.) Expounding on this point, the 

Lewis court addressed how to deal with facts stated in prior court of appeal 

opinions. It stated that “[a]ppellate opinions . . . are generally considered to 

be part of the record of conviction,” but that “the probative value of an 

appellate opinion is case specific, and ‘it is certainly correct that an appellate 

opinion might not supply all answers.’ ” (Id. at p. 972.)
10

Shortly after Lewis was decided, the Legislature passed, and the 

Governor signed, Senate Bill 775. Among Senate Bill 775’s many revisions to 

section 1172.6 are two that are especially pertinent here. First, Senate 

Bill 775 codifies the Lewis holding that, when a petitioner files a facially 

sufficient resentencing petition, counsel must be appointed upon request and 

briefing must be allowed before the petition may be dismissed at the prima 

facie stage of the proceedings. (Stats. 2021, ch. 551, §§ 1, 2.) Second, 

section 775 provides that, at the section 1172.6, subdivision (d)(3) evidentiary 

hearing to determine a petitioner’s entitlement to relief, “[t]he court may . . . 

consider the procedural history of the case recited in any prior appellate 

opinion.” (Stats. 2021, ch. 551, § 2.) 

By referring only to the “procedural history” stated in appellate 

opinions, Senate Bill 775 went a step further than Lewis did. A number of 

courts of appeal have held—and we agree—that “by allowing consideration of 

‘ “the procedural history” ’ in a prior appellate opinion, the Legislature 

intended to prohibit consideration of ‘the factual summar[y]’ ” in an appellate 

opinion. (People v. Bratton (2023) 95 Cal.App.5th 1100, 1113, original italics.) 

This constraint applies both at the prima facie determination stage under 

section 1172.6, subdivision (c), and the evidentiary hearing stage under 

section 1172.6, subdivision (d). (People v. Flores (2022) 76 Cal.App.5th 974, 

988 [if facts stated in appellate opinions “may not be considered at an 

evidentiary hearing to determine a petitioner’s ultimate eligibility for 

resentencing, we fail to see how such evidence could establish, as a matter of 

law, a petitioner’s ineligibility for resentencing at the prima facie stage”].) 

C. Contentions of the Parties

Arguing for reversal in this case, Beaudreaux asserts three errors. 

First, relying on People v. Farfan (2021) 71 Cal.App.5th 942 (Farfan), he 

argues the trial court erroneously treated his resentencing petition as a 
11

procedurally barred “successive petition.” Second, relying on Lewis and 

Senate Bill 775, he claims the trial court erred by ignoring his request for 

appointment of counsel and not allowing him to present briefing before 

entering an order of summary dismissal at the prima facie stage of the 

proceeding. Third, relying on Senate Bill 775, which prohibits the use of 

appellate factual recitals unless used for procedural background, he claims 

the trial court erroneously relied on substantive facts recited in 

Beaudreaux I. 

Taking a slightly different tack to the prima facie insufficiency of 

Beaudreaux’s resentencing petition than the trial court did, the People 

advance three contentions of their own. First, under the doctrine of issue 

preclusion, they claim Beaudreaux is bound by the 2009 jury findings that he 

personally used a firearm and inflicted great bodily harm, causing 

Drummond’s death. Second, under the doctrine of law of the case, they claim 

Beaudreaux is bound by our 2020 affirmance of his first resentencing petition

in Beaudreaux II. Third, whether or not Beaudreaux is procedurally barred, 

they claim any procedural error here was harmless because the record of 

conviction conclusively demonstrates he was Drummond’s actual killer. 

In evaluating these competing contentions, our standard of review is de 

novo. We independently review the denial of a resentencing petition at the 

prima facie stage, whether the denial is based on the issue preclusion 

doctrine (Cheveldave v. Tri Palms Unified Owners Assn. (2018) 

27 Cal.App.5th 1202, 1218–1219), the law of the case doctrine (Leider v. 

Lewis (2017) 2 Cal.5th 1121, 1125, 1127), or, more generally, failure by the 

petitioner to make a prima facie showing under section 1172.6 (People v. 

