Filed 5/26/21 P. v. Riley CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

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 This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

SAID RILEY,

Defendant and Appellant.

 B298450

 (Los Angeles County

 Super. Ct. No. NA079324)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Judith L. Meyer, Judge. Affirmed.

Caneel C. Fraser, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Michael R. Johnsen, Supervising 

Deputy Attorney General, and Charles S. Lee, Deputy Attorney 

General, for Plaintiff and Respondent.
2

In 2011, a jury convicted defendant and appellant Said 

Riley (defendant) on two counts of murder (one first degree 

murder and the other second degree) and two counts of robbery. 

The jury found true a multiple murder special circumstance, 

which resulted in a life without possibility of parole sentence on 

the first degree murder conviction. After enactment of Senate 

Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), 

defendant filed a petition for resentencing pursuant to Penal 

Code section 1170.95.1 We consider whether the trial court 

correctly concluded the jury did not rely on the felony murder 

rule or the natural and probable consequences doctrine in 

convicting defendant—and thus, that defendant was ineligible for 

resentencing as a matter of law.

I. BACKGROUND

Defendant filed a motion in this court asking us to 

judicially notice the appellate opinion resolving his (and his codefendant Eddie Betancourt’s) direct appeal: People v. Betancourt 

et al. (Mar. 11, 2013, B237204) [nonpub. opn.] (Betancourt). We 

grant the motion and rely on the prior opinion in describing the 

facts of the murders and in certain aspects of our analysis that 

follows our summary of the facts. (See generally People v. Lewis

(2020) 43 Cal.App.5th 1128, 1137-1139 & fn. 7, review granted 

Mar. 18, 2020, S260598; People v. Verdugo (2020) 44 Cal.App.5th 

320, 335, review granted Mar. 18, 2020, S260493 (Verdugo).)

Early on the morning of April 24, 2008, officers from the 

Los Angeles Police Department responded to a 911 call of shots 

1 Undesignated statutory references that follow are to the

Penal Code.
3

fired in an alley. When the officers arrived at the scene, they 

found the body of Lauri Gilbert (Gilbert) in the front passenger 

seat of a two-door Acura Legend. She had been shot three times 

in the head. Gilbert was pregnant at the time she was shot, and 

the fetus died as a result of her death. 

James Davis (Davis), who owned the Acura and who had 

made the 911 call, told police that he had been part of a group 

that had gone looking to buy drugs. In addition to Davis, the 

group included defendant, Eddie Betancourt (Betancourt), and

victim Gilbert. Davis drove the group to an alley behind a 

library, where Gilbert got out of the car and disappeared down 

the alley. When she returned, the drugs she purchased were 

weighed and found to be “short” (i.e., less than what the group 

had paid to receive), a fact that appeared to make Betancourt and 

defendant upset. 

After trying but failing to find the seller of the drugs, Davis 

drove back to Gilbert’s apartment and parked in the alley. Davis, 

Betancourt, and defendant got out of the car. As Davis walked 

toward the rear of the vehicle, Betancourt pulled out a gun and 

pointed it at Gilbert. When Davis heard a gunshot, he ran away. 

As he ran, Davis heard two additional gunshots. Other witnesses 

also described hearing one shot followed by a pause and then two 

or more shots. 

At trial, Betancourt testified he fired a shot that did not hit 

Gilbert and defendant then grabbed the gun and shot and killed 

her. Defendant, in an interview with investigating officers (a 

recording of which was played at trial), denied shooting Gilbert. 

He also denied being in the same car as Davis, Betancourt, and 

Gilbert, or being present when Gilbert was shot. 
4

As relevant for our purposes, the trial court instructed the 

jury on aiding and abetting principles,2 murder generally, and the 

elements of first and second degree murder specifically. The jury 

was not instructed on the natural and probable consequences 

theory of aiding and abetting. Nor was the jury given thencustomary felony murder instructions; the court understood, as it 

said in discussions with counsel, that “‘this isn’t a felony murder 

case.’” The trial court did, however, give the jury an instruction 

patterned on CALJIC No. 8.10 that generally defined murder. 

