Filed 1/11/23 P. v. Vallery CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

RAYNARD JOHNNY VALLERY,

Defendant and Appellant.

B318292

(Los Angeles County

Super. Ct. No. A782361-02)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Frederick N. Wapner, Judge. Reversed 

and remanded with directions.

Eric R. Larson, under appointment by the Court of Appeal, 

for Defendant and Appellant. 

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 
2

Assistant Attorney General, Charles S. Lee and Paul S. Thies, 

Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

Based on crimes committed in 1986, Raynard Johnny 

Vallery was convicted following a jury trial in 1989 on two counts 

of first degree murder and two counts of robbery with true 

findings on multiple-murder and felony-murder specialcircumstance allegations. In January 2019 Vallery petitioned for 

resentencing pursuant to Penal Code section 1172.6 (former 

section 1170.95).

1 The superior court denied the petition without 

holding an evidentiary hearing, finding Vallery “clearly acted 

with the intent to kill.” We reverse the order denying Vallery’s 

petition and remand with directions to issue an order to show 

cause and conduct further proceedings in accordance with 

section 1172.6, subdivision (d).

FACTUAL AND PROCEDURAL BACKGROUND

1. Vallery’s Murder Convictions

As detailed in our nonpublished opinion affirming Vallery’s 

convictions (People v. Vallery (July 13, 1995, B045376), the 

evidence at trial, viewed through the deferential lens applicable 

on direct appeal, established that Vallery and Guy Ross during 

the evening of April 14, 1986 formulated a plan to rob a 

neighborhood liquor store and kill the husband and wife owners 

to avoid capture.2 The following morning the two men carried out 

1 Statutory references are to this code.

2 Vallery in his opening brief “adopt[ed] the Statement of 

Facts contained in this Court’s prior opinion on direct appeal” for 

purposes of a summary of the evidence presented at trial, while 

emphasizing, because of the applicable standard of review, it was 

written in the light most favorable to the People. 
3

their plan. While Vallery subdued and held the wife in the front 

of the store, Ross stabbed the husband to death in a back room 

after he claimed his wife had the combination to the store’s safe. 

Ross then stabbed the woman to death when she said her 

husband had the combination. Ross and Vallery fled with a small 

amount of cash and some liquor. 

According to our opinion, after being arrested Vallery 

admitted taking the knife to the store and pointing it at the wife, 

then giving it to Ross inside the store. Vallery also admitted to 

police officers that he and Ross had agreed they could not leave a 

witness, and Vallery originally had planned to kill the owners 

with his hands. 

As we explained in affirming Vallery’s convictions, because 

the murders occurred in 1986, a true finding on the robberymurder special-circumstance allegation required proof the 

defendant acted with an intent to kill. On appeal Vallery 

contended the special-circumstance instruction given in his case 

failed to accurately set forth that requirement. We rejected his

argument, holding, “Here, the instruction adequately informed 

the jury that, if they found ‘the murder occurred during the 

course of a robbery, and that the defendant has been convicted of 

[multiple murders],’ it ‘must find beyond a reasonable doubt that 

the defendant intended to kill a human being.’ . . . Simply stated, 

findings under either a felony murder or deliberate, premeditated 

theory did not permit the jury to make the special circumstance 

finding unless and until it found an intent to kill.”
4

2. Vallery’s Petition for Writ of Habeas Corpus

On July 17, 2018 the superior court (Hon. Frederick N. 

Wapner)3 denied Vallery’s petition for writ of habeas corpus, 

which was based on the Supreme Court’s then-recent decisions in 

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

Clark (2016) 63 Cal.4th 522 (Clark) identifying factors for 

assessing whether the evidence at trial supported a jury’s felonymurder special-circumstance finding (§ 190.2, subd. (a)(17)). In 

its order denying the petition the court identified the sole 

question presented as where Vallery fell “on the so-called TisonEdmund continuum,” referring to two United States Supreme 

Court decisions, one in which the Supreme Court held the aider 

and abettor’s role qualified him for the death penalty under the 

felony-murder rule and the other where the conduct was 

insufficient to qualify for the death penalty. After briefly 

discussing those two cases, the court ruled, “Where petitioner 

falls on this spectrum is not a close question. He helped plan the 

crime where he and the co-defendant planned not only to rob the 

victims, but to kill them because the victims knew them and 

would be able to identify them. They took a knife with them. 

The co-defendant stabbed the husband to death first, while 

petitioner Vallery was holding his wife. The co-defendant then 

stabbed her to death. Both defendants fled and hid the knife. . . . 

The petitioner is even more culpable than Tison [whose death

sentence was upheld by the United States Supreme Court].” 

