1

Filed 6/27/24 P. v. Francis CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLOS RONTEZ FRANCIS, JR.

Defendant and Appellant.

 A168321

 (Contra Costa County 

 Super. Ct. No. 05001011394)

Carlos Francis appeals from an order denying his petition to vacate two

convictions for attempted murder that he sustained in 2012, and to 

resentence him for his other 2012 offenses. (Pen. Code, § 1172.6.)1 The trial 

court denied the petition after issuing an order to show cause, holding a full 

evidentiary hearing, and concluding that the People carried their burden of 

proving Francis is guilty of the attempted murders under current law. While 

the trial court likely erred in concluding that Francis stated a prima facie 

case for relief, it reached the correct conclusion after issuing an order to show 

1 Statutory references are to the Penal Code. Francis filed his 

resentencing petition under former section 1170.95, which was amended and 

renumbered as section 1172.6 without substantive change. (People v. Vargas

(2022) 84 Cal.App.5th 943, 947, fn. 2 (Vargas); see Stats. 2022, ch. 58, § 10.) 
2

cause, namely that Francis is not entitled to resentencing under section 

1172.6. Accordingly, we affirm.

BACKGROUND

The 2012 Convictions

In 2012, Francis and his codefendant, Miles, were jointly tried on 

multiple charges arising out of two separate gunshot attacks committed on 

April 5 and May 27, 2010. The People alleged that both sets of crimes were 

committed for the benefit of the “Deep C” criminal street gang. (§ 186.22, 

subds. (b)(1), (b)(4).) This appeal pertains exclusively to the April 2010

incident, and we limit our discussion accordingly. 

Francis and Miles were charged by amended information with 

committing the following offenses on April 5, 2010: attempted murder of 

R. Boyd (§§ 187, 664, count 1); attempted murder of S. Jackson (§§ 187, 664, 

count 2); shooting at an occupied motor vehicle (§ 246, count 3); and active 

participation in a criminal street gang (§ 186.22, subd. (a), count 7). As to the 

first three charges, the prosecution alleged distinct gun use enhancements for 

each defendant. 

For committing the attempted murder of Boyd, Francis was charged 

with enhancements for personally inflicting great bodily injury (§ 12022.7, 

subd. (a)) and for “personally” using, and “intentionally and personally”

discharging a firearm, causing great bodily injury (§ 12022.53, subd (c)–(d)). 

The prosecution did not allege that Miles personally inflicted great bodily 

injury on Boyd, or that Miles personally discharged a firearm. Instead, they 

alleged a section 12022.53 gun enhancement applied to Miles because he was 

criminally responsible for the use and intentional discharge of a firearm 

proximately causing great bodily injury and committed the attempted murder
3

for the benefit of a criminal street gang within the meaning of section 186.22

(§ 12022.53, subds. (c), (d), (e)(1)). 

For attempting to murder Jackson, Francis was not charged with an 

enhancement for personally inflicting great bodily injury, but the prosecution 

did allege that Francis personally and intentionally used and discharged a 

firearm causing her great bodily injury (§ 12022.53, subds. (c)–(d)). As to this 

attempted murder, Miles was again charged with a section 12022.53 firearm 

enhancement based on his intent to benefit a street gang (id. at subd. (e)(1)). 

So too for the charge of shooting at an occupied motor vehicle; the prosecution 

alleged Francis personally used and intentionally discharged a firearm 

causing great bodily injury to Boyd and Jackson, and Miles was charged with 

a gun enhancement for the use and intentional discharge of a firearm,

proximately causing great bodily injury, but there was no allegation that 

Miles personally used a firearm.

Jury instruction pertaining to the attempted murder charges included 

CALJIC No. 8.66, which defined the elements of attempted murder to include 

“express malice aforethought, namely, a specific intent to kill,” and CALJIC 

No. 3.02, which set forth requirements for finding a defendant guilty of 

attempted murder as an aider and abettor under the natural and probable 

consequences doctrine. Regarding sentence enhancements requiring proof of 

great bodily injury, the jury was repeatedly instructed that great bodily 

injury means “significant or substantial physical injury,” and does not include 

“trivial,” “minor,” or “moderate” harm. 

