Filed 5/20/22 P. v. Birdsong CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and 

 Respondent,

v.

PATRICK DWIGHT 

BIRDSONG, JR.,

Defendant and

 Appellant.

 B312410

 (Los Angeles County

 Super. Ct. No. SA072721)

APPEAL from an order of the Superior Court of Los 

Angeles County, James R. Dabney, Judge. Reversed.

Adrian K. Panton, 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, Assistant 

Attorney General, Idan Ivri and Wyatt E. Bloomfield, Deputy 

Attorneys General, for Plaintiff and Respondent.
2

____________________________

A jury convicted Patrick Dwight Birdsong, Jr. of murdering 

Richard Juarez and attempting to murder Richard De la Cruz on 

the evening of November 3, 2009.1 After the Legislature enacted 

Penal Code section 1170.95, Birdsong filed a petition for 

resentencing of his murder conviction.2 He also argued at a 

hearing on the petition for resentencing that he should be 

resentenced on his attempted murder conviction. Although the 

trial court had appointed counsel for Birdsong, the trial court 

summarily denied the section 1170.95 petition before any party 

filed the briefs contemplated by section 1170.95, subdivision (c).

Birdsong contends the trial court committed prejudicial 

error because the jury was instructed about the natural and 

probable consequences doctrine with regard to his attempted 

murder conviction. We agree with Birdsong and will reverse the 

trial court’s order denying his section 1170.95 petition.

BACKGROUND

“Shortly before 9:00 p.m. on the evening of November 3, 

[2009,] Richard Juarez and Richard De la Cruz had been sitting 

on a bench in Virginia Avenue Park in Santa Monica, with 

companions Chloe McCarty and Ashleigh Rodriguez. De la Cruz 

belonged to the Santa Monica 13 gang; Juarez belonged to a gang 

in another territory, but was associated with De la Cruz and the 

Santa Monica 13 gang. One or two African-American men 

1 The jury also convicted Birdsong of street terrorism (see 

People v. Martin (July 30, 2014, B239366) [nonpub. opn.] at p. 5 

(Martin)), but that conviction is not pertinent to this appeal.

2 Further statutory references are to the Penal Code.
3

approached the group, one wearing a hooded gray sweatshirt over 

a red striped shirt, the other a black sweatshirt; one had a black 

beanie hat. One . . . of the men fired several shots, killing Juarez.

“Witnesses heard about eight or more gunshots, and 

multiple muzzle flashes were visible on the dashboard video 

recorder of a police car parked nearby on Pico Boulevard. After 

the shooting stopped, two men were seen running from the park, 

south across Pico Boulevard toward 22nd Street, one wearing a 

black sweatshirt, the other wearing a gray zip-up, hooded 

sweatshirt. One was wearing a black beanie cap.

“A police officer who was parked nearby on Pico Boulevard 

heard the shots, saw the men running, and followed them in his 

car. When he turned onto 22nd Street he could no longer see the 

men he had followed, but saw a car parked with its headlights on. 

When the car pulled away as he shone his spotlight on it, the 

officer followed and stopped the car.

“After a backup officer arrived he detained the driver and 

passenger, [codefendants] Norman Lovan Cole and Sean Alex 

Mermer. About 10 minutes later a police dog pulled [Birdsong] 

from under a parked van in a residential backyard on 22nd 

Street, near where Cole and Mermer had been parked. The 

police later found [codefendant] Taaj Zakee Martin hiding under 

a tarp in a residential garage nearby on 21st Street. He was 

wearing a white T-shirt, jeans, red shoes, but no sweatshirt. The 

police found two abandoned handguns nearby, one with a silver 

barrel matching the description of the weapon used by one of the 

shooters. They also found a black beanie hat and a dark hooded 

sweatshirt in the corner of the yard, and a gray sweatshirt under 

a car parked on 21st Street. DNA testing linked the beanie cap 

and the black sweatshirt to Birdsong, with Mermer as a minor 
4

contributor to the DNA on the cap. Gunshot residue was found 

on Martin and Birdsong, indicat[ing] their recent contact with or 

close proximity to a gun that had been fired.