The instruction as given erroneously included language that

could have been read, in isolation, to permit a finding of murder 

liability based on commission of a felony, specifically, assault 

with a firearm. Here is how Betancourt describes it: “CALJIC 

No. 8.10, as given in this case, told the jury that ‘Every person 

who unlawfully kills a human being or fetus with malice 

aforethought or a felony inherently dangerous to human life is 

guilty of the crime of murder in violation of Penal Code section 

187.’ Under the typed words ‘to human life’ the phrase ‘assault 

with a firearm’ is handwritten in. The instruction also states: 

2 As recounted in Betancourt: “The jury was instructed that 

a person aids and abets a crime if he knows of the unlawful 

purpose of the perpetrator, has the intent or purpose of 

committing or encouraging the commission of the crime and aids 

or encourages the intended crime. The instructions further 

stated that an aider and abettor’s guilt is determined by the acts 

of the participant and that person’s ‘own mental state.’ The 

instructions also told the jury that an aider and abettor might 

have a more culpable or less culpable mental state than the 

actual perpetrator and that the aider and abettor’s guilt could 

therefore be greater or less than the actual perpetrator’s guilt.” 
5

‘The killing was done with malice aforethought or ___ a felony 

inherently dangerous to human life namely assault with a 

firearm ___ is a felony inherently dangerous to human life.’”

This instruction generally defining murder, of course, was 

not the only murder instruction the jury received. The jury was 

also given an instruction describing the elements of first degree 

murder, including the requirement of proof of express malice, as 

well as an instruction defining malice itself. Neither of these 

instructions made reference to an inherently dangerous felony 

like the general instruction patterned on CALJIC No. 8.10 did.

Following the defense closing argument, the trial court 

clarified for the jury the theories of murder that were at issue 

and felony murder was not among them: “In this case there are 

three degrees of murder or three theories of murder that are 

being presented to you. [¶] One is first degree murder where you 

have an intent to kill and there is premeditation and 

deliberation. [¶] There are two types of second-degree or two 

degrees of second degree murder. One where you have [an] 

intent to kill with no premeditation and deliberation. [¶] And 

the second that we are calling implied malice murder where an 

act is done without intent to kill and the natural consequences of 

which are dangerous to human life. [¶] Depending upon what 

you find to be the facts, those three different types may apply to 

count 1 [the alleged murder of Gilbert] with respect to either 

defendant. But only the second-degree implied malice applies to 

count 2 [the alleged fetal murder].”

The jury convicted defendant (and Betancourt) of first 

degree murder on count one and second degree murder on count 
6

two.3 The jury found true the multiple murder special 

circumstance allegation. The jury also found true allegations 

that Betancourt (1) personally and intentionally discharged a 

firearm causing great bodily injury or death, in connection with 

the charge of murdering Gilbert and (2) personally and 

intentionally discharged a firearm, in connection with the fetal 

murder charge. The jury found personal use and discharge of a 

firearm enhancements alleged against defendant to be not true—

indicating the jury believed Betancourt was the actual killer.

On appeal from the criminal judgment, this court 

addressed instructional error claims that necessitated opining on 

the theory of murder the jury relied on in convicting defendant. 

We held defendant’s conviction for the first degree murder of 

Gilbert and the associated multiple murder special circumstance 

true finding appropriately rested on instructions that required 

the jury to find defendant (and Betancourt) intended to kill her. 

We further held the jury instructions, considered as a whole and 

in light of the statement made by the trial court concerning the 

theories of murder at issue, dispelled any reasonable possibility 

that the jury “understood the isolated reference in CALJIC No. 

8.10 referring to an inherently dangerous felony” to permit 

conviction of defendant for either murder on a felony murder 

theory. Specifically, as to the first degree murder conviction, this 

court held it was “not reasonably likely” that the jury relied on 

the felony murder rule without finding malice. As to the second 

degree murder conviction, this court opined “the jury must have 

found that [defendant and Betancourt] acted with implied 

3 The jury also found defendant guilty on the robbery

charges, which were unrelated to the murders.
7

malice” in light of the facts (including firing a gun at Gilbert’s 

head multiple times at close range).

Years later, defendant filed a section 1170.95 petition for 

resentencing. He checked boxes on the form petition asserting he 

was convicted of first or second degree murder pursuant to the 

felony murder rule or the natural and probable consequences 

doctrine and he could not be convicted of first or second degree 

murder because of changes made to section 188 or section 189 by 

Senate Bill 1437. He also requested appointment of counsel. 