The jury found Francis guilty of both attempted murders, shooting at 

an occupied vehicle, and the gang participation offense, which was described 

in the verdict as street terrorism. The jury found true special allegations 

that in committing the attempted murder of Boyd, Francis personally 
4

inflicted great bodily injury, and personally “used, and intentionally and 

personally discharged a handgun,” causing great bodily injury. The jury also 

found that in committing the offense of shooting at an occupied vehicle, 

Francis personally “used, and intentionally and personally discharged a 

handgun,” thereby causing great bodily injury to Boyd and/or Jackson. In 

closing arguments, almost no mention was made of Jackson’s injury being 

serious, and the jury did not find that Francis personally discharged a 

handgun causing great bodily injury to her. Nor did it find that Francis 

committed his shooting offenses for the benefit of a gang. 

The jury found Miles not guilty of attempted murder, and not guilty of 

shooting at an occupied vehicle, and they failed to reach a verdict as to 

whether he committed the gang participation offense. 

Francis was sentenced to an aggregate prison term of 35 years to life, 

which was reduced on appeal to 34 years and eight months to life. (People v. 

Francis (Jan. 20, 2017, A137765) [nonpub. opn.].) 

The Resentencing Petition

In May 2022, Francis filed his petition for resentencing. Acting in 

propria persona and checking every box on the form petition, Francis

declared that: a complaint, information or indictment filed against him 

permitted the prosecutor to proceed under a theory of murder under which 

malice was imputed solely on the basis of his participation in a crime or of 

“attempted murder under the natural and probable consequences doctrine”; 

he was convicted of murder, attempted murder or manslaughter following a 

trial or pursuant to a plea in lieu of a trial where he could have been 

convicted of murder or attempted murder; and he could not presently be 

convicted of murder or attempted murder due to changes to section 188 and 
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189 that went into effect January 1, 2019, pursuant to the enactment of 

Senate Bill No. 1437. 

The People opposed the petition on the ground that Francis is ineligible 

for resentencing as a matter of law. They argued that the record of Francis’s 

2012 convictions shows that he was the actual shooter and was convicted of 

attempted murder as the actual attempted killer of Boyd and Jackson. The 

People reasoned that the jury’s findings that Francis personally used a 

firearm and personally inflicted great bodily injury establish that he 

“indisputably acted as the shooter as a matter of law.” Consequently, the 

People requested that the court deny Francis’s petition for failure to state a 

prima face case.

With the assistance of appointed counsel, Francis filed a reply brief in 

support of his petition. Disputing that he was ineligible for resentencing, 

Francis argued that at the prima facie stage the court was required to accept 

the petition allegations as true because they were not contradicted by his 

record of conviction. Francis relied on the fact that the jury at his 2012 trial 

had been instructed regarding aider and abettor liability and the natural and 

probable consequences doctrine, contending it was conceivable the jury relied 

on these principles to convict him of the attempted murders without finding 

he was the “ ‘actual killer’ ” who attempted to kill Boyd and Jackson.

The Prima Facie Case Finding

On November 15, 2022, the trial court issued an order to show cause, 

finding that the petition allegations were sufficient to make a prima facie 

case of entitlement to relief because they were not contradicted by the “very 

limited record of conviction.” The court reasoned that the information 

charged Francis with attempted murder in a generic manner that permitted 

the prosecution to proceed under the natural and probable consequences 
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doctrine; the jury instructions permitted the jury to find Francis guilty of 

attempted murder if they believed that murder was a natural and probable 

consequence of assault with a firearm or shooting at an occupied dwelling;

and the natural and probable consequences doctrine had been rendered 

invalid by amendments to section 188 and 189. 

In reaching its conclusion, the court acknowledged the record of 

conviction does show Francis was the actual shooter because the jury made 

special findings that he personally inflicted great bodily injury and personally 

used a firearm causing great bodily injury. But the court concluded those

findings were not dispositive because they did not establish that as a matter 

of law Francis harbored the specific intent to kill when he shot the victims. 