Harden (2022) 81 Cal.App.5th 45, 52). 
12

D. Analysis

We need not address the People’s law of the case argument because we 

conclude their issue preclusion argument is correct, which fully resolves the 

appeal on harmless error grounds. We “ ‘review the [trial court’s] ruling, not 

the court’s reasoning, and, if the ruling was correct on any ground, we 

affirm.’ ” (People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.) Here, while 

we agree with Beaudreaux that the trial court erred by failing to appoint 

counsel and by relying on substantive facts stated in Beaudreaux I, these 

procedural errors are statutory only, and thus, are governed by the usual 

harmless error for non-constitutional error. (Lewis, supra, 11 Cal.5th at 

pp. 972–974; see People v. Watson (1956) 46 Cal.2d 818, 836.) 

Applying the Watson harmless error standard, we ask whether it is 

reasonably probable that Beaudreaux’s petition would have survived 

summary dismissal if these procedural errors had not occurred. We think 

not. Beaudreaux is bound under the doctrine of issue preclusion by the jury 

findings that he personally and intentionally fired a weapon in the course of 

an attempted robbery that caused the death of Drummond. As we read those 

findings, the jury necessarily found Beaudreaux to be the actual killer. And 

because the record of conviction irrefutably defeats his allegation that he 

could not have been convicted of murder under current law, the court’s 

procedural errors in failing to appoint counsel and relying on substantive

facts recited in Beaudreaux I are harmless. 

1. Issue Preclusion 

“ ‘In general, whether a prior finding will be given conclusive effect in a 

later proceeding is governed by the doctrine of issue preclusion, also known 

as collateral estoppel.’ [Citation.] ‘The doctrine of collateral estoppel, or 

issue preclusion, is firmly embedded in both federal and California common 

law. It is grounded on the premise that “once an issue has been resolved in a 
13

prior proceeding, there is no further factfinding function to be performed.”

[Citation.] “Collateral estoppel . . . has the dual purpose of protecting 

litigants from the burden of relitigating an identical issue with the same 

party or his privy and of promoting judicial economy by preventing needless 

litigation.” ’ ” (People v. Curiel (2023) 15 Cal.5th 433, 451 (Curiel).)

“ ‘As traditionally understood and applied, issue preclusion bars 

relitigation of issues earlier decided “only if several threshold requirements 

are fulfilled. First, the issue sought to be precluded from relitigation must be 

identical to that decided in a former proceeding.” ’ ” (Curiel, supra, 

15 Cal.5th at p. 451.) The identical issue requirement “addresses whether 

‘identical factual allegations’ are at stake in the two proceedings.” (Lucido v.

Superior Court (1990) 51 Cal.3d 335, 342, italics added.) “ ‘[I]n determining 

whether the identity [of issues] requirement is satisfied, courts must be 

mindful of the need to distinguish “issues” from “legal theories.” ’ ” (Ayala v.

Dawson (2017) 13 Cal.App.5th 1319, 1327.)6

“ ‘ “Second, this issue must have been actually litigated in the former 

proceeding. Third, it must have been necessarily decided in the former 

proceeding. Fourth, the decision in the former proceeding must be final and 

6 Issue preclusion is one branch of the broader set of preclusionary 

rules known as res judicata. (See DKN Holdings LLC v. Faerber (2015) 

61 Cal.4th 813, 823–824.) “Although the doctrine [of res judicata] has ancient 

roots [citation], its contours and associated terminology have evolved over 

time. We now refer to ‘claim preclusion’ rather than ‘res judicata’ [citation], 

and use ‘issue preclusion’ in place of ‘direct or collateral estoppel.’ ” (Samara

v. Matar (2018) 5 Cal.5th 322, 326.) Both claim preclusion and issue 

preclusion must be distinguished from the related doctrine of law of the case 

preclusion, which has to do with the legal principles governing a particular 

case in subsequent proceedings following an appeal. (See People v. Stanley

(1995) 10 Cal.4th 764, 786; 9 Witkin, Cal. Procedure (6th ed. 2023) Appeal,

§ 480.) 
14

on the merits. Finally, the party against whom preclusion is sought must be 

the same as, or in privity with, the party to the former proceeding.” ’ 

[Citation.] ‘The party asserting collateral estoppel bears the burden of 

establishing these requirements.’ ” (Curiel, supra, 15 Cal.5th at pp. 451–452; 

see Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.) And “ ‘[i]n 

considering whether these [five] criteria have been met, courts look carefully 

at the entire record from the prior proceeding, including the pleadings, the 

evidence, the jury instructions, and any special jury findings or verdicts.’ ” 

(Curiel, at p. 452.)

