1

Filed 4/ 1 7 /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

. A 1 6 6001 ( Alameda County Super

. C t. No. 160022B )

ORDER MODIFYING OPIN I ON; 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 abett o r, 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. Brown4

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 Gene ral, for Plaintiff and Respondent.1

Filed 3/ 28 / 24 (unmodified op inion)

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

. A 16 6001
( Alameda County Super

. C t. 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 Code 3 section 117 2.6

. In the resentencing proceeding s on his second petition , t he trial court ruled that the order denying relief on his first petition , an order we affirmed in 202 0 , fo recloses relief. Beaudreaux appeals a gain , 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 117 2

. 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, i n 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 th ose errors were harmless.
T he dispositive question here is this. B ased on the record of conviction before us

— which consist s of the jury instruction s in Beaudreaux ’s 2009 trial , the jury’s verdict s , and the findings accompanying th e verdict s

— must w e conclude that Beaudreaux was convicted as Drummond’s actual killer ? We think so

. Th e record here is limited, but it is sufficient to r efute conclusively Beaudreaux’s attempt to allege entitlement to section 1172.6 relief

. I. BACKGROUND
T he pertinent record of conviction consists of a clerk’s transcript , the trial court minutes, and the jury instructions and verdict s 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 contain s (1) the 20 20 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 s entencing enhancement allegations : against Crowder , u nder section 12022, subdivision (a)(1) , that during the commission of the crime “ a principal ” was armed with a firearm ; and against Beaudreaux , under section s 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 o nly 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 a s 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 of fense 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 testif ying on behalf of the prosecutio n. The jury was instruct ed in relevant part on malice murder, felony
murder , and attempted robbery , including the instruction that “ [t] he4

defendant has been prosecuted for first degree murder under two theories: (1) The murder was willful, deliberate and premeditated; and (2) F elony murder.” The instruction on malice murder state d : “ 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

pe rson . [¶] AND [¶] 2. When the defendant acted , he had a state of mind
called malice aforethought.” (Italics added.) The felony

- murder instruction stat ed : “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 allegation s in accordance with the following gu idance : “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 t hat the defendant’s act caused the death of a

person .” (Italics added.)
T he re was a jury instruction addressing Crowder’s testimony , which

state d as follows: “ B efore you may consider the testimony of Brandon5

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 state d that if the jury decides a witness is an accomplice, it c ould 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 s entencing
enhancement allegation s against him to be true. The jury did not indicate whether it based it s 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 caus ed great bodily injury and death to WAYNE DRUMMOND.”
The trial court sentenced Beaudreaux to a total s tate 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 , t his court affirmed in Beaudre aux I

. Our opinion there in cludes 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 Petition s A fter 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 chec ked a box requesting appointment of counsel

. W ithout appointing counsel or seeking further briefing , and based on the facts of the crime as recounted in Beaudreaux I , the trial court d enied 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 117 2

. 6 . He c ontended 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 Beaudreau x’s second petition in a written order without seeking any response from the People, and also denied Beaudreaux’s request for counsel

. T he court explained as follows : “The instan t 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

appe ar 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 appeal ed

.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) , provid ing 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, aide d or abett ed 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.) S enate B ill 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 ad judication 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

I n People v. Duchine (2021) 60 Cal.App.5th 798 ( Duchine ) , the panel explained th e 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
dis cretion. [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. 81 5 .)
B. Refinement of the Section 1172.6 Procedural Framework Beaudreaux ’s first resentencing petition was d e nied by the trial court
in January 2020 , and we affirmed the denial order in Beaudreaux II

. In affirm ing, we rejected contentions from Be a udreaux 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 Be audreaux’s petition for review, and order ed 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 I I

. Undaunted, B eaud reaux filed
another resentencing petition . T h e 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 have9