Thus, the court found, “[g]iven the fact that the jury was instructed on the 

natural and probable consequences doctrine, the defendant has made a prima 

facie showing that he is eligible for relief.” 

The Order Denying Francis’s Petition

At an April 2023 hearing on the order to show cause, the People 

submitted evidence of the court file and trial transcript pertaining to 

Francis’s 2012 criminal case. The court heard argument and took the matter 

under submission. On June 7, 2023, the court issued an order denying 

Francis’s petition for resentencing. 

Factual Findings

The court limited its consideration of the trial record to evidence that 

pertained to the April 2010 shooting incident. It ruled further that it would 

not consider (1) evidence that had been introduced only against Miles or

(2) evidence of “gang activity” that was no longer admissible under current 

law, citing People v. Sanchez (2016) 63 Cal.4th 665. From the evidence, the 

court made the following findings of fact.
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The shooting attack occurred in the city of San Pablo on April 5, 2010, 

at around 11:00 a.m. At the time, Jackson was pregnant with Boyd’s child 

and Boyd was driving Jackson to her home. While stopped at an intersection, 

Boyd noticed a truck driving in the wrong lane and pulling up alongside his 

car. Francis was in the front passenger seat of the truck, holding a black 

gun, and Miles was in the back passenger seat. Boyd knew both men, who 

had played baseball with his younger brother. Boyd did not see Miles holding 

a gun, nor did he see the driver of the truck. He heard gunshots and his car 

window shatter before he lost consciousness. Boyd was shot in the temple 

and neck. Jackson was shot in the leg. 

At around 8:30 p.m. on the day of the shooting, Francis sent a text 

message to his cousin, which stated “ ‘check to see if he’s dead for me,’ ” and 

Francis’s cousin responded that she would. 

In the aftermath of the shooting, Boyd did not initially tell the police 

what he remembered about the incident because he was afraid for his family. 

However, in June 2010, he reported that Francis was the shooter. Boyd 

identified Francis from a six-pack photo lineup, but he was afraid about 

retaliation against his family and did not want to testify. At trial, Boyd 

testified that Francis and Miles were both in the courtroom and ultimately 

identified Francis from his photograph. 

Forensic evidence offered at trial showed that eight gunshots were fired 

at Boyd’s car from a vehicle that passed on the driver’s side, leaving seven 

bullet holes in the car. Three shots were fired when the shooter’s car was 

slightly behind Boyd’s car, one or two were fired when the cars were next to 

each other, and the shooter fired his gun three more times as his vehicle 

moved ahead of Boyd’s car. A nearby gunshot recording device indicated that 

the shots were fired in rapid succession. 
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Findings of Law

The resentencing court framed its inquiry as whether the prosecution 

carried its burden “to show, beyond a reasonable doubt, that the petitioner is 

guilty of [attempted] murder under the current state of California law.” 

(Citing § 1172.6, subd. (d)(3).) Accordingly, the court separately addressed 

the elements of attempted murder, which require (1) the specific intent to kill 

another person, and (2) a direct but ineffective step toward killing that 

person. 

Regarding specific intent, the court made two material findings. First, 

Francis’s conduct during the incident supports an inference that he harbored

express malice. (Citing, e.g. People v. Smith (2005) 37 Cal.4th 733, 741–742

(Smith).) Specifically, Francis shot at Boyd and Jackson “at point blank 

range,” and hit them both, causing injury. He aimed his gun directly at both 

victims and fired eight shots into their vehicle, as his vehicle drove past them 

in their stopped car. Second, “in addition to proving express malice,” the 

prosecution proved Francis’s intent to kill Jackson with evidence that he 

created a “kill zone,” and that Jackson was in that kill zone when she was 

shot. (Citing People v. Canizales (2019) 7 Cal.5th 591, 607 (Canizales).)

