Filed 5/4/23 P. v. Jackson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES JACKSON,

Defendant and Appellant.

B323490

(Los Angeles County

Super. Ct. No. BA282268)

APPEAL from an order of the Superior Court of Los 

Angeles County, George G. Lomeli, Judge. Affirmed.

James Jackson, in pro. per.; Valerie G. Wass, under 

appointment by the Court of Appeal, for Defendant 

and Appellant.

No appearance for Plaintiff and Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳
2

James Jackson appeals from an order denying his petition 

for resentencing under Penal Code1 section 1172.6.

2 His 

appellate counsel filed a brief under People v. Delgadillo (2022) 

14 Cal.5th 216 (Delgadillo),

3 and Jackson filed a supplemental 

brief. We now independently review the contentions Jackson 

raises in his supplemental brief and, after doing so, affirm the 

order.

1 All further undesignated statutory references are to the 

Penal Code.

2 Effective June 30, 2022, section 1170.95 was renumbered to 

section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)

3 Delgadillo, supra, 14 Cal.5th 216, held that the procedures 

in Anders v. California (1967) 386 U.S. 738 and People v. Wende 

(1979) 25 Cal.3d 436 do not apply to appeals from the denial of 

postconviction relief under section 1172.6. The court instructed 

that on appeal from an order denying section 1172.6 relief, a 

counsel who finds no arguable issue should file a brief informing 

the appellate court of that determination and include a concise 

factual recitation. (Delgadillo, at pp. 231–232.) The appellate 

court shall send a copy of the brief to the defendant informing the 

defendant of the right to file a supplemental brief and that if one 

is not filed within 30 days, the court may dismiss the matter. 

(Ibid.) If a supplemental brief is filed, we must evaluate the 

contentions in it. (Id. at p. 232.) If a supplemental brief is not 

filed, we may dismiss the appeal as abandoned without a written 

opinion. (Ibid.) However, we retain discretion to independently 

review the record. (Ibid.)
3

BACKGROUND

In 2005, three men in a car drove by a small group of 

people talking outside a house.4 The car’s front passenger fired 

multiple shots at the group, killing one man and injuring two 

women. Two of the car’s passengers, whom a witness identified 

as Jackson and Michael Antonio Mitchell, got out of the car and 

ran away. The witness saw a gun in Jackson’s waistband. 

Forensic evidence suggested that at least two guns were fired.

An information was filed charging Jackson with first 

degree murder (§ 187, subd. (a)) and two counts of attempted 

premeditated murder (§§ 664, 187, subd. (a)). The information 

also alleged principal gun use enhancements (§ 12022.53, subds. 

(b), (c), (d) & (e)(1)) and gang enhancements (§ 186.22, subd. 

(b)(1)(A)). A jury found Jackson guilty as charged.5 In May 2006, 

the trial court sentenced Jackson to 50 years to life for the 

murder and to life plus 25 years to life for one of the attempted 

murder counts.

In 2007, a different panel of this Division affirmed 

Jackson’s judgment of conviction on direct appeal. (People v. 

Jackson, supra, B191397.)

Thereafter, our Legislature passed Senate Bill No. 1437

(2017–2018 Reg. Sess.) (Senate Bill 1437). In short, Senate Bill 

4 We derive the factual background from the opinion 

affirming Jackson’s judgment of conviction. (People v. Jackson 

(June 27, 2007, B191397) [nonpub. opn.].) We have taken judicial 

notice of the records in that appeal.

5 Mitchell was jointly charged with Jackson with first degree 

murder, attempted premeditated murder, and possession of a 

firearm by a felon, with principal gun use and gang allegations.

The jury also found Mitchell guilty as charged.
4

1437 limited accomplice liability under the felony-murder rule

and eliminated the natural and probable consequences doctrine 

as it relates to murder. (See generally People v. Lewis (2021) 11 

Cal.5th 952, 957, 959 (Lewis); People v. Gentile (2020) 10 Cal.5th 

830, 842–843 (Gentile).) The Legislature then passed Senate Bill 

No. 775 (2020–2021 Reg. Sess.) to expand relief to people 

convicted of, as relevant here, attempted murder and to provide 

that a defendant convicted under a now-invalid theory of murder 

or attempted murder can seek relief on direct appeal. Senate Bill 

No. 775 also eliminated convictions for murder based on a theory 

under which malice is imputed to a person based solely on that 

person’s participation in a crime.

In January 2022, Jackson petitioned for resentencing under 

the new law.6 The trial court appointed counsel for Jackson. 