Beaudreaux makes no real effort to convince us that some or all of the 

threshold requirements for application of issue preclusion are missing here. 

That seems understandable. The evidentiary record of the trial is not before 

us, but we have the legal framework that governed the trial in the form of the 

jury instructions and the adjudicated results of the trial in the form of the 

jury’s verdicts and findings. Having considered the defense Beaudreaux 

offered, weighed the evidence, and applied the trial court’s instructions, the 

jury found that he “personally and intentionally discharge[d] a firearm and 

caused great bodily injury and death to WAYNE DRUMMOND.” 

As the Supreme Court has now twice pointed out, “a relevant jury 

finding is generally preclusive in section 1172.6 proceedings, i.e., it ‘ordinarily 

establish[es] a defendant’s ineligibility for resentencing under Senate 

Bill 1437 and thus preclude[s] the defendant from making a prima facie case 

for relief.’ ” (Curiel, supra, 15 Cal.5th at pp. 453–454; quoting People v.

Strong, supra, 13 Cal.5th at p. 710.) “[I]t is difficult to foresee a situation in 

which a relevant jury finding, embodied in a final criminal judgment, would 

not meet the traditional elements of issue preclusion” in this setting. (Curiel, 

at p. 454.) 
15

When we compare the underlying prosecution of Beaudreaux to the 

section 1172.6 proceedings, we see that the parties are the same, and the 

contested factual issues actually and necessarily decided within each 

proceeding are identical. Beaudreaux’s denial of responsibility for 

Drummond’s death put in issue his role in Drummond’s killing, and he had 

the incentive and opportunity at trial to claim that he did not personally 

shoot Drummond. (See Curiel, supra, 15 Cal.5th at pp. 452–453, 459 [“Curiel 

contends his intent to kill was not actually litigated because his counsel did 

not specifically address the [finding later claimed to be binding]. But this 

element of issue preclusion requires only ‘ “the opportunity to litigate . . . not 

whether the litigant availed himself or herself of the opportunity.” ’ ”].) We 

therefore conclude all the threshold requirements for application of issue 

preclusion have been met here.

2. The Equitable Exception for Intervening Changes in the Law

Rather than contest the applicability of issue preclusion as a threshold 

matter, Beaudreaux claims he is entitled to invoke the “ ‘well-settled 

equitable exception’ ” to issue preclusion for circumstances where there has 

been some significant change in the law since the factual findings claimed to 

be binding were made. (Curiel, supra, 15 Cal.5th at p. 454, quoting Strong, 

supra, 13 Cal. 5th at p. 716.) 

For this proposition, Beaudreaux relies on Farfan, supra, 

71 Cal.App.5th 942. In that case, the trial court summarily denied a first 

section 1172.6 resentencing petition without appointing counsel on the 

ground that “the jury’s true finding on [a robbery murder] special 

circumstance allegation preclude[d] relief under section [1172.6] as a matter 

of law.” (Farfan, at p. 946.) After the denial was affirmed on appeal, the 

Supreme Court decided Lewis and a split in authority among the Courts of 

Appeal developed, with some courts holding that prior special circumstances 
16

findings are not binding at the prima facie stage of a resentencing 

proceeding. (Id. at p. 949.) Despite these interim developments in the law,

the trial court summarily denied a second section 1172.6 petition, as in this 

case, without appointing counsel. (Farfan, at p. 947.) 

On appeal, the People unsuccessfully attempted to defend the second 

summary denial by analogy to the rule against successive habeas corpus 

petitions. The Farfan court rejected the analogy, citing In re Martinez (2017)

3 Cal.5th 1216), a case in which the Supreme Court declined to apply the rule 

against successive habeas corpus petitions where there has been an interim

retroactive change in the governing law. (Farfan, supra, 71 Cal.App.5th at 

p. 951.) According to the Farfan court, “not only are the changes to the law 

effected by Senate Bill No. 1437 themselves retroactive, but judicial 

interpretations of [section 1172.6] may afford a petitioner grounds for 

claiming eligibility for relief under the statute that were not previously 

available under other judicial interpretations. Here, because [appellant

Farfan’s] 2020 petition was based on new authority which challenged the 

primary ground for the superior court’s summary denial of his 2019 petition”

(ibid.)—the line of cases holding that prior special circumstances findings are 

binding at the prima facie stage of a resentencing proceeding—“the 2020 

petition was not procedurally barred as a successive petition” (ibid.).