Regarding the other element of attempted murder, the court found the 

prosecution proved that Francis committed an act in furtherance of his intent 

to kill: “Clearly, by actually shooting both victims, the defendant committed 

an act in furtherance of his intent to kill.” 

In light of its findings that the prosecution proved Francis committed 

two counts of attempted murder, the court concluded that Francis is not 

entitled to resentencing and denied his petition. 
9

DISCUSSION

Francis contends the order denying his petition must be reversed 

because the evidence does not support the trial court’s finding that he is 

guilty of the attempted murder of Jackson. The People seek affirmance of the 

order on two independent grounds, contending that (1) Francis is ineligible 

for resentencing as a matter of law; and (2) the record supports the finding 

that Francis is guilty of Jackson’s attempted murder under current law.

I. Resentencing Law and Procedure

In 2018, the Legislature enacted Senate Bill No. 1437 (2017–2018 

Reg. Sess.) (Senate Bill 1437), which amended provisions of the Penal Code 

pertaining to the felony-murder rule (§ 189) and the natural and probable 

consequences doctrine (§ 188) in order “ ‘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.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 

959 (Lewis).) Senate Bill 1437 also “created a special procedural mechanism 

for those convicted under the former law to seek retroactive relief under the 

law as amended,” by filing a petition for resentencing under section 1170.95, 

which was later renumbered as section 1172.6. (People v. Strong (2022) 13 

Cal.5th 698, 708 (Strong); see also Lewis, at p. 959.) 

In 2021, the Legislature enacted Senate Bill No. 775 (2021–2022 

Reg. Sess.), which amended section 1172.6 to allow defendants convicted of 

attempted murder to file resentencing petitions. (§ 1172.6, subd. (a); see 

People v. Hurtado (2023) 89 Cal.App.5th 887, 891 (Hurtado).) Section 1172.6 

now provides that a resentencing petition may be filed by a person previously 

convicted of murder pursuant to a theory under which malice is imputed to a 

person based solely on that person’s participation in a crime, a person 
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convicted of “attempted murder under the natural and probable consequences 

doctrine,” and a person convicted of manslaughter, “when all of the following 

conditions apply”: (1) the charging document filed against the petitioner 

permitted the prosecution to proceed under a theory of murder under which 

malice is imputed to a person based solely on the person’s participation in a 

crime, or pursuant to a theory of “attempted murder under the natural and 

probable consequences doctrine”; (2) the petitioner was convicted of murder, 

attempted murder or manslaughter following a trial or plea proceeding at 

which the petitioner could have been convicted of murder or attempted 

murder; and (3) the “petitioner could not presently be convicted of murder or 

attempted murder because of changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (a).)

The procedure for seeking resentencing relief “begins with the filing of 

a petition containing a declaration that all requirements for eligibility are 

met [citation], including that ‘[t]he petitioner could not presently be convicted 

of murder or attempted murder because of changes to [Penal Code] Section 

188 or 189 made effective January 1, 2019,’ the effective date of Senate Bill 

1437.’ ” (Strong, supra, 13 Cal.5th at p. 708, quoting § 1172.6, subd. (a)(3).) 

Upon receipt of a facially valid petition, “the court must evaluate the petition 

‘to determine whether the petitioner has made a prima facie case for relief.’ ” 

(Strong, at p. 708.) At that stage, the “court may look at the record of 

conviction, which will necessarily inform its ‘prima facie inquiry under 

section [1172.6], allowing the court to distinguish petitions with potential 

merit from those that are clearly meritless.’ ” (People v. Williams (2022) 86 

Cal.App.5th 1244, 1251 (Williams); see Lewis, supra, 11 Cal.5th at p. 971.) 

“If the petition and record in the case establish conclusively that the 

defendant is ineligible for relief, the trial court may dismiss the petition.” 
11

(Strong, supra, 13 Cal.5th at p. 708, citing § 1172.6, subd. (c).) If, on the 

other hand, “the defendant has made a prima facie showing of entitlement to 

relief, ‘the court shall issue an order to show cause.’ ” (Strong, at p. 708, 

quoting § 1172.6, subd. (c).)