3 Hon. Bernard J. Kamins, who presided at Vallery’s trial, 

retired prior to the habeas corpus proceedings. 
5

3. Vallery’s Petition for Resentencing

On January 9, 2019 Vallery, representing himself, filed a 

petition for resentencing under former section 1170.95, checking 

boxes on the printed form establishing a facially sufficient case 

for resentencing relief, including the boxes stating he had been 

charged with murder by complaint, information or indictment 

that allowed the prosecution to procced under a theory of felony 

murder or murder under the natural and probable consequences 

doctrine, at trial he was convicted of first or second degree 

murder pursuant to the felony-murder rule or the natural and 

probable consequences doctrine, he was not a major participant 

or did not act with reckless indifference to human life during the 

course of the underlying felonies, and he could not now be 

convicted of first or second degree murder because of changes 

made to sections 188 and 189 by Senate Bill No. 1437 

(Stats. 2018, ch. 1015) (Senate Bill 1437). Vallery requested the 

court appoint counsel.

The prosecutor filed a response to the petition arguing the 

record of conviction, including the appellate record and our 

opinion affirming the judgment, established Vallery was 

ineligible for resentencing relief because the jury found he had 

acted with the intent to kill the two possible witnesses to the 

robbery and there was more than enough evidence to prove he 

was a major participant in the robbery who acted with reckless 

indifference to human life as defined by amended section 189, 

subdivision (e)(3).4 

4 The prosecutor’s response also argued Senate Bill 1437 was 

unconstitutional, a contention not asserted by the People on 

appeal.
6

The court appointed counsel to represent Vallery. After 

several continuances Vallery’s counsel filed a response stating he 

had thoroughly reviewed the record on appeal and researched 

applicable legal issues and concluded there were no reasonably 

arguable issues to present in response to the prosecutor’s 

opposition memorandum. 

At a hearing on January 14, 2022, after the parties 

submitted on their papers, the court (Judge Wapner) denied the 

petition, stating, “The defendant clearly acted with the intent to 

kill. This was a planned execution of two people so they would 

leave no witnesses in a robbery attempt.” 

Vallery filed a timely notice of appeal. 

DISCUSSION

1. Section 1172.6 (Former Section 1170.95)

As is now familiar to bench and bar, Senate Bill 1437 

substantially modified the law relating to accomplice liability for 

murder, eliminating the natural and probable consequences 

doctrine as a basis for finding a defendant guilty of murder 

(People v. Gentile (2020) 10 Cal.5th 830, 842-843) and 

significantly narrowing the felony-murder exception to the malice 

requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e); 

see People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); 

People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) 

Senate Bill 1437 also authorized, through former 

section 1170.95, an individual convicted of felony murder or 

murder based on the natural and probable consequences doctrine 

to petition the sentencing court to vacate the conviction and be 

resentenced on any remaining counts if he or she could not now 

be convicted of murder because of Senate Bill 1437’s changes to 

the definitions of the crime. (See Strong, supra, 13 Cal.5th at 
7

p. 708; Lewis, supra, 11 Cal.5th at p. 957; People v. Gentile, 

supra, 10 Cal.5th at p. 843.) As amended by Senate Bill No. 775

(Stats. 2021, ch. 551, § 2), these ameliorative changes to the law 

now expressly apply to attempted murder and voluntary 

manslaughter.

If the petition contains all the required information, 

including a declaration by the petitioner that he or she is eligible 

for relief (§ 1172.6, subd. (b)(1)(A)), the court must appoint 

counsel to represent the petitioner, if requested (§ 1172.6, 

subd. (b)(3)), and direct the prosecutor to file a response to the 

petition, permit the petitioner to file a reply and determine if the 

petitioner has made a prima facie showing that he or she is 

entitled to relief. (§ 1172.6, subd. (c); see Lewis, supra, 11 Cal.5th 

at pp. 962-963.)

In determining whether the petitioner has carried the 

burden of making the requisite prima facie showing, the superior 

court properly examines the record of conviction, “allowing the 

court to distinguish petitions with potential merit from those that 

are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971; see 

People v. Mancilla (2021) 67 Cal.App.5th 854, 864-865.) 

However, “the prima facie inquiry under subdivision (c) is 

limited. Like the analogous prima facie inquiry in habeas corpus 

proceedings, the 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. If so, the court must issue an order to 

show cause. . . . However, if the record, including the court’s own 

documents, contain[s] facts refuting the allegations made in the 

petition, then the court is justified in making a credibility 
8

determination adverse to the petitioner.” (Lewis, at p. 971, 

internal quotation marks omitted.)

