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Filed 9/29/23 P. v. Russell CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

TITENESHA LANAE RUSSELL,

Defendant and Appellant.

C097571

(Super. Ct. No. 05F00798)

In 2006, a jury found defendant Titenesha Lanae Russell guilty of premeditated 

attempted murder (Pen. Code, §§ 664, 187)1 and other crimes. The trial court sentenced 

her to life in prison. In May 2022, Russell petitioned for resentencing under section 

1172.6. The trial court denied the petition, finding Russell ineligible for relief because 

she was convicted as an aider and abettor who intended to kill, not as an aider and abettor 

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 Undesignated statutory references are to the Penal Code. 
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under the natural and probable consequences doctrine. On appeal, Russell contends the 

trial court erred. We affirm.

BACKGROUND

In 2007, a panel of this court affirmed Russell’s underlying convictions and 

aggregate sentence on five offenses: premeditated attempted murder of a seven-monthold fetus while personally using a deadly and dangerous weapon, assault with a deadly 

weapon by means of force likely to cause great bodily injury, kidnapping to commit 

robbery, attempted robbery, and conspiracy to murder a fetus. (People v. Curry (2007) 

158 Cal.App.4th 766, 771-772 (Curry).)

Those offenses arose out of Russell’s participation in the September 2004 beating 

and kidnapping of the pregnant ex-girlfriend of one of Russell’s codefendants. Relevant 

here, after two of Russell’s codefendants decided to assault the victim to trigger a 

miscarriage, Russell agreed to help. When the moment arrived in a public park, Russell 

punched the victim in the face, and a codefendant kicked the victim in her side. As 

Russell and a codefendant drove away from the scene of the attack, the ex-boyfriend 

codefendant called the codefendant whom Russell was driving with and told her to return 

and “ ‘finish the job.’ ” When the codefendant asked if the objective was to kill the 

victim, the ex-boyfriend said, “ ‘just the baby.’ ” Russell and the codefendant returned to 

the park, where Russell hit the victim in the head with a flashlight, and a codefendant 

kicked the victim as she lay on the ground. The second assault left the victim 

unconscious. (Curry, supra, 158 Cal.App.4th at pp. 773-774, 792.)

The jury found one of Russell’s codefendants guilty of the same offenses it found 

Russell guilty of, including the special allegation that the attempted murder was 

committed with premeditation. (Curry, supra, 158 Cal.App.4th at pp. 772.)

Russell appealed, raising multiple claims, including a challenge to the 

premeditation instruction for premeditated attempted murder on the basis that “these 

instructions improperly ‘allowed [the] jurors to attach a premeditation finding to [her] 
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attempted murder charge, even if they explicitly found she did not personally 

premeditate.’ ” The Curry panel rejected that challenge given the case law, the jury 

instructions, and the jury’s verdicts. (Curry, supra, 158 Cal.App.4th at p. 791.)

The Curry panel explained that People v. Lee (2003) 31 Cal.4th 613 stands for the 

proposition that “a person may be convicted of premeditated attempted murder as an 

aider and abettor even if he or she did not personally act with willfulness, deliberation 

and premeditation.” (Curry, supra, 158 Cal.App.4th at p. 791; see Lee, at p. 627 

[“section 664(a) properly must be interpreted to require only that the murder attempted 

was willful, deliberate, and premeditated, but not to require that an attempted murderer 

personally acted with willfulness, deliberation, and premeditation, even if he or she is 

guilty as an aider and abettor”].)

As for the instructions and verdicts, the Curry panel observed that the trial court 

instructed Russell’s jury that in order to find true the special allegation of premeditation 

and deliberation, the “ ‘aider and abettor must share the intent to kill.’ However, when 

instructing the jury [on] attempted murder as a natural and probable consequence of 

felony assault, the court did not describe the offense as premeditated attempted murder.” 

(Curry, supra, 158 Cal.App.4th at p. 791, fn. omitted.) Accordingly, the Curry panel

concluded Russell’s challenge misread the instruction, because the jury had to find that 

Russell “ ‘share[d] the intent to kill.’ A jury could not make a true finding on the special 

allegation on premeditation if it determined that Russell only intended to aid and abet a 

perpetrator in felony assault without harboring the intent to kill [the victim’s] unborn 

child.” (Ibid.) 