II. Francis’s Prima Facie Showing 

As a preliminary matter, we reject Francis’s contention that the People 

waived the right to dispute the prima facie finding in this case by electing not 

to file an appeal from that ruling. Francis fails to support his premise that 

the prima facie finding was an independently appealable order. “ ‘ “It is 

settled that the right of appeal is statutory and that a judgment or order is 

not appealable unless expressly made so by statute.” ’ ” (People v. Mena

(2012) 54 Cal.4th 146, 152.) Section 1238 lists orders and judgments that 

may be appealed by the People, which include an “order made after 

judgment, affecting the substantial rights of the people.” (§ 1238, 

subd. (a)(5).) The prima facie finding that triggers an order to show cause in 

a section 1172.6 proceeding is a post judgment order, but it is only a 

preliminary ruling that does not by itself entitle the petitioner to any relief, 

and thus does not necessarily affect the substantial rights of the People.

Francis cites People v. Hampton (2022) 74 Cal.App.5th 1092

(Hampton), which is inapposite, as that case was an appeal by the People 

from an order granting a petition for resentencing. The Hampton court found

that an order determining that the “defendant is entitled to [resentencing]

relief qualifies as ‘[a]n order made after judgment, affecting the substantial 

rights of the people,’ and is appealable under section 1238, subdivision (a)(5).” 

(Id. at p. 1101.) Hampton does not hold that a prima facie finding in a 

resentencing proceeding is an independently appealable ruling.
12

Francis contends that Hampton is nevertheless “on point” because the 

Hampton court analogized section 1172.6 to section 1170.126, which codifies 

the procedure for seeking resentencing under the Three Strikes Reform Act of 

2012 (the Reform Act). (Hampton, supra, 74 Cal.App.5th at pp. 1100–1101.) 

Indeed, the Hampton court did recognize that the two schemes share a 

common feature, in that the initial eligibility determination under both 

resentencing schemes is not just an “ ‘idle exercise,’ ” but affects the People’s 

burden of proof going forward. (Id. at p. 1101, quoting People v. Superior 

Court (Martinez) (2014) 225 Cal.App.4th 979, 987 (Martinez).)2 However, the 

Hampton court did not find that this burden shifting necessarily affects a 

substantial right of the People. Instead, the court held that it was the order 

granting the resentencing petition that “resulted in a substantial 

modification of the original judgment” and was therefore appealable under 

section 1238, subdivision (a)(5). (Hampton, at p. 1101.)

Francis offers no authority supportive of his contention that this court 

“should not” consider whether he made a prima facie showing to justify 

issuance of the order to show cause. Of course, a finding that a prima facie 

case has not been made is reviewable in an appeal from an order denying a 

resentencing petition. (See e.g., Williams, supra, 86 Cal.App.5th 1244; People 

v. Harrison (2021) 73 Cal.App.5th 429 (Harrison).) We see no reason why the 

2 Martinez held that an initial eligibility ruling under the Reform Act 

was properly challenged by the People via a writ petition because either: 

(1) the order was appealable, and an appeal was not an adequate remedy 

under the circumstances of that case; or (2) the trial court acted in excess of 

its jurisdiction. (Martinez, supra, 225 Cal.App.4th at p. 988.) Martinez’s

appealability analysis was subsequently discredited and disregarded as dicta 

in People v. Montellano (2019) 39 Cal.App.5th 148, 155–157 [holding that the

preliminary eligibility ruling under the Reform Act is not directly 

appealable]. 
13

same should not be true of a finding that a prima facie case has been made.

Such a finding is reviewable in an appeal from an order denying—or 

granting—a resentencing petition. After all, where a prima facie finding has 

been made in error, a defendant is, as a matter of law, ineligible for relief.

More difficult is the question whether Francis, in fact, made a prima 

facie showing that he is entitled to relief. Rulings made at the prima facie 

stage of a section 1172.6 resentencing proceeding are reviewed de novo. 