Putting to one side the analytical muddiness created by the term 

“successive petition” in this context,

7 we read Farfan as a straightforward 

7 In their briefs, both Beaudreaux and the People refer somewhat 

loosely to the bar on “successive petitions” in discussing issue preclusion, 

apparently borrowing the concept from Farfan. But the appellate panel there 

used this phrase to describe the People’s unsuccessful argument for 

preclusion in Farfan. (Farfan, supra, 71 Cal.App.5th at p. 946.) We do not 

read its opinion to suggest that the bar against successive habeas corpus 
17

application of Strong, supra, 13 Cal.5th at p. 703, which sided with Court of 

Appeal cases holding that felony-murder special-circumstances findings 

predating People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark

(2016) 63 Cal.4th 522 (Clark) are not issue preclusive in later section 1172.6

resentencing proceedings. Banks and Clark brought about a change in the 

governing law that undermined confidence in felony-murder specialcircumstances findings made under prior law, thus warranting invocation of 

the equitable exception to issue preclusion for intervening changes in the law. 

But the Strong court made clear that not every change in the law will 

“ ‘result in a manifestly inequitable administration of the laws’ ” that 

warrants a departure from the ordinary rule of issue preclusion. (Strong, at 

p. 717.)

As the Supreme Court later indicated in Curiel, the test is whether 

there has been a change so significant that it would result in a different 

factual finding on the issue claimed to be foreclosed had the law as it exists 

petitions, a rule with many complexities particular to the law of habeas 

corpus (see In re Reno (2012) 55 Cal.4th 428, 449–453; In re Clark (1993) 

5 Cal.4th 750, 767–770; cf. In re Friend (2021) 11 Cal.5th 720, 728, 737

[construing a statute that codifies the bar against successive habeas petitions 

in capital cases]), may be equated with the doctrine of issue preclusion as it 

applies in section 1172.6 proceedings.

It seems to us that the potential preclusive bar facing a petitioner who 

brings more than one section 1172.6 petition attacking the same conviction is 

better analyzed under the rubric of claim preclusion, not by borrowing the 

prohibition on successive petitions from the law of habeas corpus. Indeed, 

although the trial court cited no authority and did not specify precisely what 

preclusionary doctrine it was applying, the gist of its order appears to be 

framed in terms of claim preclusion. But since no claim preclusion argument 

has been made on appeal, and since the narrower doctrine of issue preclusion 

is sufficient for affirmance on this record, we have no occasion to address 

whether the claim preclusion branch of res judicata has any applicability in 

this context. 
18

today governed when the finding was made. (Curiel, supra, 15 Cal.5th at 

p. 458.) Beaudreaux points to no change in the law specific to the findings 

that he was armed, discharged his gun, and not only caused great bodily 

injury to another person, but the death of that person. Instead, he argues 

more generally that, “under the felony murder concepts in place when 

appellant was tried prior to the changes to section 189, [his] conviction was 

certain once the jury believed that he had been involved in the armed robbery 

involving Drummond.” “Under those principles,” he contends, “it did not 

matter if [Beaudreaux] was the actual shooter, or if the gun discharged 

accidentally while struggling for the gun with Drummond, or Drummond 

discharged the weapon himself while trying to get a hold of it.”

We see two problems with this line of argument. First, Curiel squarely 

rejects the contention that section 1172.6 petitioners may avoid prior jury 

findings simply by pointing to the fact that Senate Bill 1437 retroactively 

changed the law of murder generally. (Curiel, supra, 15 Cal.5th at pp. 459–

460. [“Curiel argues that the enactment of Senate Bill 1437 itself was such a 

significant and unforeseeable change in the law that it would be inequitable 

to apply issue preclusion to jury findings in his underlying trial. This 

argument is plainly foreclosed by our opinion in Strong.”].) If such a broadbrush approach were appropriate, the equitable exception for intervening 

changes in the law would swallow the doctrine of issue preclusion in

section 1172.6 proceedings entirely, rendering issue preclusion wholly 

inoperative in that context. The Curiel court made clear that that is an 

overreading of Strong. 