In 2020, a panel of this court affirmed the trial court’s denial of Russell’s petition 

for resentencing pursuant to former section 1170.95, now renumbered as section 1172.6

(Stats. 2022, ch. 58, § 10). (People v. Russell (Sept. 18, 2020, C090723) [nonpub. opn.].) 
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In doing so, the panel held that conclusions in Curry regarding Russell’s intent to kill

were “law of the case” and binding. (People v. Russell, supra, C090723.)2

In May 2022—after the Legislature enacted Senate Bill No. 775 (2021-2022 Reg. 

Sess.) (Stats. 2021, ch. 551, §§ 1, 2), which made explicit that some attempted murder 

convictions are eligible for resentencing—Russell filed a new petition for resentencing. 

She alleged she was charged with attempted murder under the natural and probable 

consequences doctrine; she was convicted of attempted murder; and she could not now be 

convicted of attempted murder. After briefing from the parties, the trial court concluded 

Russell failed to demonstrate a prima facie case for relief under section 1172.6 and 

denied the petition. Relying on Curry in its December 2022 oral ruling, the trial court 

explained that “the record of conviction established that [Russell] was convicted as a 

direct perpetrator who intended to kill [the victim’s] unborn fetus, not as an aider and 

abettor under the natural and probable consequences doctrine.” Russell appealed.

DISCUSSION

I

Legal Background

Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on 

January 1, 2019, “amend[ed] 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, subd. (f).) It also added former section 1170.95 

2

 In that earlier case, the trial court ruled that attempted murder was not a crime the new 

resentencing scheme contemplated. (People v. Russell, supra, C090723.) The 2020 

panel concluded that even if the trial court erred in so ruling, the error was harmless in 

light of the conclusions in Curry. (Ibid.)
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(now section 1172.6), which allows those convicted of attempted murder under the 

natural and probable consequences doctrine3to petition the trial court to vacate the 

conviction and resentence the defendant. (§ 1172.6, subd. (a); Stats. 2018, ch. 1015, § 4.) 

“If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the 

court shall issue an order to show cause.” (§ 1172.6, subd. (c).)

The prima facie inquiry under section 1172.6, subdivision (c) is “limited.” 

(People v. Lewis (2021) 11 Cal.5th 952, 971.) “ ‘ “[T]he court takes petitioner’s factual 

allegations as true and makes a preliminary assessment regarding whether the petitioner 

would be entitled to relief if his or her factual allegations were proved.” ’ ” (Ibid.) 

Although the court may rely on the record of conviction, including a prior appellate court 

opinion, in determining whether a defendant has made a prima facie showing, the court 

“should not engage in ‘factfinding involving the weighing of evidence or the exercise of 

discretion.’ ” (Id. at p. 972.) When an appellate court assesses the jury verdicts to 

determine what findings they reflect, it is “not engaging in appellate factfinding.” 

(People v. Merritt (2017) 2 Cal.5th 819, 830; cf. Lopez, supra, 14 Cal.5th at pp. 580-581, 

588-589 [citing Merritt for the proposition that “alternative-theory” instructional errors—

which occur when a jury is instructed with two theories of an offense, a legally valid one 

and a legally invalid one—may be found harmless if the reviewing court determines 

beyond a reasonable doubt, based on the jury’s actual verdict and the evidence at trial, 

that the presentation of the invalid theory to the jury made no difference].)

3 “ ‘There are two distinct forms of culpability for aiders and abettors. “First, an aider 

and abettor with the necessary mental state is guilty of the intended crime. Second, under 

the natural and probable consequences doctrine, an aider and abettor is guilty not only of 

the intended crime, but also ‘for any other offense that was a “natural and probable 

consequence” of the crime aided and abetted.’ ” ’ ” (In re Lopez (2023) 14 Cal.5th 562, 

579 (Lopez).)
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II

Analysis

We agree with the trial court that Russell is ineligible for resentencing as a matter 

of law because the jury’s verdicts establish that she was convicted as an aider and abettor 

who intended to kill the victim’s fetus, not as an aider and abettor under the natural and 

probable consequences doctrine. (§ 1172.6, subd. (a); People v. Merritt, supra, 2 Cal.5th 

at p. 830.)