(Williams, supra, 86 Cal.App.5th at pp. 1251–1252; Harrison, supra, 73 

Cal.App.5th at p. 437.) We conclude that the allegation in Francis’s petition 

that he can no longer be found guilty of attempted murder due to changes to 

section 188 and 189 is refuted by his record of conviction, which shows that 

he was convicted as the actual attempted murderer—the person who shot the 

victims. Although two defendants were charged with participating in the

attempted murders, the jury found only Francis guilty of those offenses, and 

only Francis was charged with, or found by the jury to have been, the person 

who personally discharged a firearm inflicting great bodily injury during the 

April 2010 incident. 

The fact that Francis was the actual shooter makes him ineligible for 

resentencing relief as a matter of law because it is definitive proof that the 

attempted murder convictions were not based on a theory of imputed malice 

that was rendered invalid by amendments to section 188 and 189. (Hurtado, 

supra, 89 Cal.App.5th at p. 893 [as the “attempted murderer” petitioner was

ineligible for resentencing as a matter of law]; see also People v. Delgadillo

(2022) 14 Cal.5th 216, 233 [petitioner not entitled to relief when the “record 

. . . makes clear” he was the actual killer]; People v. Harden (2022) 81 

Cal.App.5th 45, 55, 57 [affirming denial of petition at prima facie stage when 
14

record of conviction “conclusively” established petitioner was the actual 

killer].) 

The trial court recognized that Francis was convicted as the actual 

shooter, but it concluded that the jury’s special circumstance findings were 

not dispositive because they did not incorporate a finding that Francis 

harbored the specific intent to kill. This reasoning fails to consider other 

relevant parts of the record of conviction, including the jury verdicts finding 

Francis guilty of both attempted murders and his codefendant Miles not

guilty of either crime. The jury was instructed that the crime of attempted 

murder requires proof of two elements: “1. A direct but ineffectual act was 

done by one person towards killing another human being; and [¶] 2. The 

person committing the act harbored express malice aforethought, namely, a 

specific intent to kill unlawfully another human being.” In finding that 

Francis was guilty of the attempted murders and Miles was not, the jury 

necessarily found that Francis was the actual shooter and that he harbored a 

specific intent to kill when he shot the victims.

Apparently, the trial court believed Francis might be eligible for 

resentencing even though he was the shooter because the jury was instructed 

regarding the natural and probable consequences doctrine. To be sure, the 

natural and probable consequences doctrine is no longer a valid theory of 

attempted murder liability. (§ 188, subd. (a)(3).) And the jury was instructed 

on natural and probable consequences as part of the aiding and abetting 

instructions. However, the record of conviction in this case demonstrates 

that Francis’s convictions for the attempted murder of Boyd and Jackson

were not based on the natural and probable consequences doctrine because he 

was not convicted on an aiding and abetting theory. 
15

The jury was instructed that in order to find a defendant guilty of 

attempted murder as an aider and abettor under a “natural and probable 

consequences” theory, they had to be “satisfied beyond a reasonable doubt” 

that the following four facts were true: “1. The crimes of Assault with a 

Firearm and/or Shooting at an Occupied Motor Vehicle were committed; 

[¶] 2. That the defendant aided and abetted those crimes; [¶] 3. That a coprincipal in that crime committed the crimes of Attempted Murder; and 

[¶] 4. The crime of Attempted Murder was a natural and probable 

consequence of the commission of the crimes of Assault with a Firearm and/or 

Shooting at an Occupied Motor Vehicle.” Considered together, the verdicts 

and special circumstance findings show that the jury did not find that 

Francis was an aider and abettor, nor did they find that a coprincipal 

committed the attempted murders. Instead the jury found that Francis alone 

was guilty of attempted murder and of personally using a firearm to inflict 

great bodily injury. 