When a petitioner has carried the burden of making the 

requisite prima facie showing he or she falls within the 

provisions of section 1172.6 and is entitled to relief, the court 

must issue an order to show cause and hold an evidentiary 

hearing to determine whether to vacate the murder conviction 

and resentence the petitioner on any remaining counts. 

(§ 1172.6, subd. (d)(1).) At that hearing the court may consider 

evidence “previously admitted at any prior hearing or trial that is 

admissible under current law,” including witness testimony. 

(§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may 

also offer new or additional evidence. (Ibid.) 

2. The Special-circumstance Instruction and Jury Verdict 

Do Not Establish Vallery’s Ineligibility for Resentencing 

Relief as a Matter of Law

a. The superior court engaged in impermissible 

factfinding

The superior court did not explain the basis for its finding

that Vallery was ineligible for resentencing relief because he 

“clearly acted with the intent to kill,” either at the hearing held 

on January 14, 2022 or in its written order following that 

hearing. However, given the court’s observation that Vallery and 

Ross planned in advance to kill any witnesses to the robbery—

detail described in our opinion affirming the convictions and in 

the court’s earlier order denying Vallery’s petition for writ of 

habeas corpus,5 but not part of the jury’s verdict in the case—it is 

5 The prosecutor included both our opinion and the superior 

court’s ruling denying Vallery’s petition for writ of habeas corpus 
9

apparent, as Vallery argues, that the court engaged in judicial 

factfinding not permitted at the prima facie stage of 

section 1172.6 proceedings. (See Lewis, supra, 11 Cal.5th at 

pp. 971-972.)

Although acknowledging the superior court did not refer to

the verdict in denying Vallery’s petition, the Attorney General 

insists the court did not engage in improper factfinding because 

the jury necessarily found Vallery had acted with the intent to 

kill in finding true the robbery-murder special-circumstance 

allegation. Recognizing (but not conceding) the non sequitur, the 

Attorney General elsewhere argues, even if the rationale for the 

superior court’s ruling was incorrect, we should affirm its order 

based on the jury’s necessary finding of intent to kill because “‘“a 

ruling or decision, itself correct in law, will not be disturbed on 

appeal merely because given for a wrong reason.”’” (People v.

Turner (2020) 10 Cal.5th 786, 807; accord, People v. Smithey

(1999) 20 Cal.4th 936, 972.) Although this statement of appellate

practice is accurate, it is inapplicable here. Because of an

apparent error or omission in the trial court’s specialcircumstance instructions—at least as it appears from the limited

record now before us—the jury’s verdict does not establish

Vallery’s ineligibility for resentencing relief as a matter of law.

b. The jury did not necessarily find that Vallery had the 

intent to kill both victims

“[A]s it stood in 1990, state law made only those felonymurder aiders and abettors who intended to kill eligible for a 

death sentence.” (Banks, supra, 61 Cal.4th at p. 798; accord,

People v. Mil (2012) 53 Cal.4th 400, 408-409 [“In People v.

as exhibits to his memorandum opposing Vallery’s petition for 

resentencing. 
10

Anderson (1987) 43 Cal.3d 1104 [the Supreme Court] determined

that the felony-murder special circumstance, as it then read,

applied only to the actual killer or to an aider and abettor who

intended to kill. [Citation.] In 1990, the voters approved

Proposition 115, which expanded the scope of Penal Code

section 190.2 by adding subdivisions (c) and (d). Accordingly, a

person other than the actual killer is now subject to the death

penalty or life imprisonment without the possibility of parole if

that person intended to kill or was a major participant in the

underlying felony and acted with reckless indifference to human

life”].)

Our opinion affirming Vallery’s convictions quoted a 

portion of the special-circumstance instructions given at trial: “If

you find the defendant in this case guilty of murder of the first 

degree, you must then determine if one or more of the following 

special circumstances are true or not true: [¶] Number 1, that the 

murder occurred during the course of a robbery, and that the 

defendant has been convicted in this proceeding of more than 

one murder in the first degree and one or more crimes of the first 

or second degree murder. [¶] The People have the burden of 

proving the truth of a special circumstance. [¶] If you have a 

reasonable doubt as to whether a special circumstance is true, 

you must find it to be not true. [¶] If you find beyond a reasonable 

doubt that the defendant was either the actual killer,[6] a co6 In Carlos v. Superior Court (1983) 35 Cal.3d 131 the 

Supreme Court held the felony-murder special circumstance

required an intent to kill even if the defendant was the actual

killer. People v. Anderson, supra, 43 Cal.3d at page 1147

overruled Carlos insofar as it required an intent to kill for the

actual killer in a felony-murder case, but left in place the intent

requirement for aiders and abettors. (See Banks, supra,
11

conspirator or an aider or abettor, then you must also find beyond 

a reasonable doubt that the defendant intended to kill a human 

being in order to find the special circumstance to be true. . . .”