Although the trial court issued a tentative ruling denying the 

petition, the trial court granted a defense request to file a written 

response and set a hearing for July 25, 2022. At that hearing, 

Jackson’s counsel declined to submit any written opposition and 

instead submitted on the petition as filed. The trial court said it 

had reviewed the “overall court record” and found that Jackson 

was the actual killer as to the murder count and one of the 

shooters as to the attempted murder counts. As one of the actual 

6 Jackson had previously filed three petitions for 

resentencing. On appeal from an order denying one of those 

petitions, a different panel of this Division found that Jackson 

was ineligible for relief because he was convicted as a direct aider 

and abettor, as the jury was not instructed on felony murder or 

the natural and probable consequences doctrine. (People v. 

Jackson (Feb. 10, 2021, B297698) [nonpub. opn.].) We have also 

taken judicial notice of the records in that case.
5

shooters in the attempted murder counts, Jackson either had the 

specific intent to kill the victims or he acted with reckless 

disregard to their lives. Therefore, the trial court found that 

Jackson was ineligible for resentencing.

This appeal followed. Court-appointed appellate counsel 

filed an opening brief that raised no issues, under Delgadillo, 

supra, 14 Cal.5th 216. We directed appellant’s counsel to send 

Jackson the record and a copy of the opening brief, and we 

advised that within 30 days of the date of the notice, Jackson

could submit a supplemental brief or letter stating any grounds 

for an appeal, or contentions, or arguments he wished this court 

to consider. Jackson submitted a supplemental brief in which he 

argued that his section 1172.6 petition was improperly denied 

and that his jury was improperly instructed with CALJIC 

No. 3.00. We now address those contentions.

DISCUSSION

Senate Bill 1437 took effect on January 1, 2019, and, as we 

have said, limited accomplice liability under the felony-murder 

rule and eliminated the natural and probable consequences 

doctrine as it relates to murder. (See generally Gentile, supra, 10 

Cal.5th at pp. 842–843). Senate Bill 1437 amended the felonymurder rule by adding section 189, subdivision (e), which 

provides that a participant in the perpetration of qualifying 

felonies is liable for felony murder only if the person (1) was the 

actual killer; (2) was not the actual killer, but with the intent to 

kill, acted as a direct aider and abettor; or (3) the person was a 

major participant in the underlying felony and acted with 

reckless indifference to human life, as described in section 190.2, 

subdivision (d). (See generally Gentile, at p. 842.)
6

To amend the natural and probable consequences doctrine, 

Senate Bill 1437 added section 188, subdivision (a)(3), which 

provides that outside of what felony murder liability remains in 

section 189, subdivision (e), “to be convicted of murder, a 

principal in a crime shall act with malice aforethought. Malice 

shall not be imputed to a person based solely on [the person’s] 

participation in a crime.” (See also Gentile, supra, 10 Cal.5th at 

pp. 842−843.)

Senate Bill No. 775, effective January 1, 2022, broadened

the pool of petitioners eligible for resentencing. (See generally 

People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.) Those eligible 

for relief now include persons charged and/or convicted of 

attempted murder under a theory of felony murder or the natural 

and probable consequences doctrine. (Stats. 2021, ch. 551, § 1, 

subd. (a).) A petition may also be filed by a person convicted of 

murder or under any “other theory under which malice is 

imputed to a person based solely on that person’s participation in 

a crime.” (§ 1172.6, subd. (a).)

Persons convicted of murder or attempted murder under a 

now-invalid theory may petition to vacate their convictions and 

obtain resentencing. (§ 1172.6, subd. (a).) If the petitioner makes 

a prima facie showing of entitlement to relief, the trial court is 

required to issue an order to show cause and to hold an 

evidentiary hearing at which the prosecution bears the burden of 

proving beyond a reasonable doubt that the petitioner is guilty of 

murder or attempted murder under the amended law. (§ 1172.6, 

subd. (d)(3).)

Lewis, supra, 11 Cal.5th at page 957, clarified that a 

defendant is entitled to counsel, if requested, upon the filing of a 

facially sufficient petition, that is, one that makes the necessary 
7

averments, without regard to the defendant’s eligibility for relief.

If the trial court determines that the petitioner has made such a 

prima facie showing, it must appoint counsel, issue an order to 

show cause, and then “hold a hearing ‘to determine whether to 

vacate the murder conviction and to recall the sentence and 

resentence the petitioner on any remaining counts in the same 

manner as if the petitioner had not . . . previously been 

sentenced, provided that the new sentence, if any, is not greater 

than the initial sentence.’ ” (Id. at p. 960.)

To demonstrate prejudice from the denial of a section 

1172.6 petition before the issuance of an order to show cause, the 

petitioner must show it is reasonably probable that, absent error, 

the petition would not have been summarily denied without an 

evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972–974; 

see generally People v. Watson (1956) 46 Cal.2d 818, 836.)