Because the record of Francis’s 2012 convictions shows conclusively 

that he is not eligible for resentencing, he did not make a prima facie showing 

that he was entitled to relief under section 1172.6. Thus, the court would 

have been justified in denying this petition at the prima facie stage. (Lewis, 

supra, 11 Cal.5th at p. 972.) Instead, the court issued an order to show cause 

based on its view that a prima facie showing had been made. Although the 

ensuing evidentiary hearing was unnecessary, it garnered findings that 

eliminate any arguable doubt regarding Francis’s ineligibility for 

resentencing.

III. Francis is Guilty of the Attempted Murder of Jackson

As our background summary reflects, the trial court found that the 

People proved Francis is guilty of both attempted murders under current law. 
16

On appeal, Francis concedes implicitly that he is guilty of Boyd’s attempted 

murder and that he shot Jackson. But he contends that the People failed to 

prove the second element of attempted murder as to Jackson—that he 

harbored the specific intent to kill her. “While the superior court acts as an 

independent fact finder in determining whether the People have met their 

burden, on appeal, the reviewing court applies the substantial evidence 

standard to the superior court’s findings.” (Vargas, supra, 84 Cal.App.5th at 

p. 951.)

The specific intent element of attempted murder is established with 

proof of express malice, as these two concepts “are, in essence, ‘one and the 

same.’ ” (Smith, supra, 37 Cal.4th at p. 739.) “Express malice requires a 

showing that the assailant ‘ “ ‘either desire[s] the result [i.e., death] or 

know[s], to a substantial certainty, that the result will occur.’ ” ’ ” (Ibid.) “[I]t 

is well settled that intent to kill or express malice, the mental state required 

to convict a defendant of attempted murder, may in many cases be inferred 

from the defendant’s acts and the circumstances of the crime. [Citation.] 

‘There is rarely direct evidence of a defendant’s intent. Such intent must 

usually be derived from all the circumstances of the attempt, including the 

defendant’s actions. [Citation.] The act of firing toward a victim at a close, 

but not point blank, range “in a manner that could have inflicted a mortal 

wound had the bullet been on target is sufficient to support an inference of 

intent to kill. . . .” ’ ” (Id. at p. 741.) Indeed, an inference that the shooter 

acted with intent to kill is not necessarily foreclosed when the evidence shows 

that the shooter fired only once before abandoning his efforts, or that the 

victim escaped death due to the shooter’s poor marksmanship. (Ibid.)

Here, the prosecution presented evidence that Francis fired not just one 

but eight bullets while in close range and direct proximity of two unarmed 
17

victims sitting in their car. Francis fired multiple shots in rapid succession 

while his victims were essentially trapped in a stationary vehicle, and indeed 

he managed to hit them both. This evidence supports a reasonable inference 

that Francis acted with express malice when he shot Jackson. (Smith, supra, 

37 Cal.4th at pp. 739, 741.) Thus, we conclude that the trial court’s finding

that Francis attempted to murder Jackson is supported by substantial 

evidence.

Francis disputes the finding of express malice, contending there is no 

evidence that he “knew to a substantial certainty” that Jackson’s death would 

occur. This argument overlooks that such knowledge can be inferred from 

evidence of Francis’s own conduct as the shooter who attacked Boyd and 

Jackson. We also reject Francis’s contention that the trial record shows he 

did not know Jackson was in the car. Francis cites Jackson’s trial testimony 

that she did not see the shooter, which does not establish that Francis did not 

see her. Boyd testified that he saw and recognized Francis and Miles before 

Francis fired a barrage of bullets at the victims, and Jackson testified that,

before shots were fired, Boyd pushed her head down in an attempt to protect 

her. Francis would by that time have had ample opportunity to see Jackson

in the passenger seat next to Boyd as the car Francis was riding in pulled up 

from behind Boyd’s vehicle. This conclusion finds additional support in 

evidence that Francis’s gun shots left bullet holes in the back and front 

panels on the driver’s side of Boyd’s car, shattered the back and front 

windows of the driver’s side, and also shattered the front windshield. 