When the trial court instructed Russell’s jury on the special allegation of 

premeditation, it explained that an aider and abettor had to share the intent to kill. And 

when the trial court instructed the jury on attempted murder as a natural and probable 

consequence of felony assault, it “did not describe the offense as premeditated attempted 

murder.” (Curry, supra, 158 Cal.App.4th at p. 791.) Thus, when the jury rendered its 

guilty verdict on premeditated attempted murder, it necessarily found that Russell shared 

a codefendant’s intent to kill. (Ibid. [a jury could not have made “a true finding on the 

special allegation on premeditation if it determined that Russell only intended to aid and 

abet a perpetrator in felony assault without harboring the intent to kill”].) That the jury 

was instructed on the natural and probable consequence doctrine, by itself, does not make 

her eligible for relief, because it is clear presentation of that theory to the jury “made no 

difference.” (Lopez, supra, 14 Cal.5th at p. 589.) The premeditated attempted murder 

finding required the jury to find her guilty as an aider and abettor who shared the intent to 

kill, not as an aider and abettor under the natural and probable consequences doctrine—

the only viable avenue for eligibility for resentencing on an attempted murder conviction. 

(See People v. Rodriguez (2022) 75 Cal.App.5th 816, 823-824 [Lee remains good law, 

and a person convicted of premeditated attempted murder as an aider and abettor but who 

did not personally act with premeditation is ineligible for resentencing relief even after 

the enactment of Sen. Bill No. 775].) Accordingly, because Russell is not “[a] person 

convicted of . . . attempted murder under the natural and probable consequences 
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doctrine,” she does not meet the requirements of section 1172.6, subdivision (a). (See 

People v. Smith (2014) 60 Cal.4th 603, 611 [natural and probable consequences doctrine 

applies when person aids and abets one crime and a coparticipant commits another 

crime].)

Russell’s contentions and the cases relied on in briefing and at oral argument do 

not alter this dispositive calculus. As Russell points out, our Supreme Court recently 

issued two opinions explaining why true findings on allegations that do not encompass all 

the elements of murder do not preclude reversal of murder convictions for instructional 

error as a matter of law. In In re Ferrell (2023) 14 Cal.5th 593, the People argued the 

jury’s true finding on the firearm enhancement under Penal Code section 12022.53, 

subdivision (d), combined with the evidence presented at trial, proved that Ferrell 

committed implied malice murder and accordingly that any instructional error allowing 

jurors to consider an invalid second degree felony-murder theory was necessarily 

harmless. (Ferrell, at p. 603.) Our high court rejected this argument because evidence 

sufficient to prove the firearm allegation did not require proof that the defendant 

discharged the firearm with a subjective awareness of the risk that he might kill someone 

or with conscious disregard for life; thus, certain elements required to prove implied 

malice murder had not necessarily been found by the jury beyond a reasonable doubt. 

(Id. at p. 604.) 

In Lopez, our high court held that the instructing of the jury with the now invalid 

theory of aiding and abetting natural and probable consequences murder was not rendered 

harmless by the fact that the same jury found the gang special circumstance to be true, 

even though the gang special circumstance required the jury to find Lopez intended to 

kill. Again, certain elements that were necessary to prove implied malice murder had not 

necessarily been found by the jury beyond a reasonable doubt, including that Lopez 

“aided or encouraged the commission of the murder with knowledge of the unlawful 

purpose of the perpetrator and with the intent or purpose of committing, encouraging, or 
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facilitating its commission.” (Lopez, supra, 14 Cal.5th at p. 587.) The Lopez court 

distinguished cases, like this one, where the jury had also found the defendant guilty of 

conspiracy to commit murder, noting: “Unlike the conspiracy instruction, the gangmurder special-circumstance instruction does not necessarily establish all of the elements 

of directly aiding and abetting first degree murder. Thus, it does not in and of itself show 

the jury made the necessary findings for a valid theory.” (Id. at p. 588, italics added.)4 

Here, unlike the inference rejected in Ferrell, we do not infer Russell’s jury 

necessarily found all the elements now required for her attempted murder conviction by 

virtue of her conviction for personal use of a weapon. Nor, as in Lopez, do we infer the 

jury necessarily found all the required elements by virtue of a true finding on a special 

circumstance that separately required Russell to harbor the intent to kill. Further, unlike 

in Lopez, here Russell was found guilty of conspiracy to commit murder. This verdict 

required the jury to find that Russell had the required knowledge of unlawful purpose (of 

the perpetrator, i.e., to commit murder) and had the intent or purpose of committing, 

encouraging, or facilitating the murder’s commission. (See Lopez, supra, 14 Cal.5th at 

pp. 587-588.)