Second, even assuming hypothetically that Beaudreaux could produce 

evidence of the accidental discharge and self-inflicted wound scenarios he 

posits might have occurred here, the law of felony murder has not changed in 
19

a manner that would lead to a different result on those supposed facts, even if 

changes in the law of murder generally could be a driving consideration. We 

still have the longstanding rule that a defendant is guilty of felony murder if, 

while intending to commit a qualifying felony, he personally performs an act 

that causes death, regardless of whether the fatal act was intentional or 

accidental. That is because the mens rea from the qualifying felony supplies 

the requisite mens rea for murder. Senate Bill 1437 brought about a number 

of changes in the substantive law of murder, but not on this basic point. 

“Except for felony murder, section 188(a)(3) makes personally possessing 

malice aforethought a necessary element of murder.” (People v. Gentile

(2020) 10 Cal.5th 830, 846, italics added.) 

In People v. Coefield (1951) 37 Cal.2d 865, for example, a robber struck 

a store clerk in the head with his pistol to “ ‘knock[] him out,’ ” but the gun 

discharged, killing the man. (Id. at pp. 867–868.) The Supreme Court held 

that section 189 applies to any killing during the commission of a robbery 

“regardless of whether it was intentional or accidental.” (Coefield, at p. 868.) 

Other examples abound. (See, e.g., People v. Billa (2003) 31 Cal.4th 1064, 

1068 [“felony-murder rule covers ‘a variety of unintended homicides resulting 

from reckless behavior, or ordinary negligence, or pure accident’ ”]; see also 

People v. Washington (1965) 62 Cal.2d 777, 781 [“inadvertent or accidental 

killings are first degree murders when committed by felons in the 

perpetration of robbery”]; People v. Garcia (2020) 46 Cal.App.5th 123, 152.)

These felony-murder cases are still good law. Beaudreaux has pointed to 

nothing in the felony-murder instruction given in his case that was 

superseded or invalidated by Senate Bill 1437.

3. The “Actual Killer” Element of Section 189, Subdivision (e)

Even where the threshold requirements for issue preclusion are met (as 

they are here), and even where we conclude the equitable exception to issue 
20

preclusion does not apply (which is what we have concluded), that does not 

end our inquiry into the sufficiency of Beaudreaux’s resentencing petition for 

purpose of section 1172.6, subdivision (c). (Curiel, supra, 15 Cal.5th at 

p. 463.) There is one more step to the analysis. Having “already determined 

that the jury’s factual findings should be given preclusive effect” (id. at 

p. 470), we must still “identify what those factual findings are and how they 

relate to the elements of murder under a valid theory” today (ibid.).

Here, citing People v. Offley (2020) 48 Cal.App.5th 588 (Offley), 

Beaudreaux’s first line of argument is that the limited record of conviction 

before us cannot support a valid conviction of murder because of the 

possibility the jury found that a third person (i.e., Crowder) shot Drummond

and decided to convict Beaudreaux without making the necessary finding of 

malice aforethought on his part. In Offley, the defendant was convicted as a 

conspirator to a gang murder under a natural and probable consequences 

theory (id. at p. 593), which was problematic because “the natural and 

probable consequences doctrine can no longer support a murder conviction” 

(id. at p. 595). In later section 1172.6 resentencing proceedings, the People 

relied on a section 12022.53, subdivision (d) jury finding that defendant 

Offley discharged a firearm in the course of the offense and argued that that 

made him liable for murder under current law. (Offley, at p. 598.) 

Unpersuaded, the Court of Appeal reversed a summary dismissal because of 

the possibility that the jury convicted Offley on a natural and probable 

consequences theory based on his mere participation in a murder, without 

necessarily finding he acted with the requisite mens rea. (Id. at p. 600.)