Substantial trial evidence shows that Francis was positioned to see both 

victims before and during the time when he shot them. The law does not 

require that Francis have had a clear view of Jackson’s face to be found guilty 

of her attempted murder.
18

Francis also disputes the trial court’s finding that Francis’s intent to 

kill Jackson was established by evidence that Francis intended to create a 

“kill zone” that included Jackson. Francis argues that although his 2012 jury 

was instructed regarding the kill zone theory of proving specific intent, the 

Supreme Court has since limited the scope of this doctrine so that it no longer 

justifies his conviction for the attempted murder of Jackson. (Citing 

Canizales, supra, 7 Cal.5th at p. 602.) 

Our finding that there is substantial evidence of Francis’s express 

malice makes it unnecessary to consider his arguments about the kill zone 

theory, but in any event they lack merit. In its order denying the 

resentencing petition, the trial court provided a detailed explanation of the 

kill zone theory of culpability, including its current requirements as set forth 

in Canizales. Canizales states that in order for a jury to base a finding of 

specific intent on a kill zone theory, they must conclude “(1) the 

circumstances of the defendant’s attack on a primary target, including the 

type and extent of force the defendant used, are such that the only reasonable 

inference is that the defendant intended to create a zone of fatal harm—that 

is, an area in which the defendant intended to kill everyone present to ensure 

the primary target’s death—around the primary target and (2) the alleged 

attempted murder victim who was not the primary target was located within 

that zone of harm.” (Canizales, at p. 607.)

Here, the circumstances of Francis’s shooting attack show that Boyd 

and Jackson were seated next to each other in a stationary vehicle, and 

Francis was in close range of both victims when he fired his gun eight times 

into the vehicle. These circumstances constitute substantial evidence that 

Francis harbored the requisite specific intent to kill both victims “within the 

zone of fatal harm.” (Canizales, supra, 7 Cal.5th at p. 607.) 
19

Disputing that he intended to create a kill zone, Francis relies on cases 

that involved materially different facts. (People v. Booker (2020) 58 

Cal.App.5th 482; People v. Cardenas (2020) 53 Cal.App.5th 102.) In Booker, 

the defendant fired directly at his target victim; there was no evidence he 

fired a “spray of bullets” or that any bullets reached the passenger side of the 

victim’s car; and indeed the victim’s passenger was not injured. (Booker, at 

p. 500.) Here, Francis rapidly fired multiple bullets while in close range of 

Boyd’s car, spraying the entire left side of the car and injuring both Boyd and 

Jackson. Cardenas involved an altercation among two groups of strangers 

that occurred in a restaurant parking lot. (Cardenas, at p. 106.) The 

appellate court found evidence the defendant had fired shots at a specific 

victim, which subjected “everyone near” the target to a lethal risk, but this

evidence did not support a reasonable inference that the defendant intended 

to create a kill zone. (Cardenas, at pp. 115–116.) This case is distinguishable 

because Jackson was confined in a stationary vehicle sitting next to Boyd 

when Francis sprayed a barrage of bullets directly at them. This evidence, 

which supports an inference of express malice, also supports an inference 

that Francis intended to create a kill zone within Boyd’s car that included 

both Boyd and Jackson. (See People v. Mumin (2023) 15 Cal.5th 176, 205–

206 [“fact a defendant chose to shoot into a confined space or at a defined 

group in close proximity to each other strengthens the inference that the 

creation of a kill zone was intended”]; People v. Bland (2002) 28 Cal.4th 313, 

330–332 [“defendant and his cohort fired a flurry of bullets at the fleeing car 

and thereby created a kill zone” that included passengers].) 

For all these reasons, we reject Francis’s contention that there is 

insufficient evidence to prove he intended to kill Jackson. The trial court’s 

findings that the prosecution proved beyond a reasonable doubt that Francis 
20

committed two counts of attempted murder is supported by substantial 

evidence. These findings establish an alternative valid basis for denying the 

resentencing petition. 

DISPOSITION

The order denying Francis’s petition for resentencing is affirmed.

TUCHER, P. J.

WE CONCUR:

FUJISAKI, J.

RODRÍGUEZ, J.

People v. Francis (A168321)