(Italics added, concluding ellipses in original.)

The language quoted in our opinion appears to combine 

elements from CALJIC Nos. 8.80, “Special Circumstances—

Introductory”; 8.81.3, “Special Circumstances—Multiple Murder 

Convictions”; and 8.81.17, “Special Circumstances—Murder in 

Commission of ____.” At the time of Vallery’s trial CALJIC 

No. 8.80 (5th ed. 1988) included as an optional additional 

paragraph the admonition, “You must decide separately each 

special circumstance alleged in this case [as to each of the 

defendants]. If you cannot agree as to all of the special 

circumstances, but can agree as to one [or more of them], you 

must make your finding as to the one [or more] upon which do 

agree.]” The record before us does not include the specialcircumstance instructions given at trial, and the ellipses in our 

opinion on direct appeal when quoting the instructions make it 

impossible for us to determine whether the trial court included 

this additional language. 

In its verdict on the special circumstances the jury found 

true the allegations that Vallery “has been convicted in this 

proceeding of one or more murder(s) in the first degree and one or 

more crimes of first or second degree murder within the meaning 

of Penal Code Section 190.2(a)(3) [multiple murders]” and that 

61 Cal.4th at p. 798.) Because the crimes with which Vallery was

charged took place prior to the 1987 decision in Anderson, the

trial court was required to, and did, instruct in accordance with

Carlos, as we noted in our opinion. However, it was undisputed

Ross, not Vallery, was the actual killer of both victims.
12

“the murders of JUNG KUEN CHONG and JUNG RAN CHONG 

were committed, aided and abetted, or assisted by defendant 

RAYNARD VALLERY while said defendant was engaged in the 

commission of, and/or an accomplice in the commission of, to 

commit the crime of robbery . . . within the meaning of Penal 

Code Section 190.2(a)(17) [felony murder].”7 

Regardless of his intent, as an aider and abettor of the 

robberies during which the two victims were killed by Ross, 

Vallery was guilty of two counts of first degree murder. (See

Strong, supra, 13 Cal.5th at p. 704 [under the felony-murder rule

as it existed prior to enactment of Senate Bill 1437, “‘when the

defendant or an accomplice kill[ed] someone during the 

commission, or attempted commission, of an inherently 

dangerous felony,’ the defendant could be found guilty of the 

crime of murder, without any showing of ‘an intent to kill, or even 

implied malice, but merely an intent to commit the underlying 

felony.’ [Citation.] Murders occurring during certain violent or 

serious felonies were of the first degree, while all others were of 

the second degree”]; People v. Lewis (2001) 25 Cal.4th 610, 642 

[“[l]iability for first degree murder based on a felony-murder 

theory is proper when the defendant kills in the commission of 

robbery, burglary, or any of the other felonies listed in 

section 189”].) In that context, Vallery contends, because the 

special-circumstance instruction specified the jury had to find he 

intended to kill “a human being” while committing one or more 

first degree murders, the jury could have found the felony-murder 

special-circumstance allegation true as to both victims even if he 

intended to kill only the wife and not her husband. (Recall, 

7 At the Attorney General’s request, we augmented the 

record on appeal to include this verdict form. 
13

Vallery was restraining the wife in the front of the store when 

Ross stabbed her husband to death in a back room after he failed 

to reveal the safe’s combination. Ross then returned to the front 

of the store and killed the wife.) 

The Attorney General disputes this interpretation, 

explaining, “The prosecution’s case was that the two murders 

took place in the same course of events . . . . [T]he jury could not 

have found that appellant intended to kill one victim without 

finding that he intended to kill the other.” While that is a 

reasonable—perhaps nearly inevitable—interpretation of the 

trial evidence and the resulting jury verdict, for us to accept that 

analysis would require judicial factfinding. As such, it does not 

defeat Vallery’s prima facie showing of eligibility for resentencing 

relief. And given the limited information we have as to the jury’s 

instructions, Vallery’s contention is not implausible, requiring 

the issuance of an order to show cause and an evidentiary 

hearing to determine whether the petition should be granted.
14

DISPOSITION

The postjudgment order denying Vallery’s petition for 

resentencing is reversed. On remand the superior court is to 

issue an order to show cause and to conduct further proceedings 

in accordance with section 1172.6, subdivision (d).

PERLUSS, P. J.

We concur:

SEGAL, J.

HOWARD, J.*

* Judge of the Marin County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.