“A search of the car revealed a cellphone registered to 

Martin, with DNA connecting Martin to it. Another phone found 

in the car was registered to Mermer’s mother, at an address in 

Lancaster. Birdsong’s fingerprints were on the Mermer phone, 

and on the car’s front and rear passenger doors.

“De la Cruz, Rodriguez, and McCarty were unable to 

identify any of the [defendants].”3 (Martin, supra, B239366 at pp. 

3-4.)

All four defendants—Cole, Mermer, Martin, and 

Birdsong—were charged with murdering Juarez and attempting 

to murder De la Cruz, Rodriguez, and McCarty.4 ( Martin, supra, 

B239366 at p. 4.) The jury convicted all four defendants of the 

first degree murder of Juarez and of the attempted premeditated 

murder of De la Cruz. (Id. at p. 5.) The jury concluded that 

Birdsong had not personally and intentionally discharged a 

firearm that caused Juarez’s death, “[b]ut as to each of the four 

defendants[, the jury] found . . . to be true that a principal in the 

crime personally and intentionally discharged a firearm that 

caused Juarez’s death, and that the offense was committed for 

the benefit of, at the direction of, or in association with a criminal 

3 As did the parties in their briefs, we draw this factual 

recitation from the background section of the opinion in 

Birdsong’s direct appeal.

4 Three of the defendants were also charged with street 

terrorism, and one of the defendants was charged with another 

murder that happened the same day. (Martin, supra, B239366 at 

p. 4.) None of those charges is relevant to this appeal.
5

street gang with the specific intent to promote, further[,] or assist 

in criminal conduct by gang members.” (Id. at p. 5.)

We ordered the abstract of judgment corrected as to one of 

Birdsong’s codefendants, but otherwise affirmed the defendants’ 

convictions on their direct appeal. ( Martin, supra, B239366 at p. 

41.)

“Effective January 1, 2019, the Legislature passed Senate 

Bill 1437 ‘to amend 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.’ [Citation.] In addition to 

substantively amending sections 188 and 189 of the Penal Code, 

Senate Bill 1437 added section 1170.95, which provide[d] a 

procedure for convicted murderers who could not be convicted 

under the law as amended to retroactively seek relief.” (People v. 

Lewis (2021) 11 Cal.5th 952, 959 (Lewis).)

On October 16, 2020, Birdsong filed a petition under 

section 1170.95 alleging that: (1) a complaint, information, or 

indictment was filed against him that allowed the prosecution to 

proceed under a theory of felony murder or murder under the 

natural and probable consequences doctrine; (2) at trial, he was 

convicted of first or second degree murder pursuant to one of 

those two doctrines; (3) he could not now be convicted of first or 

second degree murder because of changes made to sections 188 

and 189 effective January 1, 2019; and (4) requesting the 

appointment of counsel. 

The trial court appointed counsel for Birdsong by order 

dated October 19, 2020, and set the matter for hearing on 
6

December 7, 2020. On December 7, 2020, the People requested 

and the trial court granted an extension of time to file a response 

to Birdsong’s petition. On February 5, 2021, the People again 

requested an extension of time to respond to Birdsong’s petition, 

and the trial court granted that request to April 21, 2021. 

The trial court heard the matter on April 21, 2021. The 

trial court indicated that section 1170.95, subdivision (a) does not 

apply to attempted murder and that “as to the actual murder, 

[Birdsong] was either the actual killer or an aid[e]r or abettor in 

the actual killing and not—[the jury was not] instructed on felony 

murder or on the natural and probable consequences as to that 

count.” Birdsong’s counsel indicated on the record that denying 

the petition before the People filed a response and Birdsong filed 

a reply was improper and that the question of the applicability of 

section 1170.95 to attempted murder convictions was currently 

pending before the California Supreme Court. 

The trial court denied Birdsong’s petition and entered the 

following minute order: “The court has read and considered the 

defense’s petition for resentencing pursuant to Penal Code 

section 1170.95, the People’s response and other case 

information. [¶] The court denies the defense’s petition pursuant 

to Penal Code section 1170.95 based on the jury instructions that 

were given at the time of trial.” 