The trial court denied the petition without first appointing 

counsel for defendant. Expressly relying on our decision in 

Betancourt, the court found defendant was not entitled to relief 

as a matter of law because he “was convicted as a direct aider and 

abettor . . . with his own intent to kill. He was not convicted 

under a theory of felony-murder or a theory of natural and 

probable consequences. [¶] . . . The appellate opinion affirming 

[defendant’s] conviction . . . reflects that [defendant] was 

convicted of murder on a theory of being a direct 

perpetrator . . . .” In the alternative, the court also found 

(incorrectly, but we need not get into it) that Senate Bill 1437 

was unconstitutional.

II. DISCUSSION

If a trial jury is not instructed on murder liability pursuant 

to the natural and probable consequences doctrine or the felony 

murder rule, a section 1170.95 petitioner cannot, as a matter of 

law, demonstrate he or she is eligible for section 1170.95 relief. 

(People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted 

Sept. 23, 2020, S263939; People v. Smith (2020) 49 Cal.App.5th 

85, 92, fn. 5, review granted Jul. 22, 2020, S262835 [“if the jury 
8

was not instructed on a natural and probable consequences or 

felony-murder theory of liability, the petitioner could not 

demonstrate eligibility as a matter of law because relief is 

restricted to persons convicted under one of those two theories”]

(Smith).) Though determining whether the jury was so 

instructed here requires some elaboration, the record establishes

neither of defendant’s murder convictions rest on either of these 

two theories of murder liability. The trial court was therefore 

entitled to deny his section 1170.95 petition without first 

appointing counsel.4 (Verdugo, supra, 44 Cal.App.5th at 330, rev. 

gr.; Smith, supra, at 92 [“If it is clear from the record of 

conviction that the petitioner cannot establish eligibility as a 

matter of law, the trial court may deny the petition”], rev. gr.)

Taking natural and probable consequences murder first, 

the analysis is easy. As our opinion in Betancourt notes, the jury 

was not instructed on natural and probable consequences 

4 Defendant has no constitutional right to appointed counsel. 

(See, e.g., People v. Falcon (2020) 57 Cal.App.5th 272, 279, review 

granted Jan. 27, 2021, S266041; People v. Cornelius (2020) 44 

Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410; 

Smith, supra, 49 Cal.App.5th at 92, rev. gr.; see also Dillon v. 

United States (2010) 560 U.S. 817, 828-829 [holding Sixth 

Amendment inapplicable to sentence modification proceedings]; 

People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [“[T]he 

retroactive relief . . . afforded by Senate Bill 1437 is not subject to 

Sixth Amendment analysis”]; In re Clark (1993) 5 Cal.4th 750, 

780 [constitutional due process guarantees demand appointment 

of counsel in postconviction proceedings “if a petition attacking 

the validity of a judgment states a prima facie case leading to 

issuance of an order to show cause”], italics added.)
9

murder. Defendant does not contend otherwise. That removes 

one of the two potential bases for section 1170.95 relief.

The issue of felony murder is slightly more complicated but 

the result is the same. The trial court recognized “‘this isn’t a 

felony murder case’” and defendant’s jury accordingly did not 

receive felony murder instructions. The twist, of course, is the 

jury was given the incorrect version of the CALJIC No. 8.10-

patterned general murder instruction that referred to a felony 

inherently dangerous to human life and specified assault with a 

firearm. But that doesn’t matter. The instructions considered as 

a whole and the jury’s multiple murder special circumstance true 

finding leave no doubt the jury found defendant intended to kill 

Gilbert—and his first degree murder conviction properly rests on 

a finding of express malice, a ground for murder liability that 

remains valid after Senate Bill 1437. That means defendant is 

not entitled to resentencing on his first degree murder conviction. 

(Verdugo, supra, 44 Cal.App.5th at 330 [“The record of conviction 

might also include other information that establishes the 

petitioner is ineligible for relief as a matter of law because he or 

she was convicted on a ground that remains valid 

notwithstanding Senate Bill 1437’s amendments to sections 188 

and 189 . . .”], rev. gr.) Defendant is also ineligible for 

resentencing as a matter of law on his second degree murder 

conviction because, as Betancourt holds (and we independently 

agree), the evidence and instructions at trial establish the jury’s 

determination of guilt rests on a finding of implied malice, which 

again is a ground for murder liability that remains valid after 

Senate Bill 1437.
10

DISPOSITION

The order denying defendant’s section 1170.95 petition is 

affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.