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 th is 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

p p. 961

– 962.) Resolving a split among the courts of appeal on this point , t he
Lewis c ourt 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 p ertinen t here. First, Senate
Bill 775 codifie s the Lewis holding that , whe n 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 “ b y 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 constrain t applies both at the prima facie determination sta ge 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 t hree errors. First, relying on Pe ople v. Farfan (2021) 71 Cal.App.5 th 942 ( Farfan ) , he

argues the trial court erroneously treated his resentencing petition as a11

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
Be audreaux I

. Taking a slightly different tack to the prima facie in sufficiency of Beaudreaux’s resentencing petition than the trial court did, t he 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 Beaudre a ux is procedurally barred , they claim any pro cedural error here was harmless because t he record of

con viction 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 117 2.6 ( People v. Hard e n ( 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 t heir 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, w hile we agree with Beaudreaux that the trial court erred by failing to appoint counsel and by relying on substantive facts stated in Beaudreaux I , the se procedural errors are statutory only , and thus , are governed by the usual harmless error for non
- const it utional 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

s ummar y dismissal if the se procedural error s had not occurred

. We think

not. Beaudreaux i s 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 caus ed the death of Drummond

. As we read those findings , the jury necessarily found Beaudreaux to be the actual killer

. And
b ecause th e record of conviction irrefutably defeat s 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. ’ [Ci tation.] ‘ 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 a13

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. (S ee 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. Proc edure ( 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 p p

. 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. 45 2 .)
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, t he jury found that h e “personally and intentionally discharge[d] a firearm and

caus ed great bodily injury and death to WAYNE DRUMMOND.” As the Supreme C ourt 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.5 th at p p

. 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. 45 4 .)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 a ctually and necessarily decided within each proceeding are identical. B ea udreaux ’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.5 th at p p

. 452

– 453, 45 9 [“ 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 al l the threshold requirements for application of issue preclusion have been met here.
2. The Equitable Exception for Intervening Changes in the Law Rather than conte s t the applicability of issue preclusion as a threshold matter, Beaudreaux claims he is entitle d 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. 45 4, quoting St rong , supra , 13 Cal. 5 th 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 with out appointing counsel on the ground that “ the jury ’ s true finding on [a robbery murder] special circumstance allegation preclude [d] relief under section [ 117 2

. 6] as a matter of law

. ” ( Farfan , at p. 946.) After the denial was affirmed on appeal , the Supreme Court deci ded Lewis and a split in authority among the Courts of Appeal developed , with some courts holding th at prior special circumstances16

findings are not binding at the prima facie stage of a resentencing proceeding. ( Id

. at p. 949. ) D espite the se interim developments in the law , the trial court summarily denied a second section 11 72.6 petition , as in this

case, without appointing counsel

. ( Farfan , at p. 947.) On appeal, t he People unsuccessfully attempted to defend the second summary deni al by analogy to the rule again st successive habeas corpus petitions

. The Farfan court rejected the analogy , c iting In re Martinez (2017)
3 Cal.5 th 1216) , a case in which the Supreme Court declined to apply the rule against successive habeas corpus petition s where there has been a n interim retroactive change in the governing law

. ( Farfan , supra , 71 Cal.App.5 th 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 117 2

. 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 circumstance s findings are binding at the prima facie stage of a resentencing proceeding

— “ the 2020 petition was not procedurally barred as a successive petition” ( i bid .)

. Putting to one side the analytical muddiness created by the term “successive petition ” in th is context , 7 we read Farfan as a str aightforward

7 In their briefs, b oth Beaudreaux and the People refer somewhat loosely to the bar on “successive petition s ” in discussi ng issue preclusion , apparently borrowing the concept from Farfan

. But t he appellate panel there used th is phrase to describe the People ’s unsuccessful argument for preclusion in Farfan

. ( Farfan , supra , 71 Cal.App.5 th at p. 946

. ) W e do not read it s opinion to suggest that the bar against successive habeas corpus17

application of Strong , supra , 13 Cal.5th at p. 703, which sided with Court of Appeal cases holding that felony

- murder special

- circumstances findings predat ing People v. Banks (2015) 61 Cal.4th 78 8 ( 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 special

circumstances findings made under prior law, thus warranting invocation of the equitable exception to issue preclusion for intervening changes in the law.
But t he 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 prec lusion

. ( 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

petition s , a rul e with many complexities particular to the law of habeas corpus ( s ee 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 petition s from the law of habeas corpus. Indeed, although the trial court cite d no authority and d id not specify precisely what preclusionary doctrine it was applying, the gist of its order appears to be framed in terms of claim preclusion. But s ince n o 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 th e cla i m preclusion branch of res judicata has any applicability in this context

.18

today governed when the finding was made

. ( Curiel , supra , 15 Cal.5 th 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 , b ut the death of that person

. Instead, h e argues more generally that, “ u nder 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 [Beau dreaux] 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 reject s the contention that s ection 1172.6 petitioner s 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 p p