Birdsong filed a timely notice of appeal. 

In July 2021, the Supreme Court issued its opinion in 

Lewis, supra, 11 Cal.5th 952. In that opinion, the court 

concluded that “petitioners are entitled to the appointment of 

counsel upon the filing of a facially sufficient petition [citation]

and that only after the appointment of counsel and the 

opportunity for briefing may the superior court consider the 
7

record of conviction to determine whether ‘the petitioner makes a 

prima facie showing that he or she is entitled to relief.’ ” (Id. at p. 

957.) The trial court’s failure to appoint counsel and afford a 

petitioner the opportunity to brief the section 1170.95 petition, 

the Supreme Court concluded, is subject to a harmless error 

analysis under People v. Watson (1956) 46 Cal.2d 818 (Watson). 

(Lewis, at pp. 957-958.)

On October 5, 2021, the Governor signed Senate Bill No. 

775 (S.B. 775), which became effective January 1, 2022. S.B. 775 

amended section 1170.95 to include as eligible for resentencing 

persons convicted of “attempted murder under the natural and 

probable consequences doctrine.” (Stats. 2021, ch. 551, § 2, subd. 

(a); § 1170.95, subd. (a).)

DISCUSSION

The parties agree that the trial court erred when it denied 

Birdsong’s petition before the People responded and before 

Birdsong had an opportunity to reply. We also agree. (§ 1170.95, 

subd. (c); Lewis, supra, 11 Cal.5th at p. 957.)

The question on this appeal is whether under Watson, 

supra, 46 Cal.2d 818, that error prejudiced Birdsong. (See Lewis, 

supra, 11 Cal.5th at pp. 957-958.)

A. Murder

Birdsong does not contend here—nor could he—that the 

trial court’s conclusion regarding his murder conviction was 

prejudicial. The jury was instructed on implied malice for first 

and second degree murder with CALCRIM No. 520, which 

contains the words “natural and probable consequences.” But 

other courts have pointed out that although that instruction 

contains the words “natural and probable consequences,” the 

language is a “distinctly different concept[ ]” in the context of 
8

implied malice. (People v. Soto (2020) 51 Cal.App.5th 1043, 1056, 

disapproved on another ground in Lewis, supra, 11 Cal.5th 952.) 

“This distinction . . . is critical because potential relief under 

section 1170.95 extends only to those convicted . . . by operation 

of the natural and probable consequence doctrine or of felony 

murder.” (Soto, at p. 1056.) To find implied malice murder, the 

jury must have concluded that Birdsong “knew his act was 

dangerous to human life” and that he “deliberately acted with 

conscious disregard for human life.” (CALCRIM No. 520.) “The 

natural and probable consequences doctrine, by contrast, is a 

theory of liability by which an aider and abettor who intends to 

aid a less serious crime can be convicted of a greater crime. This 

doctrine comes into play when ‘an accomplice assists or 

encourages a confederate to commit one crime, and the 

confederate commits another, more serious crime (the nontarget 

offense).’ ” (Soto, at p. 1058.)

Birdsong’s ineligibility as a matter of law for resentencing 

under section 1170.95 for his murder conviction renders the trial 

court’s error harmless as to that count. (See Watson, supra, 46 

Cal.2d at p. 836.)

B. Attempted Murder

Birdsong argues that because the jury was instructed on 

the natural and probable consequences doctrine and because 

there is no way to determine from the jury’s verdicts whether 

they convicted him of attempted murder based on that theory, 

the trial court’s order denying his section 1170.95 petition was 

prejudicial. The People argue that the jury’s conclusion that the 

attempted murder was premeditated renders Birdsong ineligible 

as a matter of law for relief under section 1170.95 based on his 

attempted murder conviction.
9

The jury was instructed that it could find Birdsong guilty of 

attempting to murder McCarty, De la Cruz, and Rodriguez only if 

it first found him guilty of murdering Juarez, that “[d]uring the 

commission of murder of Richard Juarez a coparticipant in that 

murder of Richard Juarez committed the crime of attempted 

murder of Chloe McCarty, Richard De [l]a Cruz[,] and Ashleigh 

Rodriguez,” and “[u]nder all the circumstances, a reasonable 

person in [his] position would have known that the commission of 

attempted murder of . . . McCarty, . . . De [l]a Cruz[,] and . . . 