Finally, and as discussed ante, here Russell was convicted of premeditated 

attempted murder which, as instructed in this case, required the jury find that Russell

shared the intent of the perpetrator to convict her as an aider and abettor. Although 

4

 Our high court explained that “ ‘where two or more persons conspire to commit murder 

— i.e., intend to agree or conspire, further intend to commit the target offense of murder, 

and perform one or more overt acts in furtherance of the planned murder — each has 

acted with a state of mind “functionally indistinguishable from the mental state of 

premeditating the target offense of murder.” [Citation.] The mental state required for 

conviction of conspiracy to commit murder necessarily establishes premeditation and 

deliberation of the target offense of murder — hence all murder conspiracies are 

conspiracies to commit first degree murder.’ ” (Lopez, supra, 14 Cal.5th at p. 588, italics 

added.)
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Russell argues that her jury “could have found” that she “aided and abetted attempted 

murder by aiding and abetting assault” or that she “personally used a weapon while 

committing assault[,]” these hypotheticals do not account for the separate finding by the 

jury, in the context of further defining the attempted murder that it had already found 

Russell committed, of her shared intent to kill. Nor do they account for the conspiracy 

conviction. 

Russell also argues that perhaps the jury found “she intended to kill, but not 

necessarily while she committed assault[,]” pointing out that the instruction on 

premeditation and deliberation “did not require any accomplice to intend to kill while 

they were committing the acts that supposedly aided and abetted the direct perpetrator.” 

But the law requires no such parsing and Russell cites no cases supporting her argument 

that it does. Indeed, current law does not. (See People v. Lee, supra, 31 Cal.4th at p.

627; People v. Rodriguez, supra, 75 Cal.App.5th at pp. 823-824.) Russell relies mainly 

on Ferrell and Lopez to make this argument; however, as explained, those cases are 

clearly distinguishable. Further, Russell’s jury was instructed that to find her guilty of 

conspiracy to murder the fetus, it needed to find that she “intended to agree and did 

agree” to commit murder, and “at the time of the agreement,” that she and another 

member of the conspiracy “intended that one or more of them would commit murder.” 

Tellingly, the jury was also instructed that if it determined Russell had withdrawn from 

the conspiracy, it must find her not guilty of the conspiracy as well as “of any additional 

acts committed after [she] withdrew.” The jury’s finding of guilt as to the assault charge 

is thus also a finding that the conspiracy—founded on the agreement and intent to 

commit murder—continued, as did Russell’s participation therein and her corresponding 

intent and objective (to kill), throughout the commission of the entire attack on the victim 

and her fetus.

The jury found Russell guilty of conspiracy to murder the fetus, as well as the 

attempted premeditated murder of the fetus, and the jury’s instructions and corresponding 
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findings, amply supported by the evidence, reflect Russell’s established, agreed-upon, 

and ongoing intent to kill the fetus. As a matter of law, Russell simply cannot show that 

she was convicted under an invalid theory of murder, because the totality of the 

instructions, evidence, and verdicts prove that the jury made the findings required to 

convict her under the valid theory.5

DISPOSITION

The order denying Russell’s section 1172.6 petition for resentencing is affirmed.

 /s/

BOULWARE EURIE, J.

We concur:

 /s/

DUARTE, Acting P. J.

 /s/

KRAUSE, J.

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 While the People in their brief invoked the “law of the case” doctrine and did not 

discuss at length Russell’s opening brief contentions, we do not find they thereby 

conceded that Russell’s appeal has merit as Russell’s briefing suggests. Even if we did

so find, we would not be bound by such a concession. (See People v. Hawkins (2012) 

211 Cal.App.4th 194, 202-203 [disagreeing with the People’s concession and citing cases 

for the proposition courts need not accept the People’s concessions].)