. 45 9

– 4 60

. [“ 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 broad

brush app roach were appropr iate , the equitable exception for intervening change s in the law would swallow the doctrine of issue preclusion in
section 1172.6 proceeding s entirely , rendering issue preclusion wholly inoperative in that context. The Curiel court made clear that that is an

over reading of Strong

. Second , even a ssuming hypothetically that Beaudreaux could produce evidence of the accidental discharge and self

- inflicted wo und scenario s he posits might have occurred here , the law of felony murder has not changed in19

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 th is 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.)
T hese 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 invalid at ed 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 issue20

preclusion does not apply ( which is what w e have conclude d ) , that does not

e nd our inquiry into the sufficiency of Beaudreaux’s resente ncing 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 ( i bi d .). 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 convi c t Beaudreaux without making the necessary finding of malice aforethought on his part

. I n Offley , the defendant was convicted as a conspirator to a gang murder under a natural and probable consequences theory ( i d

. at p. 59 3) , 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, t he 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 C ourt of Appeal revers ed a summary dismissal b ecause 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 n or Beaudreaux’s legal premise in relying on it

. ( See In re Ferrell (2023)
14 Cal.5th 593, 604

– 608) [granting habeas corpus relief, citing Offley21

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 th e record before us

. Offley is inapposite because n o natural and probabl e consequences instruction was given here. T he Offley court was careful to recognize th is 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 a n 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 th at he personally caused Drummond’s death

. This is a variation
on the Offley rationa l e, 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 h e w as convicted of murder for committing an act t hat may have led indirectly to Drummond’s death , but for which the jury returned a murder
convict ion under some causation theory short of personal commission of the
murder

.22

Employing similar logic , t he c ourt in People v. Lopez (2022)
78 Cal.App.5th 1, 16

– 20 ( Lopez ) reversed a section 1172.6 summary
dismissal

. But th at 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.) T he 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 admitt ed having been in the victim’s apartment, he denied killing him or participat ing in any robbery or even enter ing the bedroom in which the body was later found. ( Ibid .) T he 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 , t he court instructed the jury on the legal concept of proximate caus a tion 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 resente ncing petition, which was summarily
d enied for failure to make a prima facie case for relief ( Lopez , at p. 11)

. T he 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.) I n 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 was23

actively involved only in the robbery, which justified convict ing him of felony
murder but without any need to find he was t he 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 o f
murder

— and it did so find

— but there was no amplifying ins t ruction

p ermitting it to conclude that the instructional phrase “caused the death of
another person” meant anything more th an that Beaudreaux shot Drummond to death , in accord with the p lain meaning of those words

. C ourts have a sua spont e 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 C ouncil 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, w e must

assume the court understood its instructional obligations an d 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

. I t 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 t his instruction stating that a witness may be

“ subject to pros ec u tion ” i f he either “person ally committed ” the charged crime

or was “ an accomplice to [ it ]

. ” But we do not think any reasonable jur or would have cherry

- picked th e reference to “personal” commission of a crime
in an accomplice witness instruction designed to provide guidance for the evaluati on of Crowder’s credibility and , based on that guidance , con clude d Crowder personally shot Drummond , while circuitously voting to convict Beaudreaux as an a ccomplice without having to consider his mental state.24

Th e possibility the accomplice witness instruction may have been misread in this manner strikes u s as highly improbable. By its terms, the
instruction cannot reasonably be read to invite the jury to consider whether Crowder shot Drummond . Q uite 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 trigger man

. A fter taking the entirety of the record of conviction into account , t he 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 Beaudre a ux. Accordingly, r eading 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: “ W ithout 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

- great

bodily

- injury enhancement was based on a finding she actually killed [the victim]

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

W e conclude n o reasonable jur or who found that Beaudreaux personally discharged his gun and caus ed great bodily injury and death might have believed Crowder personally did the same thing, with
Be audreaux only indirectly involved in the fatal act , but liable for it
nonethel e ss

. 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, 5 91

– 592 [harmlessness of
alternative

- theory error in murder verdict because of missing element in jury instructions on murder m ay be assessed in light of whether other jury findings made it impossible to find guilt without also finding the missing
element ]. ) As a result, t he trial court’s procedural errors in ordering the summary d ismissal 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 Gene ral, for Plaintiff and Respondent.