Here, it does not appear that the trial court issued an order 

to show cause. But even if an order to show cause should have 

issued, any error was harmless.

First, Jackson’s jury was not instructed on felony murder,

the natural and probable consequences doctrine, or on a theory 

under which malice could be imputed to him. Rather, the jury 

was instructed on murder with express or implied malice 

(CALJIC Nos. 8.10, 8.11), deliberate and premeditated first 

degree murder (CALJIC No. 8.20), drive-by murder requiring 

intent to kill (CALJIC No. 8.25.1), and attempted premeditated 

murder (CALJIC Nos. 8.66, 8.11, 8.67). The jury was further 

instructed on direct aiding and abetting via CALJIC Nos. 3.007

7 CALJIC No. 3.00 instructed that persons “who are involved 

in committing a crime are referred to as principals in that crime. 
8

and 3.01.8 Senate Bill 1437 did not eliminate direct aiding and 

abetting liability for murder “because a direct aider and abettor 

to murder must possess malice aforethought.” (Gentile, supra, 10 

Cal.5th at p. 848; see also People v. McCoy (2001) 25 Cal.4th 

1111, 1118.)

Second, the verdicts show that Jackson was convicted 

either as the actual killer/attempted killer or as a direct aider 

and abettor with malice aforethought. The jury convicted 

Jackson (as well as Mitchell) of first degree murder and 

attempted premeditated murder, meaning the jury necessarily 

found that if Jackson was a direct aider and abettor to the

crimes, he shared the direct perpetrator’s intent to kill and aided 

in the commission of the crimes. (See, e.g., People v. Nguyen

(2015) 61 Cal.4th 1015, 1054 [aider and abettor to attempted 

murder must intend to kill]; People v. Estrada (2022) 77 

Cal.App.5th 941, 945 [petitioner convicted of first degree murder 

as aider and abettor with intent to kill ineligible for § 1172.6 

relief]; People v. Cortes (2022) 75 Cal.App.5th 198, 204–205 

[petitioner convicted of murder and attempted murder either as 

Each principal, regardless of the extent or manner of 

participation is equally guilty. Principals include [¶] 1. Those 

who directly and actively commit the act constituting the crime, 

or [¶] 2. Those who aid and abet the commission of the crime.”

8 CALJIC No. 3.01 instructed that a “person aids and abets 

the commission of a crime when he [¶] (1) [w]ith knowledge of the 

unlawful purpose of the perpetrator, and [¶] (2) [w]ith the intent 

or purpose of committing, encouraging, or facilitating the 

commission of the crime, and [¶] (3) [b]y act or advice, promotes, 

encourages or instigates the commission of the crime.”
9

perpetrator or direct aider and abettor ineligible for § 1172.6 

relief].)

Finally, in his supplemental brief, Jackson appears to 

argue that the “equally guilty” language in CALJIC No. 3.00 

permitted the jury to find him guilty of the crimes without 

finding he had the requisite intent to kill. Our California 

Supreme Court rejected this argument in People v. Johnson

(2016) 62 Cal.4th 600. The court found that the same language 

in former CALCRIM No. 400 did not allow a jury to convict an 

aider and abettor of first degree murder based on the 

perpetrator’s culpability without considering the aider and 

abettor’s own mental state. (Johnson, at pp. 638, 641.) The court 

said that where a jury was instructed with CALCRIM No. 401,

9

there is no reasonable likelihood jurors would have understood 

the “ ‘equally guilty’ ” language in former CALCRIM No. 400 to 

allow them to base defendant’s liability for first degree murder on 

the direct perpetrator’s mental state rather than on defendant’s 

own mental state in aiding and abetting the crime. (Johnson, at 

p. 641; see also People v. Estrada, supra, 77 Cal.App.5th at 

p. 947.)

9 Like CALJIC No. 3.01, CALCRIM No. 401 provides that to 

find a defendant guilty as an aider and abettor, the jury must 

find that the defendant knew the perpetrator intended to commit 

the crime, defendant intended to aid and abet the perpetrator in 

committing the crime, and by words or conduct did in fact aid and 

abet the perpetrator’s commission of that crime. (See also People 

v. Johnson, supra, 62 Cal.4th at p. 641.) The aider and abettor 

must know of the perpetrator’s unlawful purpose. (CALCRIM 

No. 401.)
10

We therefore conclude that Jackson was not convicted of 

either murder or attempted murder under a now-invalid theory, 

and therefore he was ineligible for section 1172.6 relief.

DISPOSITION

The order denying James Jackson’s Penal Code section 

1172.6 petition is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

HEIDEL, J.*

We concur:

EDMON, P. J.

LAVIN, J.

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

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

Constitution.