We doubt neither the soundness of the Offley court’s reasoning nor 

Beaudreaux’s legal premise in relying on it. (See In re Ferrell (2023) 

14 Cal.5th 593, 604–608) [granting habeas corpus relief, citing Offley
21

favorably, and holding that a jury’s section 12022.53, subdivision (d) finding 

did not supply the missing mens rea element necessary to cure the defect in a 

second degree felony-murder conviction rendered pursuant to an instruction 

later invalidated in People v. Chun (2009) 45 Cal.4th 1172].) But the 

conclusion Beaudreaux draws from that premise is incorrect on the record

before us. Offley is inapposite because no natural and probable consequences 

instruction was given here. The Offley court was careful to recognize this key 

distinction, commenting that “if the jury did not receive an instruction on the 

natural and probable consequences doctrine, the jury could not have 

convicted the defendant on that basis, and the petition should be summarily 

denied.” (Offley, supra, 48 Cal.App.5th at p. 599.)

Beaudreaux’s case turns instead on whether he could be validly 

convicted of robbery felony murder today under section 189, subdivision (a), 

which in turn depends on whether his jury found he was Drummond’s actual 

killer for purposes of section 189, subdivision (e). We think it unavoidable 

that that is precisely what the record shows. In an effort to persuade us to 

the contrary, Beaudreaux offers a second line of argument: He claims a 

section 12022.53, subdivision (d), firearm use finding does not necessarily 

establish that he personally caused Drummond’s death. This is a variation 

on the Offley rationale, adapted to causation rather than mens rea. Focusing 

here on Crowder’s possible physical involvement in Drummond’s demise, 

Beaudreaux claims it is impossible on this murky record to determine 

whether he was convicted of murder for committing an act that may have led 

indirectly to Drummond’s death, but for which the jury returned a murder 

conviction under some causation theory short of personal commission of the 

murder.
22

Employing similar logic, the court in People v. Lopez (2022) 

78 Cal.App.5th 1, 16–20 (Lopez) reversed a section 1172.6 summary 

dismissal. But that case, too, is distinguishable because of the particular jury 

instructions given there. The defendant in Lopez was convicted of first 

degree murder with a robbery felony-murder special-circumstances finding

and sentenced to life without the possibility of parole. (Lopez, at p. 4.) The 

victim was found in his apartment naked and bludgeoned to death. (Id. at

p. 6.) The defendant testified he had been to the victim’s apartment with his 

“friend and drug dealer,” who he implied was the actual killer. (Id. at p. 9.) 

Though the defendant admitted having been in the victim’s apartment, he 

denied killing him or participating in any robbery or even entering the 

bedroom in which the body was later found. (Ibid.) The prosecution argued

the defendant was the actual killer and committed the robbery alone, but its 

case for that theory was largely circumstantial. (Id. at p. 15.) 

Against this evidentiary backdrop, the court instructed the jury on the 

legal concept of proximate causation as follows: “ ‘An act causes death if the 

death is the direct, natural, and probable consequence of the act and the 

death would not have happened without the act. A natural and probable 

consequence is one that a reasonable person would know is likely to happen if 

nothing unusual intervenes.’ ” (Lopez, supra, 78 Cal.App.5th at p. 16.) The 

jury found the defendant guilty as charged (id. at p. 10), and many years 

later he filed a section 1172.6 resentencing petition, which was summarily 

denied for failure to make a prima facie case for relief (Lopez, at p. 11). The 

Court of Appeal reversed, pointing out that the jury could have believed some 

but not all of the defendant’s testimony. (Id. at pp. 19–20.) In light of the 

proximate cause instruction, the court concluded, the jury could have believed 

a second assailant was in the apartment but concluded the defendant was 
23

actively involved only in the robbery, which justified convicting him of felony 

murder but without any need to find he was the actual killer. (Id. at p. 20.) 

Under the jury instructions in Beaudreaux’s case, by contrast, 

causation was an element the jury had to find in order to convict him of 

murder—and it did so find—but there was no amplifying instruction 

permitting it to conclude that the instructional phrase “caused the death of 

another person” meant anything more than that Beaudreaux shot 

Drummond to death, in accord with the plain meaning of those words. 