Rodriguez was a natural and probable consequence of the 

commission of” Juarez’s murder. The instruction told the jury 

that “[a] coparticipant in a crime is the perpetrator or anyone 

who aided and abetted the perpetrator.” (Original italics.) And it 

told the jury that “[a] natural and probable consequence is one 

that a reasonable person would know is likely to happen if 

nothing unusual intervenes.” (Original italics.)

The jury in this matter found that the allegation that 

Birdsong had personally and intentionally discharged a firearm 

causing Juarez’s death was not true. But the jury also separately 

concluded that Birdsong had personally and intentionally 

discharged a firearm for purposes of section 12022.53, subdivision 

(c).5

The People highlight the jury’s finding that the attempted 

murder was “committed willfully, deliberately[,] and with 

premeditation.” The People explain that the jury was instructed 

with CALCRIM No. 601 that “[t]he defendants acted willfully if 

5 We granted the People’s request for judicial notice of 

portions of the record in Birdsong’s underlying appeal. On our 

own motion, we take judicial notice of the entire record in case 

number B239366.
10

they intended to kill when they acted. The defendants 

deliberated if they carefully weighted the considerations for and 

against their choice and, knowing the consequences, decided to 

kill. The defendants premeditated if they decided to kill before 

acting.” (Original italics.)

The People argue that “[t]he key phrase in this instruction 

is ‘the defendants.’ At the time of appellant’s trial,” the People 

argue, “juries were generally permitted to find a premeditation 

allegation true as to an attempted murder under a natural and 

probable consequences theory, even if the defendant did not 

personally premeditate. [Citation.] Instructions permitting this 

result stated that the jury could find the premeditation allegation 

true if ‘[t]he defendant and/or a principal’ acted willfully and 

with premeditation and deliberation in the attempted murder, 

and told the jury to consider ‘if either the defendant or a principal 

or both of them acted with that state of mind.’ ” (Original italics.)

We disagree with the People’s argument. It is clear that 

the jury was instructed that the “defendants” acted a certain way 

if the jury drew certain other conclusions. And we recognize that 

absent evidence to the contrary, jurors are generally presumed to 

have followed the court’s instructions. (People v. Washington

(2017) 15 Cal.App.5th 19, 26.) Relying on that presumption, 

however, we must presume that the jury read and followed the 

entire instruction, which includes this language: “If you find the 

defendants guilty of attempted murder . . . , you must then decide 

whether the People have proved the additional allegation that 

the attempted murder was done willfully, and with deliberation 

and premeditation.” (Italics added.)

The construction of the instruction on deliberation and 

premeditation, then, required the jury to first determine whether, 
11

under any theory presented, Birdsong was guilty of attempted 

murder. And the instruction regarding attempted murder would 

have allowed the jury to reach its conclusion based on attempted 

murder as a natural and probable consequence of Birdsong 

having aided and abetted someone else murdering a different 

person.6

While we view this case as close, we cannot say based on 

the arguments before us that Birdsong is ineligible for relief as a 

matter of law for section 1170.95 relief as to his attempted 

murder conviction. The trial court’s error as to that count was 

not harmless. (See Watson, supra, 46 Cal.2d at p. 836.)

6 We also note that the allegation the jury found true was

that “the aforesaid attempted murder was committed willfully, 

deliberately[,] and with premeditation,” and not that a specific 

defendant or the “defendants” had done so. The distinction is 

obviously technical, but the consequences are substantial under 

the circumstances. It appears to be an exercise in judicial 

factfinding at this point to try to parse out the jury’s 

understanding of CALCRIM No. 601 based on the verdict forms 

as drafted and completed in this case. (See People v. Duchine

(2021) 60 Cal.App.5th 798, 816.)
12

DISPOSITION

The trial court’s order is reversed. The matter is remanded 

for further proceedings consistent with this opinion.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J.

MORI, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

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

Constitution.