Courts have a sua sponte duty to instruct on proximate causation, which of 

course has a specialized legal meaning. (People v. Bernhardt (1963) 

222 Cal.App.2d 567, 591; Judicial Council of Cal., Crim. Jury Instns. (2012) 

Bench Notes to CALCRIM No. 240.) But this sua sponte duty kicks in only 

where the evidence justifies giving such an instruction. Here, we must 

assume the court understood its instructional obligations and saw no 

evidence to instruct on the legal meaning of causation. 

Nor was there an aiding and abetting instruction allowing the jury to 

convict Beaudreaux as an accomplice to the conduct of Crowder. It is true 

that an aiding and abetting charge was indirectly given in the form of the 

accomplice witness instruction pertaining to Crowder’s testimony. It is also 

true that there is a sentence in this instruction stating that a witness may be 

“subject to prosecution” if he either “personally committed” the charged crime 

or was “an accomplice to [it].” But we do not think any reasonable juror

would have cherry-picked the reference to “personal” commission of a crime

in an accomplice witness instruction designed to provide guidance for the 

evaluation of Crowder’s credibility and, based on that guidance, concluded

Crowder personally shot Drummond, while circuitously voting to convict

Beaudreaux as an accomplice without having to consider his mental state.
24

The possibility the accomplice witness instruction may have been 

misread in this manner strikes us as highly improbable. By its terms, the 

instruction cannot reasonably be read to invite the jury to consider whether 

Crowder shot Drummond. Quite to the contrary, the whole point of the 

instruction—which is reflected in its title, “Accomplice Testimony Must be 

Corroborated: Dispute Whether Witness Is Accomplice” (italics added)—was 

to focus the jury on Crowder’s possible liability as an aider and abettor, not 

on the possibility that he personally was a triggerman. After taking the 

entirety of the record of conviction into account, the dispositive consideration 

for us is that, while Crowder was charged as a codefendant with murder, he 

was never charged with discharging a gun or inflicting great bodily injury on 

Drummond. Only one of two originally named defendants was charged, 

convicted, and found to be the fatal shooter in this case, and that defendant 

was Beaudreaux. 

Accordingly, reading all the charges, the instructions, the verdicts, and 

the findings as a whole, we see no legal route Beaudreaux’s jury could have 

taken to convict him without finding he was Drummond’s actual killer. As 

our Fourth District, Division One colleagues stated in affirming the summary 

denial of resentencing relief for a defendant seeking resentencing relief in 

similar circumstances: “Without weighing conflicting evidence or making 

credibility determinations, the record of conviction irrefutably establishes as 

a matter of law that the jury determined [the defendant] was the actual 

killer. The [jury’s] . . . only path to convicting [the defendant] of first degree 

felony murder with special circumstances and a personal-infliction-of-greatbodily-injury enhancement was based on a finding she actually killed [the 

victim].” (People v. Harden, supra, 81 Cal.App.5th at p. 56.)
25

We conclude no reasonable juror who found that Beaudreaux

personally discharged his gun and caused great bodily injury and death

might have believed Crowder personally did the same thing, with 

Beaudreaux only indirectly involved in the fatal act, but liable for it 

nonetheless. Stated in terms framed by the pivotal legal issue here, we 

believe it would have been impossible on this record for a jury to have made 

the findings it did without finding that Beaudreaux was Drummond’s actual 

killer. (Cf. In re Lopez (2023) 14 Cal.5th 562, 591–592 [harmlessness of 

alternative-theory error in murder verdict because of missing element in jury 

instructions on murder may be assessed in light of whether other jury 

findings made it impossible to find guilt without also finding the missing 

element].) As a result, the trial court’s procedural errors in ordering the 

summary dismissal of Beaudreaux’s resentencing petition at the prima facie 

stage of these section 1172.6 proceedings are harmless. 

III. DISPOSITION

The order dismissing Beaudreaux’s second petition for section 1172.6 

relief is affirmed. 

STREETER, J. 

WE CONCUR:

BROWN, P. J.

GOLDMAN, J.
People v. Beaudreaux – A166001

Trial Court: Superior Court of California, County of Alameda

Trial Judge: Hon. Morris D. Jacobson

Counsel: Janet J. Gray, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Assistant Attorney General, Jeffrey M. Laurence, Senior 

Assistant Attorney General, Bridget Billeter, Supervising 

Deputy Attorney General, and Masha A. Dabiza, Deputy 

Attorney General, for Plaintiff and Respondent.